author: WELBORN, Commissioner.

text:
    Sandra KUNGLE, a Minor, b/n/f and Father, Arthur Kungle, and Arthur Kungle, Plaintiffs-Appellants, v. Wayne AUSTIN and John Jewsbury, d/b/a Tumblin Town, Defendants-Respondents.
    No. 49970.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 13, 1964.

      Charles D. Tudor, Joplin, Edward V. Sweeney, Monett, for appellants.
    Robert E. Seiler, Joplin, for respondents, Seiler, Blanchard & Van Fleet, Joplin, of counsel.
   WELBORN, Commissioner.

Plaintiff Sandra Kungle, thirteen years of age at the time, was injured, on June 9, 1960, in a fall at the trampoline center in Joplin owned and operated by the defendants under the name of “Tumblin Town.” Her claim for damages, in the amount of $35,000, brought through her father as her next friend, and her father’s claim for $2,500 medical expenses incurred as a result of Sandra’s injury were tried to a jury in the Jasper County Circuit Court, which returned a verdict for defendants. After their motion for new trial had been overruled, plaintiffs appealed to this court. In view of the amount sued for, we have jurisdiction of the appeal.

Defendants’ trampoline center, located on West Seventh Street in Joplin, began operation on June 5, 1960. It consisted of 15 trampolines arranged in 3 rows of 5. The trampolines were numbered consecutively from 1 to 15. Each trampoline consisted of a rectangular braided nylon and rubber perforated mat, 6 ft. x 12 ft. in size. The center of the mat was marked with a white cross and not perforated. The mat was suspended over a 9 ft. x 15 ft. pit, 42 to 48 inches deep. A wooden framework, made of 2 x 12’s attached to form an L, surrounded the edges of the pit. One side of the L was vertical to the ground and extended downward on the sides of the pit. The other side was horizontal with and lay on the ground. Attached to the wooden framework was a 9 ft. x 15 ft. steel frame. Steel coil springs, approximately 18 inches in length, extended from the steel frame to the mat. There were 16 such springs evenly spaced at each end of the mat and 32 along each side. The springs were attached to the mat on one end and at the other to the steel frame in eyelets on a flange extending from the frame. The springs held the mat taut and provided the energy which propelled users of the device into the air as they sprang or jumped upon it. As mentioned, the top 2 x 12 of the wooden framework lay flat on the ground. On top of the entire length of the four pieces of lumber surrounding each pit was a foam rubber mat covered with naugahide and fastened in position over the board by tabs with brass eyelets and by nails to the front and back of the board. The pad extended only to the edge of the 2 x 12's and did not extend over the metal frame or flange to which the springs were attached.

Sandra accompanied two 15-year-old girls, Joyce Miller and Jama Lewis, and the parents of the Miller girl to Tumblin Town on the evening of June 9, 1960. Sandra had not been there previously and had had no experience on trampolines. A charge of 400 was paid for each of the three girls for their admission to the trampoline area and their use of the devices. They were directed by an attendant to pads 4 and 9 which adjoined each other. Joyce Miller had been to Tumblin Town previously and received instructions from Mrs. Ytell, a physical education instructor whom the defendants employed to instruct persons in the use of trampolines. Joyce explained to Sandra the technique for the use of the device, showing her how to start and stop and do a knee drop. According to the plaintiffs’ witnesses, Mrs. Ytell was present near the trampoline on which Sandra was jumping, but Sandra received no instructions from her. Defendants’ witnesses, including Mrs. Ytell, testified that Sandra was given instructions by Mrs. Ytell.

Sandra jumped on trampoline 4 for approximately four or five minutes while Joyce was on 9. The two girls then exchanged trampolines and Sandra started jumping on 9. She testified that she “bounced around a couple of times * * * to get the feel of the trampoline” and then tried a knee drop. A knee drop is executed by springing in the air on one’s feet, landing on the pad on one’s knees, rebounding into the air and landing on one’s feet again. When she started the knee drop, Sandra was in the center of the trampoline, facing north. She made one knee drop successfully and started another. According to her testimony, as she dropped to her knees the second time, “I lost my balance and I pitched forward, and I tried to catch myself and I reached my hands out and when my elbows came into contact with the pad, it flew up and my arms slid under the stuffed place and my elbows down and my face hit the concrete.”

Sandra acknowledged that she got off the center of the mat in executing the knee drops. She said that she was not jumping ■very high, between a foot and two feet, and that, on the first knee drop, she traveled to the north of the center of the mat “as much as it could be north after one jump.”

Her face struck what she described as “the concrete, the back of the pipe.” Her jaw . was fractured and she lost several teeth. Her injuries required her hospitalization for several days. The petition charged the defendants with negligence in three regards: (1) failure to pad the pipe frame and that the bolsters or pads around the perimeter were not firmly attached; (2) failure to provide proper supervision by determining the proficiency of the invitees in the use of the trampoline device which was alleged to be inherently dangerous when used by an inexperienced person; (3) failure to give plaintiff warning of the dangers involved in using a trampoline device such as keeping balance, place on the mat to land, etc.

At the trial, plaintiffs’ case was submitted by instructions charging that the defendants were negligent in failure to furnish the plaintiff with adequate instruction and in permitting the pads on the outer perimeter of the trampoline to be loose and not securely fastened so that when plaintiff fell forward, her hands came in contact with the pad, that the same thereupon moved out of position by reason of which her mouth struck certain hard portions, causing her to be injured. The defendants gave instructions setting up the defenses of assumption of risk, contributory negligence, lack of negligence on the part of defendants and the converse of plaintiffs’ instructions. On this appeal three issues are presented by the plaintiffs relating to the instructions on which the case was submitted. The defendants, in addition to denying error in any of the respects urged by the appellants, contend that, in any event, plaintiffs failed to make a submissible case and, therefore, the judgment should be affirmed.

In support of their contention in the latter regard, respondents have cited four cases involving injuries to trampoline users, in each of which plaintiff was held, as a matter of law, not entitled to recover: Respondents contend that the principles of those cases apply here and such principles, as a matter of law, preclude recovery by the plaintiffs. Respondents state that these are the only fo.ur cases in appellate courts involving trampoline injuries with which they are familiar and we find no other.

The first case is Myers v. Sky Jump, Inc., decided by the Tennessee Court of Appeals on August 8, 1962. Apparently, this decision is unreported; however, a copy of the court’s opinion has been included in the respondents’ brief. A 14-year-old girl, who had watched an older brother on a trampoline for about an hour on a prior visit, on her second visit to the center, while using the trampoline herself, fell as she was attempting to get off the mat. She charged negligence by failure to provide proper instruction and failure to provide a pad or cover for the springs into which she fell. The court found no negligence on the part of the defendant. The court also found plaintiff guilty of contributory negligence as a matter of law and that she had assumed the risk of the injury that she received.

The second case is Williams v. Lombardini, 38 Misc.2d 146, 238 N.Y.S.2d 63. There the plaintiff, a 19-year-old college student, was injured when he tried to do a forward flip on a trampoline. He went too far from the center of the mat and instead of landing on his feet struck his nose on the edge of the pit. Defendant’s motion for summary judgment was sustained on the ground that plaintiff assumed the risk incidental to the use of the device. The court stated:

“ * * * One of his age, education and intelligence must be presumed to have foreseen that when he propelled himself through the air in a forward flip or somersault by means of this device, he ran the risk of landing either on the frame work or beyond in such a fashion as to cause injury.”

The third case, Daniel v. S-Co Corporation (Jumpin Gyminy Trampoline Center), 124 N.W.2d 522, was decided by the Iowa Supreme Court. The plaintiff, a 35-year-old man started to jump on a trampoline. After about five jumps, he stated that he remembered “starting to bounce and the next thing I knew was waking up over on the side of the pit, lying, I don’t remember whether on my back or my stomach.” Plaintiff’s petition charged negligence by failure to warn as to inherent dangers in the device, failure to provide trained supervisory personnel to instruct and protect the plaintiff and permitting plaintiff, an inexperienced person, to use the device without instruction or supervision. In reversing outright a verdict of the trial court in favor of plaintiff, the court said (124 N.W.2d, 1. c. 526):

* ‡ * There was no hidden danger involved in the trampoline. It was an athletic exercise of jumping upon the mat. It is true it was plaintiff’s first experience in this type of amusement. The complete mechanism was in full view of plaintiff and the instructions were clear and definite. * * *
"As far as instruction and supervision is concerned the posted notice stated in plain language that if plaintiff desired instruction he could ask for it. He testified categorically he did not ask for any instruction. As far as supervision is concerned it was not necessary that defendant place someone at every trampoline to observe the users. As near as we can tell from plaintiff's evidence, his fall would have happened as it did, even if defendant had a dozen supervisors surrounding the trampoline and watching plaintiff.”

The fourth case cited by respondents is Ford v. Brandan, Tenn.App., 367 S.W.2d 481. In that case a 16-year-old boy was injured. A companion had pushed the plaintiff, causing him to fall. Plaintiff’s suit was based on negligence by failure to give instructions, failure to warn plaintiff or properly supervise his use of the trampoline and failure to prevent horseplay. The court upheld a directed verdict for defendants on the grounds that there was no proof of negligence, that plaintiff had assumed the risk of the injury and that the injury was due to horseplay which the defendants were not required to foresee.

We do not believe that any of these cases are wholly analogous to the present case. Leaving for the present the issue of lack of instruction, plaintiffs’ charge of negligence in the construction and maintenance of the trampoline was based specifically on a charge of failure properly to affix the padding on the framework. Plaintiffs’ evidence, if believed by the jury, would have supported a finding that the pad at the end of the trampoline on which she fell was loose and not firmly attached and that failure to attach the pad properly was negligence and that such negligence was a proximate cause of her injury.

Obviously, the edge of the wooden and metal framework surrounding the pit was a potential source of injury to persons using the mats. To guard against such injuries the defendants placed padding on the wooden portions. Persons using the mats were entitled to rely on the proper attachment of the pads to perform the functions for which they were intended. Falling on the pad may have been one of the usual hazards of jumping on a trampoline. However, we would not say that, as a matter of law, falling on the pad and sustaining injury because the pad had not been properly attached to the framework is a usual hazard to which the jumper voluntarily exposed himself. The user in such a situation is in a position similar to that of the baseball fan who seeks protection behind a screen provided for such purpose, but who, because of the defective construction of the screen is not afforded the protection which is sought. An injury from a batted ball in such circumstances is not one of the risks which the patron of a baseball game assumes. Edling v. Kansas City Baseball and Exhibition Company, 181 Mo.App. 327, 168 S.W. 908. A fan in such situation is entitled to rely upon the protective device performing the function for which it was obviously designed. Similarly, a trampoline user should be permitted to rely upon protective pads affording the protection which their proper installation would provide. Therefore, we reject the respondents’ contention that the plaintiffs here failed to make a submissible case on this charge of negligence.

As for the failure to provide instruction, we believe that plaintiffs did not make a submissible case of negligence on that issue. Sandra testified that she received no instruction from any employee of defendants. However, her testimony was that Joyce Miller, whom she had accompanied to the trampoline center, had been there before and explained to her how to start and stop the device, and how to do a knee drop. Sandra was an intelligent child and, according to her testimony, she realized, without being told, that she should stay in the center of the mat, that she should keep her balance. She also realized that the whole idea of using the device was to stay on the mat at all times and that there was nothing hard to strike if she stayed on the mat. She said that she had the common sense to figure out the importance of staying in the center of the mat, but that, when she did the knee drops, she was moving toward the north end of the mat, away from the center.

Plaintiff Sandra’s testimony revealed her awareness of the propensities of the trampoline and particularly the necessity of remaining in the center of the mat. There is no basis for any assumption that instruction would have made her any more aware of the possible effects of failing to stay in the center. The plaintiff obviously appreciated that her failure to do so involved the possibility of falling. As a participant in the sport or game, even though a minor, the defendants did not owe her any duty to warn her of the obvious perils of the use of the device. “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball bame the chance of contact with the ball.” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482, 166 N.E. 173, 174. Furthermore, while aware of the hazards inherent in the operation of the device, plaintiff was also aware of the fact that instruction was available. She testified that, although the instructor was at the trampoline on which she was jumping, she did not ask the instructor for any assistance because she “had nothing to ask her.”

In view of all of these circumstances appearing in plaintiffs’ evidence, we are of the opinion that the submission of a charge of negligence in failing to provide instruction was not supported by the evidence and that the case should not have been submitted to the jury on that theory. Daniel v. S-Co Corporation (Iowa), supra, 124 N.W.2d, 1. c. 526.

Appellants’ first ground of error is that, in the defendants’ instruction on contributory negligence, the jury was told that Sandra was required to “exercise ordinary care for her own safety.” Appellants contend that Sandra, being only thirteen years of age at the time of the accident, was required to exercise only the care which would he exercised by a child of like age, capacity and experience under like circumstances and that the respondents’ instructions imposed upon her the standard of care applicable to adults.

There was no instruction given defining “ordinary care” as applied to Sandra. Plaintiffs offered an instruction defining “ordinary care,” but it was limited to the defendants and neither side purported to define the term as applied to Sandra. There can be no question that an instruction defining the standard of care to which her conduct was required to conform would have been proper. Warren v. Kansas City, Mo.Sup., 258 S.W.2d 681, 683-684(3). However, failure to give such direction is nondirection, not misdirection. Plaintiffs, if dissatisfied with the defendants’ instructions because of the lack of definition of “ordinary care” as applied to Sandra, had the right to offer an instruction on the subject as the plaintiff did in the cases of Hosford v. Clark, Mo.App., 359 S.W.2d 424, and Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57, cited and relied upon by the appellants here. Having failed to offer such an instruction, the appellants cannot now claim error on the part of the trial court. Henson v. Jasinsky, Mo.Sup., 251 S.W.2d 601, 603(1); Thurman v. St. Louis Public Service Company, Mo.Sup., 308 S.W.2d 680, 687(10). The absence of an instruction defining the standard of care applicable to Sandra and the limiting of plaintiffs’ instruction defining “ordinary care” to the defendants preclude conflict which provided the basis of error in Hosford v. Clark, supra, relied upon by appellants. In Dorlac v. Bueneman, Mo.App., 129 S.W.2d 108, also cited by appellants, there apparently was no contention advanced that failure of plaintiff to offer an instruction defining the standard of care for a minor precluded error in the instruction given which required the minor plaintiff to “exercise ordinary care.”

The plaintiffs’ next claim of error relates to Instruction No. 12, offered by the defendants and given by the court. That instruction reads as follows:

“The Court instructs the jury that no person is held by the law to a higher degree of care than is exercised by other careful and prudent operators in the trade or business which said person is engaged and that a person in conducting his business in the way that other careful and prudent operators in a like business do, has measured up to the standard required by the law.
“Therefore, you are instructed that if you find from the evidence that the defendants as operators of Tumblin Town maintained, operated and supervised said trampoline center and equipment the same as such trampoline centers and equipment were usually and customarily maintained, operated and supervised by other careful and prudent operators in said business, as shown by the evidence, then and in such event the defendants cannot be guilty of negligence or failure to exercise ordinary care within the meaning of these instructions, and if such is your finding, then plaintiffs are not entitled to recover, and your verdict must be favor of the defendants.”

Although the plaintiffs’ principal contention with respect to this instruction relates to the sufficiency of the evidence to warrant its being given, the plaintiffs also attack the correctness of such an instruction as a proposition of law, because it malees the conduct of other prudent operators in the same business the legal standard of care for the defendants.

The proper test of the defendants’ conduct as negligence was whether or not they exercised the care which a reasonable person would exercise under like circumstances. Restatement of Torts, Section 283, page 741.

"Whether or not a person’s conduct in the operation of a business enterprise conforms to such standard may, in some instances, be evidenced by his conforming or failing to conform to the established practices and customs of the business in which he is engaged. Olds v. St. Louis National Baseball Club, Mo.App., 119 S.W.2d 1000, 1005. However, such evidence may not be employed to fix the standard of conduct required by law. As stated in Gatzke v. Terminal Railroad Association of St. Louis, Mo.Sup., 321 S.W.2d 462, 466 (2-4), cited by defendants:

“It is said that usual practices, usage or customs may, in a given case, be shown as evidence of due care, although they are not the standards of due care, neither do they conclusively demonstrate due care. Specifically, it may be said that the exercise of due care requires precautions which a reasonably prudent employer would have taken in given circumstances, even though other employers may not have taken such commensurate precautions. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. Grosvener v. New York Cent. R. Co., 343 Mo. 611, 123 S.W.2d 173; Cleghorn v. Terminal R. Ass’n of St. Louis, Mo.Sup., 289 S.W.2d 13; Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905. But, as stated, usual practices, usage or customs may, in given cases, be shown as evidence of due care.”

Instruction No. 12 made the construction and operation of other trampoline centers the standard of care for the defendants’ construction and operation of “Tum-blin Town.” In so doing, it went beyond the proper purpose of evidence in such regard and was erroneous. 2 Wigmore on Evidence (3rd ed.), Section 461, page 489. Se Maynard v. Buck, 100 Mass. 40, 47-48, cited by Wigmore.

In support of this instruction, the defendants cite Murphy v. Electric Park Amusement Co., 209 Mo.App. 638, 241 S.W. 651, which disapproved an instruction along these lines because it omitted the words “careful and prudent” with reference to other operators and inferred that had such language been included the instruction would have been good. Such a requirement is actually superfluous. See comment in annotation in 137 A.L.R. 611, 614. That was demonstrated in the present case. There was nothing to show that the other operators with whom defendants compared their operation were “careful and prudent” operators and it would not have been possible to make that a subject of inquiry on the trial. The defendants acknowledge that they would not have been permitted so to characterize such operations. Disbrow v. People’s Ice, Storage & Fuel Co., 170 Mo.App. 585, 157 S.W. 116, 117. Consequently, the standard which, under the evidence, the instruction would provide, is, in the final analysis, the conduct of other operators. “(T)he legal standard of care, that is, the care of an ordinarily prudent man, is an ideal established by the law, without reference to actual usage which may or may not conform to the standard.” Note, 137 A.L.R. 615.

We further note that the other cases cited by defendants, Fairfield v. Bichler, 195 Mo.App. 45, 190 S.W. 32, 34, and Schaum v. Southwestern Bell Telephone Co., 336 Mo. 228, 78 S.W.2d 439, 442, were master and servant cases. As pointed out in Zesch v. Abrasive Company of Philadelphia, 353 Mo. 558, 183 S.W.2d 140, 144, 156 A.L.R. 469, “Usage is of more import in determining the gauge of care of a master than of persons in some other relations ■ — this may be due in some measure to the rule of the law of master and servant that the servant assumes the ordinary risks of his work.”

The plaintiffs’ final assignment of error relates to the giving of defendants’ Instruction No. 10 on assumption of risk. The objection briefed which was raised in their motion for new trial was that such instruction should not have been given because of the evidence of defendants’ negligence. We believe that the decision in Terry v. Boss Hotels, Inc., Mo.Sup., 376 S.W.2d 239, answers the objection here presented. However, we again call attention to the caveat in Terry that an instruction on assumption of risk is properly given in only an exceptional case. In view of the only objection here properly before us, we will not endeavor to pass upon whether or not this is such case.

For error in giving Instruction No. 12, the judgment is reversed and the case remanded.

COIL and HOUSER, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur except HENLEY, J., not sitting.


source: Caselaw Access Project

author: EAGER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent. v. Elvin Wayne ADAMS, Appellant.
    No. 50379.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Rehearing Denied July 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, and James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    L. L. Bornschein and Charles M. Shaw, Clayton, for appellant.
   EAGER, Judge.

Defendant was convicted of rape and, after a finding by the Court of prior felony convictions, he was sentenced to life imprisonment. His motion for a new trial had previously been overruled. Defendant was represented at the trial by able appointed counsel; no brief has been filed here, so we examine the merits of all sufficient assignments of error contained in his motion for a new trial, and also those parts of the record required by Rule 28.02, V.A.M.R. Such has long been our universal practice.

The record is lengthy, but we shall need to recite such facts as are necessary for a determination of the sufficiency of the evidence, since that point is made. Shirley Hartupee, her husband Tom, and their three-year-old daughter had been living for about a month in Unit No. 7 of the Twin Oaks Tourist Court, at 1226 South Kirk-wood Road, in the City of Kirkwood. Shirley worked at the Katz store in Kirkw'ood but had not been working on the day involved here, February 22, 1963. The husband worked at a service station from midnight to 8:00 a. m. Each of them was 20 years old; at the time involved here their child was at her grandmother’s. On that day Shirley (whom, for convenience, we designate as such) engaged in more or less ordinary activities during the day and early evening and at approximately 11:00 p. m. she was at home ironing her husband’s uniform. He, the husband, had been sleeping since some time in the afternoon; Shirley awakened him so that he could get ready to go to work, but he had not yet gotten up. At about 11:15 a friend of Shirley’s, Greta Jean Buchanan, who, with her husband, also lived at the Twin Oaks, came in; she was employed at Katz and had just left work at 11:00 o’clock. Apparently neither the inner door nor the glass storm door was locked. When Greta entered, she apparently closed the storm door but left the inner door open or partially so.

The unit consisted of one medium sized room, a kitchen or kitchenette adjoining it with merely an opening between, and a bathroom separated by a door. In the main room there was a double bed, a dresser or chest of drawers, one or more chairs, a bench, and perhaps other furniture. There was a built-in wash basin in this room with a light bulb over it; there was another light in the bathroom. Both were apparently turned on and off by means of short chains. There was only one outer door to the unit; the motel or tourist court consisted of several separate buildings and there was only one other unit in this particular building.

Greta testified: that she had just come in and talked a few minutes (with Mr. Hartupee still in bed) when “a colored man came in the door. And he had a gun in his hand and he said, ‘Don’t move, turn around, or I’ll kill you.’ ” What we now relate is a composite digest of the testimony of the three persons, Shirley, her husband and Greta. The man pushed Shirley over by the dresser, Tom raised up, and the man told him to “lay down and cover up his head”; the man then turned off the bedroom light, pointing the gun at Shirley, holding it at one time so that it touched her ear. At that point a second man, also a negro, came in the door. We interject here to say that this second man was positively identified as the defendant Adams. The first man to enter was later identified as one Frank Spears. Adams told the first man to hold the gun on the man in the bed, which he did; Adams then pushed the two girls into the kitchen, holding them by their necks, and demanded their jewelry and money; they gave him two rings, one a wedding ring and one a class ring; Shirley told him there was money in a billfold on the chest of drawers. This man then took the two girls back into the bedroom, and pushed them down so that their knees were on the floor and their heads were in the seat of a chair, while he looked for the money; in this process things were thrown around and generally disarranged; after a short time this man (Adams) “jerked” Shirley up off the floor and had her look for the billfold, keeping his hand on the back of her neck. During much of this time she had been telling the man to take the money and get out. When she did not find the billfold, he, Adams, pushed her “back down on the chair.” Soon thereafter Adams began taking liberties with Shirley, feeling under her sweater while holding one hand on her neck, and telling her to take her clothes off. This she refused, crying and pushing at him and telling him to leave her alone; he succeeded in pulling all her clothes down from the waist (“slim jims,” a pantie girdle and a sanitary belt), pushed her across the bed, jerked her up, and then pushed her ■down on the floor on her back, telling her repeatedly that “they would kill us if I didn’t be quiet.” In this situation he pro■ceeded to have sexual intercourse with her, as definitely established by her testimony. During this time she, in her own words, “kept pushing at him and turning and trying to get up from under him, and crying .and telling him to leave me alone”; she further testified that while on the floor she tried to push defendant off of her with her band and with her leg. She was permitted to testify, on being recalled, that she “was ■scared to death.” We have omitted some ■of the sordid details of the evidence, as unnecessary to the proof of rape. In the meantime, the other man Spears, had taken ■Greta into the kitchen where she was kept for substantially the same length of time .as was consumed by the foregoing acts. The evidence, of course, did not detail what ■occurred there except that Greta was permitted to testify, without any objection, that Spears hit her on the head three or four times with the gun which he still had, and that he tried to take her clothes off; she also testified that she heard Shirley crying and begging Adams to stop, take the money and leave.

After these acts the men came back together, pushed the women into the bathroom and locked the door, after telling them that if they called the police or tried to follow, they would come back and kill them. During all of this time the bathroom light was burning. The police were called promptly and both girls were taken to the St. Louis County Hospital.

We add here certain parts of the evidence concerning Tom Hartupee, the husband. For a time he was guarded by Spears with the gun, after the latter had fully or partly covered up his head. Tom testified that Spears said if he moved he would “blow my head off,” and that he was hit on the head several times with a hard object when he tried to get up. Shirley testified that Tom kept trying to get up, that they kept hitting him and that even from the floor the defendant Adams “kept reaching up and hitting him.” At any rate, Tom never succeeded in getting out of bed.

Shirley and her husband, with Greta and certain relatives, were taken to a “line-up” at the Sheriff’s Office on the evening of February 23, 1963. There they viewed six negro men and heard all of them speak. Adams was identified by Shirley, both by appearance and voice, and by her husband from his voice. Actually, the matter of identification has become a minor consideration in view of the defendant’s own testimony. Spears was also identified there. All persons concerned were then taken to the County Police Headquarters where, according to the State’s evidence, Adams admitted in the presence of these various people that he had raped Shirley. Following that, he was questioned at some length by two detectives of the County Police force; according to these witnesses, he gave a full oral statement which was related in detail in the evidence. For our purposes, it is sufficient to state that it corroborated generally the essential testimony of Shirley and Greta, so far as the present charge is concerned. In this statement defendant stated : that Spears took a clock radio when he left, and also had the girls’ rings; that they drove away (as they came) in Adams’ car, and when Spears got out to get some sandwiches he left the gun, radio and rings in the car; that Adams then drove away and took them to the home of a cousin of his on New York Street in Kirkwood. After taking the oral statement and on the same evening, the police recovered the gun and radio from that address, taking Adams with them. The people there denied getting the rings. The defendant was then taken to the unit in question of the Twin Oaks Motel where he was instructed to point out the different locations and objects involved, inside and outside the cabin, and photographs were taken; these were later used as exhibits at the trial.

Shortly after midnight, which would be on the very early morning of February 24, 1963, a written confession was taken. This was later introduced in evidence. It followed generally the oral statements and it also recited that defendant understood that he did not have to make a statement. It' was signed by defendant, and the corrections of all typographical errors were in-itialled by him. In this confession defendant confirmed the material elements of the charge of rape in considerable detail; he denied that he and Spears took any money. The confession recited that no threats or promises had been made to defendant to induce the making of the statement.

The State showed by evidence from hospital employees the presence of male sperm in smears taken from the vagina of the victim when she was examined almost immediately after the occurrences. She testified that, since she was in her menstruation period, she had not had intercourse with her husband for five or six days prior to the date here in question. The gun, a “break-open” type .38 caliber revolver, was identified by the witnesses at the trial as one which looked like the one carried and used by Spears. In view of the manner of its recovery and the testimony of defendant, no question as to its identity really remained. The radio was definitely identified. A wallet was produced and identified as the one which had been lying on the dresser and which contained $230-$240. The evidence as to that item is somewhat incomplete, but that is immaterial since the charge here is not'robbery or stealing. One officer testified that he found the wallet under the bed in the cabin when pictures were being taken the next night, but it is not shown whether it then contained the money or not.

The defendant testified in considerable detail. His defenses were a denial of the rape, and a contention that he had been beaten and threatened into making both the written confession and the oral admissions. He testified that Officer Patty, alone, took him into a room in handcuffs on two different occasions on the day of his arrest, knocked him down, “kneed” him, and beat on him, telling him he would kill him if he didn’t say that “he did it”; also, that he was threatened again on the way from the “line-up” to police headquarters and told that if he did not “admit it to those people,” they would kill him. Substantially all of this alleged abuse was charged by defendant to Officer Jack Patty, a county detective. This officer specifically denied that he beat, struck or threatened the defendant; Officer Herren, who was assigned to duty with Patty, and who was with him during the period in question, denied that he had struck or threatened defendant and testified that he knew that no one else did because he was with the others at the times involved, and specifically that he was with Patty “at all times.” The Court first heard evidence very fully outside the presence of the jury and determined that the confessions and oral statements were admissible.

The substance of the rest of defendant’s testimony was: that he had known Spears for about six years and had taken the gun in question from Spears as a “pawn” for a loan; that he gave the gun back to Spears on the evening in question, February 22, 1963; that Spears thereafter asked Adams to drive him to this particular motel, saying that the people there owed him some money; that he drove to this particular cabin (Hartupee’s), supposedly at Spears’ direction, and waited in the car for 5-7 minutes after Spears went in; thav he then got out and knocked on the door, someone said “come in” and he entered; that Spears had the gun in his hand and had the two girls (Shirley and Greta) over by the kitchen; that Shirley ran over and grabbed him, saying that she would do anything for him if he would make the other man get out and let Greta alone; that he pushed her away and said that “there was nothing that I wanted from her”; that he asked Spears what he was doing and he “said he was trying to make her tell where the money was”; that he saw someone lying in the bed, covered up; that he told Spears to get out, that he (Adams) left, and that Spears came out to the car a few minutes later; that he did not threaten anyone, did not remove any of Shirley’s clothing, and did not have intercourse with her or perform the other acts related in the testimony; that when Spears came out he brought the radio, saying that it was his; that when Spears got out to get some sandwiches later, he drove away and took the radio and the gun to the home of his (Adams’) cousin on New York Street, telling her that they belonged to Spears.

It is thus seen that defendant admitted in Court being in the home of the Hartu-pees on the evening in question, with Spears, at a time when both Shirley and her friend Greta were there. His rather weird story as to what happened was for the jury. The State put on evidence, outside the presence of the jury, of four prior burglary convictions of the defendant from March 2, 1954, to March 28, 1958; from the first conviction he was on parole until the time of the second conviction, after which he served in the penitentiary until discharged on January 7, 1956; on the last two convictions he received concurrent three-year sentences, being discharged on October 14, 1959. All four judgments of conviction were entered upon pleas of guilty.

Defendant attacks the sufficiency of the evidence first, in that the evidence “failed to establish that the prosecutrix offered resistance to her utmost,” and secondly, by a general assignment of error addressed to the overruling of his motions for acquittal. It is entirely obvious that, so far as the general assignment is concerned, the evidence of the State was sufficient to show the essentials of the crime of rape, i. e., carnal knowledge of the victim by force, and against her will. State v. Terry, Mo., 325 S.W.2d 1; § 559.260, RSMo 1959, V.A.M.S.; State v. Egner, 317 Mo. 457, 296 S.W. 145; State v. Moore, Mo., 353 S.W.2d 712. There are cases which indicate that the victim should offer the utmost resistance available to her under the circumstances. Where there is substantial evidence of resistance that question is for the jury under proper instructions. State v. Bird, 358 Mo. 284, 214 S.W.2d 38, 39, and cases cited. There was resistance here, and very substantial resistance. And it has frequently been held that violence and threats of violence may supply or serve in lieu of the requirement of resistance. State v. Wynn, Mo., 357 S.W.2d 936, 939; State v. Beck, Mo., 368 S.W.2d 490; State v. Schuster, Mo., 282 S.W.2d 553, 556; State v. Catron, 317 Mo. 894, 296 S.W. 141, 143. Here, not only did the defendant offer personal violence and threats to his victim, but his associate Spears had threatened all concerned with his gun and had emphasized his threats by beating Greta on the head with it. On the State’s evidence, this was all one associated chain of events, from which defendant may not separate himself. There was abundant evidence for the submission.

It is claimed that the Court erred in permitting Shirley Hartupee to be recalled after she had left the stand, to testify that she was “scared to death.” The Court certainly had the right in its discretion to permit the recall, and no reason is stated in the assignment why the admission of the testimony was erroneous, except for the bare statement that in permitting the testimony the Court reversed a prior ruling. Not only is that statement insufficient, but the state of mind of the victim was a relevant matter. At the trial the question was objected to as calling for a conclusion. This was properly overruled.

Error has been assigned to the admission of the written confession, the oral statements and admissions, and the photographs taken of defendant at the scene; this, on the ground that they were all obtained by threats and physical violence. The evidence for and against this contention was heard very fully, outside the presence of the jury, and in its presence. The Court ruled, as it had the right to do, that there was substantial evidence to sustain the State’s burden to show that the confessions and admissions were voluntary and that they were admissible in evidence. On this controverted evidence, we agree. See: State v. Lee, 361 Mo. 163, 233 S.W.2d 666; State v. Weidlich, Mo., 269 S.W.2d 69, and cases cited; State v. McBrayer, Mo., 269 S.W.2d 756. On a question of fact such as this, the defendant may not insist that his testimony be accepted and the State’s evidence rejected. The assignment is denied.

Defendant also assigns as error the fact that the written confession “contained evidence of other offenses.” Upon the admission of the confession, the Court excluded a preliminary paragraph in which it was stated that the statement was taken "in connection with the Rape, Robbery and Assault that was committed at * * Counsel also objected because the body of the statement contained similar references. We find four places near the beginning of the rather lengthy confession in which reference is made to “rape, robbery and assault” at the time and place here in question, as for instance, “Do you have any knowledge of this crime of rape, robbery and assault * * * ” ? Presumably, the officers questioning defendant were merely attempting to cover the various possible angles of the situation. We feel that it might have been preferable to have eliminated those references, but where defendant was charged with, and the State’s evidence clearly showed, an aggravated crime of rape, there could have been no substantial prejudice from the mere mention of possible charges of robbery and assault against someone. The remainder of defendant’s own written statement convicted him of assault. All the circumstances concerning any possible stealing or robbery were already before the jury from the oral testimony, and certainly the form of this confession added little or nothing in that respect. Furthermore, evidence of or references to interrelated crimes committed as part of one continuous transaction and pursuant to a common design, are admissible. See the cases cited in the next paragraph of this opinion.

Assignment of error is made on the admission in evidence of the pistol, the radio and the wallet, on the ground that defendant was not shown to have had any sufficient connection with them or any of them. First, as to the gun: If the defendant elects to travel with a person who threatens and beats people with a gun (as here shown by the State’s evidence) while the defendant himself commits an atrocious crime, at least partially under the protection and threat of the gun, then, of course, the gun becomes admissible against him as a part of the total chain of events. There can be no possible question here of the identity of the gun, for defendant himself took the officers to it. Where two or more persons engage in a common crime or crimes, proof of all relevant facts is generally proper. In State v. Parr, 296 Mo. 406, 246 S.W. 903, at loc. cit. 905, where two different persons had been charged, the Court said: “Where, as here, two crimes are committed under such circumstances as to constitute one continuous transaction in the accomplishment of a common design, and the facts are so interrelated that the crimes are concurrent, proof of one cannot be made without a showing of the facts tending to establish the other. In short, the entire otherwise relevant facts may be regarded as part of the res gestae. State v. Sykes, 191 Mo. 62, 89 S.W. 851; State v. Katz, 266 Mo. loc. cit. 503, 181 S.W. 425. Without their admission, a connected and intelligible statement of the transaction could not well be made nor a clear understanding had of the same.” And see: State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763, 765; State v. Lewkowitz, 265 Mo. 613, 178 S.W. 58, 64; State v. Allen, Mo., 246 S.W. 946, 947; State v. Bell, 359 Mo. 785, 223 S.W.2d 469, 471; State v. Johnson, Mo., 347 S.W.2d 220, 222. All of the substantially simultaneous acts become part of the res gestae. The gun was properly admissible in evidence here. On the same principle, the clock radio was admissible. It was stolen at the time of the other occurrences and defendant admitted taking it to his cousin’s house, from whence it was recovered. As to the wallet, the State’s evidence showed that it was found by an officer on the next night, under the bed, where it had obviously been thrown by someone. The State’s case was replete with evidence that defendant himself spent considerable time in searching for the wallet and for money; the women had been robbed of their rings. Under these circumstances, the wallet was admissible as a part of the chain of circumstances, even though the evidence as to the status of its contents, when found, was incomplete.

It is claimed that the information was defective in that it did not allege that the prior convictions were “final judgments,” and that therefore evidence of prior convictions was improperly admitted. Our statute, § 556.280, Laws 1959, does not require any such allegation. By its last subsection it is provided that if a prior conviction has been appealed the section shall not apply until the appeal has been disposed of. While the State should not, of course, allege or show any prior conviction or convictions from which it knows an appeal or appeals are pending, we hold that this statute does not put an initial burden upon the State to allege and prove that there has been no appeal. If such a situation exists, the defendant will know that fact and may raise the question affirmatively. The evidence of prior convictions is now taken outside the presence of the jury, and defendant is always represented by counsel. Moreover, in this case the question is moot, because all of the prior judgments of conviction were entered upon pleas of guilty, which would certainly preclude any appeal in the ordinary sense.

The State called a newspaper reporter, Jacob Wolf, in rebuttal; he testified that about noon on February 23, 1963, he saw defendant in his cell beating his head against the steel wall and beating his mouth against the bars of his cell door. It is claimed that this was improper rebuttal. In view of defendant’s testimony as to the beatings which he had supposedly received from Officer Patty, this evidence was clearly admissible in rebuttal, even though defendant had himself testified that he was “hysterical” and hit his head against the wall 2, 3 or 4 times. The testimony of the reporter differed from that evidence and was, to that extent, contradictory.

Defendant’s assignment that Instructions 1, 2, 3, 4 and 5 were not “proper declarations of the law” is wholly insufficient, since it gives no reasons whatever. State v. Brewer, Mo., 325 S.W.2d 16. A separate assignment to Instruction 5 states that it tells the jury in effect that if the confession was found to be voluntary “it must be accepted as true, even though at the trial defendant denied it * * That instruction was as follows:

“The Court instructs the Jury that any oral or written statement made by any defendant, even though it should contain matters that tend to prove his guilt, is admissible in evidence against the defendant and is to be given such probative value as evidence as you believe it deserves, if you find it was voluntarily given.

“And in this regard, the Court instructs you that by the term ‘voluntarily’ the Court means not secured by duress, that is, by striking or beating the defendant or by threats of physical harm to him, or by promise of immunity to him by anyone competent to grant such immunity.

“However, the Court instructs you that to make a statement or confession voluntary in nature, it is not necessary to show that such statement or confession was spontaneous, that is, made without either persuasion or questioning.”

The first paragraph of the instruction very plainly tells the jury that if the confession was found to be voluntary, it should be given “such probative value as evidence as you believe it deserves.” The instruction is not subject to any such construction as is now sought, and the contention is wholly without merit. A substantially identical instruction was given in State v. McCloud, Mo., 328 S.W.2d 586, and sustained against other objections.

Complaint is also made of the failure of the Court to instruct the jury “on the lesser offenses of Assault with Intent to Ravish, and, Common Assault.” Here a consummated, forcible rape was abundantly proved, and any instruction on a lesser crime was not only unnecessary but would have been improper. State v. Chandler, Mo., 314 S.W.2d 897; State v. Bird, 358 Mo. 284, 214 S.W.2d 38; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Ball, Mo, 133 S.W.2d 414.

The assignment that the verdict is against the evidence and the weight thereof is insufficient for any purpose. State v. Terry, Mo., 325 S.W.2d 1; State v. Daegele, Mo., 302 S.W.2d 20. The remaining assignment is that the Court erred in overruling a request for a mistrial when Officer Patty testified “that upon his arrest of the defendant, he denied the charge and refused to make any further statement, but some time later admitted the charge and gave the officer both an oral and signed written confession.” When Patty testified that Adams, upon his arrest, denied that he was involved, no objection whatever was made. When he testified that after the “lineup” Adams stated that he “did participate,” counsel asked for a mistrial because defendant had first “denied it” and “now .the officer says” he made a statement admitting it. So far as we can see, neither the motion at the trial nor the present assignment advances any reason for a mistrial or for convicting the Court of error. From the colloquy we gather that counsel was relying upon a supposed “silence” and refusal to make a statement when arrested, which he thought should not be “admissible evidence,” plus the fact that he was “later subjected to make a statement.” In these proceedings there was no comment upon a refusal to make a statement, for there was no refusal, nor was there “silence”; the defendant simply denied that he was involved. Later he made statements, oral and written, under controverted circumstances. This sequence of events furnished no ground for a mistrial nor is any reason therefor stated.

Nothing appears in the record to indicate that defendant did not have a fair trial; he was ably represented by counsel; the jury was fully instructed and found him guilty. The penalty assessed by the Court was within the limits permitted by statute.

We find no error in those parts of the record which we examine under Rule 28.02. The judgment is affirmed.

All of the Judges concur.


author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. Walter KING, Appellant.
    No. 50142.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent,
    Walter King, appellant, pro se.
   DALTON, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis overruling appellant’s motion under Supreme Court Rule 27.26, V.A.M.R. to set aside a prior conviction of appellant under the Habitual Criminal Act for the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. The conviction in question and the sentence of life imprisonment were entered on May 13, 1959. Without a hearing of evidence on the motion the trial court, on April 16, 1963, summarily overruled appellant’s motion to vacate and set aside the prior conviction. Defendant filed a notice of appeal and was permitted to appeal as a poor person and a free transcript has been provided, but defendant’s motion to assign counsel for the purposes of this appeal was denied.

Supreme Court Rule 27.26, in part, provides that: “A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, * * * or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” (Italics ours.)

A motion filed under this rule to vacate a judgment of conviction is not a step in a criminal proceeding against the defendant, but is, like habeas corpus, a means of testing the validity of his detention after conviction. Under this proceeding a collateral inquiry may be made as to the validity of the judgment under which defendant is held. The proceeding is governed by Court rules applicable to civil proceedings. State v. Warren, Mo.Sup., 344 S.W.2d 88, 90 [2]; State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135; State v. Johnstone, Mo.Sup., 350 S.W.2d 774, 777 [3-6], certiorari denied, 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280. If the motion presents no material issues of fact, or if the issues presented may be determined by the record and files in the original case, the Court may summarily rule the motion, since the Court may take judicial notice of its own records and the prior proceedings in the case. Also, if only issues of law are presented the Court may summarily rule the motion. If material issues of fact not previously ruled are presented, a hearing must be had and the Court must “make findings of fact and conclusions of law with respect thereto.” State v. Pickle and Profit, Mo.Sup., 376 S.W.2d 181 and State v. Herron, Mo.Sup., 376 S.W.2d 192. As stated, the circuit court summarily overruled defendant’s motion and defendant appealed.

The records show that the original case was instituted in the Circuit Court of the City of St. Louis by the filing of an indictment returned by a grand jury on February 12, 1959. The indictment charged defendant with the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. The charge was under the Habitual Criminal Act and four prior felony convictions were alleged. However, the cause was tried on a substitute information in lieu of the indictment. One of the four prior felony convictions alleged was for the offense of “Armed Robbery” in the State of Michigan. While the indictment alleged that defendant was convicted of the said offense and was sentenced to imprisonment in the State Prison of Southern Michigan for a term of seven years and six months to fifteen years, and that he was discharged on July 7, 1952, after and upon lawful compliance with said sentence, there was no allegation in the indictment to the effect that the offense of “Armed Robbery” in the State of Michigan was an offense which, if committed in the State of Missouri, would have been punishable under the laws of this State by imprisonment in the penitentiary. See Sec. 556.290 RSMo 1959. The substituted information remedied this defect.

The records further show that the original cause was tried, beginning on May 11, 1959, which date was prior to the effective date of the amendment of the Habitual Criminal Act by Laws of Missouri, 1959, Senate Bill No. 117, approved June 15, 1959. The issue as to whether the defendant had been previously convicted of a prior felony was therefore submitted to the jury and the jury by its verdict found defendant guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, as charged, and further found that defendant had been previously convicted of a felony and the jury assessed the defendant’s punishment at imprisonment in the state penitentiary for the remainder of his natural life.

Defendant was represented during the trial by court-appointed counsel and, after verdict, a motion for a new trial was duly filed and by the Court was considered and overruled. Notice of appeal was filed and a free transcript was provided.

On appeal to this Court all matters properly raised in the motion for a new trial were duly considered, as well as that part of the record which the Court considers independently of the motion for a new trial. The judgment of the trial court was affirmed in an opinion filed. See State v. King, Mo.Sup., 334 S.W.2d 34. A motion for rehearing was subsequently filed and denied by the Court on April 11, 1960.

Appellant’s first point on the present appeal is that “the trial court was without authority or jurisdiction to proceed to a judgment of conviction and sentence, for the reason that said court proceeded upon a Prosecuting Attorney’s information which was substituted for an indictment after the jury had been sworn.” Appellant states that such substitution was made without leave of the Court; that the indictment had not been held insufficient or defective in any particular whatever; and that substitution was not authorized under Sec. S4S.300 RSMo 1949. Appellant further states that the indictment was void ab initio, but he states no facts to support that conclusion. In a subdivision under appellant’s first point he further states that Supreme Court Rule 24.02, which purports to give the State authority to substitute an information for an indictment without the indictment being shown to be insufficient, allows the State to evade the provisions of Sec. 545.300, supra, and the rule is, therefore, unconstitutional and void in that it violates Art. V, Sec. 5 of the Constitution of Missouri 1945, V.A.M.S. by depriving defendant of his substantive right to prevent such a substitution after the jury was sworn. He further insists that Supreme Court Rule 24.02 nullifies prior Supreme Court decisions cited in his brief and that Art. V, Sec. 5, under which Rule 24.02 was adopted, denies due process and equal protection of the law guaranteed to defendant by other sections of the State Constitution and the Fourteenth Amendment to the Constitution of the United States. He also insists that Art. V, Sec. 5 is an unlawful delegation of the Legislative power to the Supreme Court of Missouri and it is, therefore, an invasion upon the Legislative branch of the government in violation of Art. II, Sec. 1 of the Constitution of Missouri 1945. We are of the opinion that these several assignments present only issues of law and factual matters which are easily determinable upon a review of the files and records of the Court in the original case. Issues of law and matters which may be disposed of from a review of the files and records of the court in the original case may be summarily disposed of without a hearing. See State v. Jarrett, Mo.Sup., 317 S.W.2d 368, 369 [2]. And see cases decided under Title 28 U.S.C.A. § 2255, a Federal Rule similar to the substance of Rule 27.26, such as Keto v. United States, 8th Circuit, 189 F.2d 247, 251 [4] and O’Malley v. United States, 6th Circuit, 285 F.2d 733, 735.

The substituted information appears from the transcript in the original case and the charge made against defendant is the same as in the mentioned indictment, except that in the information the allegations with reference to the Michigan offense were modified as heretofore stated. The transcript on this appeal further shows that a Court record was made of the substitution of the information for the indictment and the transcript in the original case shows that the change was made by request of the State and with the consent of the Court. The amendment could not have been prejudicial to the defendant since the State was only required to prove one of the several prior felony convictions to bring the case within the Habitual Criminal Act. Three other prior felony convictions were properly alleged, but the Michigan conviction was insufficient in the respects stated. No prejudice appears to the defendant by reason of the substitution of the information for the indictment, because “the Michigan conviction was never referred to in the evidence or in the instructions” (State v. King, supra, 334 S.W.2d 34, 37), since the trial court outside the hearing of the jury sustained defendant’s objections to the admission of the documents by which the State sought to prove the Michigan conviction. Further, the allegation and proof of prior convictions would only affect the extent of punishment in the event of conviction.

As to the validity of Supreme Court Rule 24.02, the Constitution of Missouri 1945, Sec. 5, Art. V, expressly provides that the Supreme Court may establish rules of practice and procedure for all Courts, but that said “rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury or the right of appeal. * * * Any rule may be annulled or amended by a law limited to the purpose.” The rule in question, therefore, when adopted by this Court under the express authority of the Constitution, modified the statute upon which appellant relies, and the Legislature has taken no action to amend or annul the particular rule. And see Supreme Court Rules 41.04 and 36.01. The defendant, of course, had acquired no vested constitutional right by reason of the statute or any prior existing rule of practice and procedure. Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43; City of Kirkwood v. Allen, No. 49,920, handed down June 8, 1964. Rule 24.02, having been adopted under Constitutional authority, superseded the statute. We find no merit in any of the mentioned contentions, supra. No hearing of evidence was required as to any of them.

Appellant next contends that the verdict of the jury “was too vague and indefinite to constitute a finding prior [sic] of a prior felony conviction, sentence, imprisonment, and discharge” for the reason that the jury failed “to specifically state which of the several prior felonies alleged, the jury found he had been convicted of * *

Excluding the Michigan conviction, each of the three specific prior felony convictions alleged in the information and supported by evidence and undisputed at the trial were submitted to the jury in a conjunctive submission. These convictions were for offenses committed in the City of St. Louis. The instruction further submitted a finding on each of the matters mentioned in the statute, Sec. 556.280 RSMo 1949, to wit: conviction, sentence, imprisonment and discharged upon lawful compliance with said sentence. The instruction further submitted findings as to the date of each of the three prior convictions and the offenses of Burglary in the Second Degree and a conviction of Grand Larceny; that the sentences imposed for the three convictions ran concurrently; and that the said defendant had been duly discharged from the penitentiary after and upon full compliance with said sentences. Subject to said finding, the jury was then advised that, if defendant was found guilty of Robbery in the First Degree, as charged in the information, and as submitted in a prior instruction, and if it was further found beyond a reasonable doubt that the defendant had formerly been convicted of a felony or felonies that, “then you will assess the punishment of the defendant at imprisonment in the State Penitentiary for the remainder of his natural life.” The verdict of the jury was as follows:

“We the Jury in the above entitled cause, find the defendant guilty of Robbery in the first degree by means of a dangerous and deadly weapon, as charged. We further find the defendant has been formerly convicted of a felony and assess his 'punishment at imprisonment in the State Penitentiary for the remainder of his natural life.

/Signed/ William A. Bellrose, Foreman.”

When the cause reached this Court on appeal the verdict was examined as required by Supreme Court Rules 28.02 and 28.08 and the conclusion was reached, as stated, in the opinion: “We find no error in those parts of the record which we consider independently of the motion for a new trial.” State v. King, supra, 334 S.W.2d 34, 41.

The State insists that to review the sufficiency of the verdict at this time would be tantamount to permitting appellant a second appeal based on alleged trial errors which have previously been reviewed by this Court; and that this is not permissible under Supreme Court Rule 27.26, citing State v. Johnstone, supra, 350 S.W.2d 774, 777 [6], certiorari denied, 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280; and State v. Mallory, Mo.Sup., 349 S.W.2d 916, 917 [2, 3]. The prior opinion in this case does not indicate that the insufficiency of the verdict in the respects Mentioned was in question, hence we shall rule the issue presented.

On this record, this assignment presents no issue of fact, but only an issue of law, and from the files and records in this case we must and do find that the verdict was sufficient in form and substance to support the judgment entered in the case. See State v. Charles, Mo.Sup., 268 S.W.2d 830, 832 [1]; State v. Jonas, Mo.Sup., 260 S.W.2d 3, 6 [6-7]; State v. Hite, Mo.Sup., 298 S.W.2d 411, 413 [6-7], The assignment is overruled.

Appellant further contends that “he was prejudiced by the prosecuting attorney’s statements to the jury on voir dire and in the State’s opening statement concerning an alleged conviction for Armed Robbery in the State of Michigan [which] influenced the Jury’s judgment and verdict of guilty upon the principal issue of Robbery by Means of a Dangerous and Deadly Weapon.”

We may not consider this assignment since it seeks to present a trial error, a part of which was considered and ruled when the case was previously here on appeal. State v. King, supra, 334 S.W.2d 34, 37 [1], Further, it is now well settled that a motion under Supreme Court Rule 27.26 may not be used as a substitute for a motion for a new trial, nor function as an appeal, nor be used to permit a defendant to have a second appeal based upon alleged trial errors. State v. Mallory, supra, 349 S.W.2d 916, 917 [2, 3]; State v. Morton, Mo.Sup, 349 S.W.2d 914, 915 [2]; State v. Wiggins, Mo.Sup, 360 S.W.2d 716, 718 [1, 2]; State v. Turner, Mo.Sup, 353 S.W.2d 602, 603 [1]; State v. Thompson, Mo.Sup, 324 S.W.2d 133, 135, et seq.

Appellant further contends “that his court appointed counsel so mishandled the case that his errors arose to a denial of Due Process of Law in violation of the Fourteenth Amendment to the Constitution of the United States. And that court appointed counsel’s errors amounted to ineffective and inefficient assistance of counsel by reason of his non-action” in certain respects thereinafter set out. Some of the matters of which appellant complains are referred to in his motion for a new trial in the principal case and were ruled against him on the prior appeal to this Court. Concerning the other matters referred to, it is clear that appellant was quite as familiar with these complaints against his counsel at and before the filing of his motion for a new trial in the prior case as he was at the time of filing his present motion under Supreme Court Rule 27.26. If appellant desired to raise any of these issues he should have noted them in his motion for a new trial in that case, since in this proceeding we are not concerned with trial errors. See authorities cited, supra. In any event, the original charge against the appellant was tried before a highly competent circuit judge and the appellant was represented in the trial by a highly competent member of the Bar, who had been appointed to represent appellant.

The files and records in the prior case fully justify the statement in the opinion on the prior appeal, as follows: “After the trial defendant expressed a desire for the appointment of other counsel. His original counsel, appointed by the court prior to trial, had performed a highly efficient and commendable job in representing defendant. This case, and others afford a noteworthy commentary upon the total lack of appreciation which we so often see in such cases. Be that as it may, the court then appointed a member of the Public Defender’s Staff to interview the defendant and ‘prepare affidavit for defendant, if so requested.’ Defendant’s original counsel had prepared a draft of the motion for new trial, furnished it to defendant, suggested that if other grounds were desired they might be added, and that he would be glad to cooperate.” State v. King, supra, 334 S.W.2d 34, 40 [11].

It is clear from the allegations of appellant in his motion under Rule 27.26 against his court appointed counsel that these allegations are wholly insufficient to support a finding that the judgment and conviction was void, or that the facts stated constituted more than a collateral attack upon a valid judgment. The assignment is overruled.

Appellant further contends “that he was deprived of his right to a full and adequate appellate review on appeal from the final judgment of the trial court for the reason that he was not furnished a •copy of the final trial transcript with which to perfect his appeal, in accordance with Sec. 485.100 RSMo 1949 and the order of the trial court made pursuant to said statute directing the court reporter to furnish such a copy to defendant.” However, there is no contention that a copy of a •complete transcript on appeal was not furnished to and approved by his court appointed counsel. Nor is there any contention that any assignment of error in his motion for a new trial was not fully considered by this Court on appeal, or that .any assignment of error in said motion was •erroneously ruled by this Court. Every assignment in appellant’s motion for a new trial in the original cause was fully considered and determined by this Court •on said prior appeal and Supreme Court Rule 27.26 may not be used to obtain a second appeal based on alleged trial errors.

It further appears from the record in the original case that, after the verdict of ■guilty was returned in that case, the defendant became dissatisfied with counsel that the Court had appointed to represent him and he requested the Court to appoint another attorney to defend him. In his letter to the trial judge, he made no specific complaints in writing against the attorney appointed to represent him, but, being dissatisfied with the outcome of the trial, he wanted another attorney and the Court, as stated, appointed Joseph Noskay, Assistant Director of the Public Defenders Bureau, to interview defendant and assist him. Thereafter, the detailed motion for a new trial was prepared and filed by the joint efforts of both attorneys and the motion was accompanied by affidavits as to newly discovered evidence which was the only basis for a new trial that was stated in appellant’s letter to the trial judge. The record clearly shows that appellant was furnished a free transcript on appeal and all of the procedural safeguards were provided and appellant obtained a full review on appeal of all of the assignments of error in his motion for a new trial. Since it appears that appellant was furnished a full transcript on appeal, which was filed on his behalf and the appeal duly taken, he may not now contend to the contrary in his motion to vacate the judgment under Rule 27.26. The above assignment in his present motion to vacate the judgment under Rule 27.26 is overruled.

As a further ground for vacating the judgment of conviction, appellant claims that he was denied due process and equal protection of the law in that he was arrested at his home without a warrant; that he was taken to the Ninth Street Police Station and booked on suspicion of robbery; and that he was, thereafter, detained at said police station in excess of 20 hours before being taken before a magistrate, contrary to Sec. 544.170 RSMo 1949 and Missouri Supreme Court Rule 21.14.

No such issue of alleged illegal arrest or illegal detention was raised by appellant prior to the trial of the cause, nor is any such matter mentioned in the motion for a new trial. At no time was it presented to or considered by the trial court. Further, no such fact appears from the transcript on the original appeal of this cause on its merits. If such fact existed it is not now the basis for a collateral attack upon the judgment and conviction entered against him. State v. Bryant, Mo.Sup., 375 S.W.2d 122, 125 [6]; State v. Turner, Mo.Sup., 353 S.W.2d 602, 604 [5], And see United States v. Shields, 6 Cir., 291 F.2d 798, 799 [2-3].

Appellant’s motion to vacate further alleges that he was denied due process of law in that he was allowed to enter a plea of not guilty prior to the appointment of counsel to represent him, contrary to Supreme Court Rule 25.03 and Sec. 545.810 RSMo 1959. There is no merit in this contention since the transcript of the record filed in this Court on the appeal of the cause on its merits expressly shows that counsel for defendant was appointed by the trial court prior to his arraignment and the entrance of a plea of not guilty.

Further, it is clear from the cases cited by appellant that he is not familiar with criminal procedure in this State since he, for the most part, relies on cases and decisions not applicable under the criminal practice and procedure in this State.

After the filing of his motion under Rule 27.26 to vacate and set aside the mentioned judgment and sentence, the defendant filed a motion for change of Judge on the ground that the original trial judge, who had previously appointed two well-qualified attorneys to represent him, was prejudiced against him. The motion for change of Judge was duly sustained and the cause was transferred to another division of the circuit court, where the Judge of that division entered the following order in disposing of appellant’s motion:

“The Court doth find that defendant is a poor and indigent person within the meaning of the applicable law pertaining thereto; wherefore, the Court doth order and adjudge that the defendant be and is hereby permitted and allowed to prosecute his motion to vacate as a poor person. The Court has diligently read, examined and considered the motion filed herein, along with the alleged authorities therefor, the entire minutes of the proceedings, and the opinion filed by the Supreme Court of Missouri, and the Court now being sufficiently advised doth find that the motion, the files and all the records of the case show conclusively that the defendant is entitled to no relief; therefore, it is the order and judgment of this Court that defendant’s motion to vacate filed herein pursuant to Supreme Court Rule 27.26, be and the same is hereby denied and dismissed.

Filed April 16, 1963.

/s/ Theodore McMillian Presiding Judge, Division No. 1”

Thereafter, defendant filed notice of appeal and a free transcript was again provided and filed. This Court, having fully considered each and all of the above-mentioned assignments on this appeal, finds that no issue of fact is presented and that all issues may be disposed of as a matter of law upon the records and files in this case and, this having done and no error appearing, the judgment entered is affirmed.

All concur.


text:
    Cline BAILEY, Plaintiff-Appellant, v. The CANADIAN SHIELD GENERAL INSURANCE COMPANY, Defendant, and J. K. Seear, Ltd., Defendant-Respondent.
    No. 50339.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.

      Clarence Finley, Albert Thomson, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.
    William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondent J. K. Seear, Ltd.
   WELBORN, Commissioner.

This is an action by Cline Bailey against The Canadian Shield General Insurance Company and J. K. Seear, Ltd. (herein referred to as “Canadian Shield” and “Seear,” respectively). A certificate of insurance was issued in Canadian Shield throught the agency of Seear, covering a fleet of tractor-trailer units owned by Bailey. Canadian Shield refused to pay loss sustained on one of the units covered by the policy while it was in effect. Bailey brought this action against Canadian Shield on the policy and against Seear, charging that the latter had violated its duty to the plaintiff as an agent, by placing the insurance with Canadian Shield, an insurance company not qualified to do business in Missouri. On a trial in the circuit court, the verdict of the jury was in favor of the plaintiff and against both defendants and judgment was entered against both defendants in the amount of $18,370. Thereafter, the trial court set aside the jury verdict and judgment against Seear and entered judgment in favor of Seear. Plaintiff appealed from such judgment. We have jurisdiction because of the amount in dispute.

The basic question presented in this appeal is whether or not placing of insurance by an agent in Missouri in an unauthorized foreign insurance company gives rise to a civil cause of action against the agent placing such insurance whenever a loss is sustained which the insurer fails to pay. Canadian Shield was not, at the date of the certificate here, April 11, 1959, authorized to do business in Missouri. Seear, a Colorado corporation doing business in Kansas City, nevertheless, placed plaintiff’s insurance with such company. Canadian Shield was adjudged insolvent on February 7, 1961.

Although the petition charged that Seear, in placing the policy with Canadian Shield, “failed to exercise reasonable skill, care and diligence to procure insurance for its client, Cline Bailey, in violation of its fiduciary duty to its principal, Cline Bailey,” the evidence showed that Bailey dealt with another agent, whose relationship to Seear was not shown. In any event, plaintiff submitted his claim against Seear on the basis of liability under Section 375.300, RSMo 1959, V.A.M.S., which reads, in part, as follows:

“* * * Any person * * * who * * * shall act as agent * * * for any * * * corporation engaged in insurance business, before such * * * corporation shall have been duly authorized * * * shall be deemed ' guilty of a misdemeanor 5fC * * ff

The plaintiff’s verdict-directing instruction read as follows:

“If you find and believe from the evidence that the defendant, in the State of Missouri, sold to the plaintiff a policy of insurance on certain trucks written in the Canadian Shield Insurance Company, and that said insurance company was not authorized to do business in the State of Missouri, and if you further find that the defendant had not obtained authority from the Commissioner of Insurance to place said insurance in Canadian Shield Insurance Company, and if you further find that a truck and trailer covered by said policy of insurance was destroyed in June of 1959, while said policy was in effect, and that Canadian Shield Insurance Company became insolvent, and said loss, if any, was not paid by Canadian Shield Insurance Company, then your verdict must be in favor of the plaintiff and against the defendant.”

In asserting civil liability against the agent under Section 375.300, plaintiff acknowledges that the Kansas City Court of Appeals, in 1904, in the case of Jones v. Horn, 104 Mo.App. 705, 78 S.W. 638, held, contrary to the position of plaintiff in this case, that violation of the statute here relied upon did not give the insured any civil cause of action against the agent. Plaintiff’s position is that Jones v. Horn “is totally valueless under modern legal precepts.”

In Jones v. Horn, the Kansas City Court of Appeals held that the criminal offense defined by what is now Section 375.300 (then Section 7989, RSMo 1899) resulted in no-private cause of action. The criminal penalty prescribed by the statute was held to-be the exclusive remedy thereunder. The court said (1. c. 78 S.W. 640): “The statute-regulating insurance, like that in relation to banks, imposes a penalty upon the agent for a violation of its provisions, and not as-a reparation to the party injured.”

In our opinion, the Kansas City Court of Appeals correctly applied the statute in Jones v. Horn. We see no reason-for rejecting the construction of the statute followed in that case. We consider such construction wholly consistent with the recent decision in the case of Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, wherein the court en banc held that violation of Section 287.780, RSMo 1959, V.A.M.S., making discrimination against an employee for exercise of his rights under the-workmen’s compensation law a misdemean- or, does not create any right of civil action-in favor of a particular employee affected' by the violation.

In Christy, the court pointed out (295 S.W.2d 127) many instances in the statutes-of this state where the legislature had expressly provided a civil remedy to the person injured by a prohibited act, including-several instances where criminal punishment was also provided. The absence of provision for civil action in the statute involved in Christy was considered significant evidence of lack of legislative intention to-create a civil liability. The statute here relied upon is equally silent. In connection-with the problem of basing civil liability upon the criminal statute, a writer has. stated:

“* * * When a statute expressly creates a criminal liability, the court which reads a civil obligation into the-enactment is embarking upon a perilous-speculation * * *.
“* * * Verbally, the court justifies its action by ‘finding’ that the legislature intended to create a civil duty although it did not explicity state this intention. Such an intention is usually imputed to the legislature where the court decides that the statute was passed for the protection of a class of which the plaintiff is a member. The obvious difficulty with this theory, however, is that even conceding a legislative intention to protect this class it has not evidenced any intention of achieving this protection by the imposition of a civil liability, since the only remedy provided by the statute is a criminal or penal proceeding.” Lowndes, Civil Liability Created By Criminal Legislation, 16 Minn.Law Review 361, 363.

Furthermore, we have in this case long-continued legislative acquiescence in the construction placed upon the statute by the Kansas City Court of Appeals in Jones v. Horn. See State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 754(1). In our opinion, such acquiescence should not be ignored in considering the plaintiff’s position that Jones v. Horn incorrectly declared the law.

As for this particular statute, we note that in several states the legislature has explicitly made the agent writing a policy for an unqualified foreign corporation personally liable for the amount of loss sustained on all such contracts of insurance. See Code of Alabama, 1940, Title 28, Section 9. The constitutionality of such statute was upheld by the United States Supreme Court in Noble v. Mitchell, 164 U.S. 367, 17 S.Ct. 110, 41 L.Ed. 472. A similar West Virginia statute, West Virginia Code, 1961, Section 3472(43), was applied in Karvalsky v. Becker, 217 Ind. 524, 29 N.E.2d 560, 131 A.L.R. 1074. Other cases in which similar statutes were applied are found in Annotation, 131 A.L.R. 1088.

Plaintiff cites cases from other jurisdictions in which statutes imposing only criminal liability upon an agent for writing insurance in an unqualified foreign corporation were held also to give rise to civil liability on the part of the agent. Among such cases are Hartman & Daniels v. Hollowell, 126 Iowa 643, 102 N.W. 524; Latham Mercantile and Commercial Company v. Harrod, 71 Kan. 565, 81 P. 214; Harrod v. Latham Mercantile and Commercial Company, 77 Kan. 466, 95 P. 11; Price v. Garvin, Tex.Civ.App., 69 S.W. 985; Mallery v. Frye, 21 App.D.C. 105. We have examined these cases, together with the more recent decision of the Superior Court of New Jersey in Gerald v. Universal Agency, Inc., 56 N.J.Super. 362, 153 A.2d 359. We have also considered the principles set out in the Restatement of the Law of Torts, Section 286, page 752. We are not persuaded by these authorities to conclude that Jones v. Horn, supra, was incorrectly-decided, particularly in the light of the opinion of the court en banc in Christy v„ Petrus, supra. If the criminal penalty imposed by Section 375.300 is inadequate to-effect its purpose, the legislature may determine what further sanction is called for.

We are of the opinion that Section 375.300 does not afford a civil remedy to the plaintiff in this case and that the trial court therefore properly set aside the verdict against Seear and entered judgment in favor of such defendant Seear.

The judgment is affirmed.

HOUSER, C., concurs.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.

      . Following Christy v. Petrus, supra, the 72nd Missouri General Assembly approved SCSSB No. 339, which would have amended Section 287.780, expressly to give a right of civil action for its violation. However, the bill was vetoed by the governor and did not become law. Laws of Mo., 1963, page 702.