text:
    The STATE of Missouri at the relation of James S. MINING et al., Appellants, v. lius W. DAVIS, Mayor of Kansas City, Missouri, et al., Respondents.
    No. 51088.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Opinion Modified on Court’s Own Motion July 12, 1965.
    Rehearing Denied July 12, 1965.

      John J. Manning, Robert S. Fousek, Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, George DeBitetto, Asst. City Counselor, John J. Cosgrove, Assoc. City Counselor, Kansas City, for respondents.
   WELBORN, Commissioner.

This is another case involving the Kansas City Firemen’s Pension Fund. This action is one in mandamus to compel the City Council to appropriate to the Firemen’s Pension Fund the sum of $432,364.00, the amount claimed to be owed the Fund by reason of the City’s failure to increase its contributions in accordance with actuarial findings, for the fiscal periods May 1, 1955 to April 30, 1959. The relators are three employees of the Fire Department who allege that in excess of 50% of the employees of the Fire Department had authorized them to institute the suit in their behalf. The defendants are the Mayor and members of the City Council and the City of Kansas City. The petition, after stating generally the same matters recited in Tomlinson et al. v. Kansas City et al., Mo., 391 S.W.2d 850, alleged that the Board of Trustees of the Pension Fund had refused to take legal action to compel the payment of the sum claimed to be due the Fund. It also alleged that the City Counselor, as attorney for the trustees, is “faced with a conflict of interest and refuses to take legal action to enforce the ordinance and compel the city to make the appropriation.”

The defendants by their return to the petition contended that “Section 19.210 is not binding upon the Council of Kansas City; that the Council is not required to contribute to the Firemen’s Pension System a sum of money as recommended by the actuary” and that any attempt upon the part of the Council which enacted the ordinance to bind future councils to make a contribution as recommended by the actuary would be “an unlawful delegation of legislative power.” Defendants also alleged that the pension plan is a gratuity within the discretion of the Council to abolish in whole or in part, and that Section 19.290 imposed no legal obligation upon the Council to comply with its provisions. The return further alleged that, on May 26, 1961, the Council repealed Sections 19.210 and 19.290 as above set out and enacted two new sections reading as follows:

“Section 19.210. Same — Actuarial Investigation. Whenever directed by the Council of Kansas City, the Board of Trustees shall cause an actuarial investigation to be made of the financial condition of the pension fund and shall report to the Council the result of such investigation, together with their recommendations pertaining thereto.

“Section 19.290. Relative to City Contributions. If the contributions by the City and the members of the pension system to the firemen’s pension fund and the earnings from the accumulated reserve in such fund, combined, are not sufficient to pay the pensions of the pensioners as they become due, the board shall promptly advise the Council of such fact for such action as it may deem necessary.”

The defendants denied that increasing the City’s contribution from 10% to 14½% was necessary to keep the pension plan actuarially sound. The return further alleged that, since January 1, 1960, contributions by the City had been at the rate of 12.40% per month. The return also alleged that, on June 30, 1955, the total reserve in the Firemen’s Pension Fund was $243,672 and that, as of March 31, 1964, the reserve had increased to an amount in excess of $4,000,000 “after all pensions had been paid, thereby rendering said fund financially sound to pay all pensions as they accrue.”

Plaintiffs by their reply to the defendants’ return, denied that the reliance by the Council upon an actuarial determination would constitute an unlawful delegation of legislative power. They also stated that the repeal of Sections 19.210 and 19.290 and the enactment of new provisions are not material since they occurred subsequent to the filing of this action.

On these pleadings the plaintiffs moved for summary judgment and the defendants moved for judgment on the pleadings. The trial court overruled the plaintiffs’ motion for summary judgment and sustained defendants’ motion for judgment on the pleadings. Thereafter, the plaintiffs appealed to this court.

The burden was upon plaintiffs to show a clear and unequivocal right to relief in mandamus. State ex rel. Breshears v. Missouri State Employees’ Retirement System, Mo.Sup., 362 S.W.2d 571, 573(1-3). Our conclusion in Tomlinson, supra, regarding the nature of plaintiffs’ interests would preclude a showing of such right.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William Prell BRIZENDINE, Appellant.
    No. 50867.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 12, 1965.

      Norman H. Anderson Atty. Gen., Jefferson City, David G. Dempsey, Asst. Atty. Gen., Clayton, for respondent.
    Robert G. Duncan, Kenneth K. Simon, Simon & Pierce, and Michael D. Konomos, Kansas City, for appellant.
   PRITCHARD, Commissioner.

In this case of murder in the first degree, for which defendant’s punishment was set at life imprisonment by a jury, the sole issue is whether defendant was entitled to have the jury instructed upon a defense of insanity at the time of the commission of the crime.

On the evening of October 6, 1963, defendant, referred to as “Flapjack,” came into the Lafayette Hotel, at 1205 Troost in Kansas City, Missouri, spoke to the night clerk, Mary Anderson, and went upstairs. A few minutes later Mary heard a noise, and defendant came back down. Then Janice Clark came down and made a telephone call. Mary testified that defendant walked, did not run, and didn’t appear to be drunk. He lived in the hotel, and his father lived across the hall from where deceased lived. At about 8:30 p. m., deceased, G. D. Miller, in response to a knock, opened the door of Apartment 112 in the hotel, where he lived with Janice. Janice saw a gun and testified that defendant said, “Miller, are you my friend?” Miller said, “Yes,” and was shot. Defendant then ran downstairs, and Janice also ran downstairs and called the police. There was testimony from Janice that deceased and defendant had an argument a week before in which defendant threatened deceased with a shotgun. Shortly before the homicide, defendant and one Larry Erickson had a conversation or argument in “Sargent’s” Cafe about a girl. Defendant then had a gun in his hand pointed at Erickson, and was asking “Where Irene was.”

Later in the evening, defendant came running in without knocking at the abode of Claudia Cox and Clara Edmeston Powell and gave Clara a pistol. The bullet found in deceased’s body was testified by William J. Myers, Supervisor of Ballistics at the Police Department, to have been fired from the pistol. At the time defendant appeared at the home of Claudia and Clara he was “all excited.” He kept walking back and forth and was “awfully nervous,” and was hysterical. In a statement given by Claudia to the police, brought out on her cross-examination, she said that defendant told her he “killed G. D.” but didn’t know what happened, and that the gun went off accidentally and he didn’t mean to do it.

Prior to the trial, defendant by his then counsel filed a motion “that defendant be examined by persons competent to determine his mental capacity and ability to aid counsel in his defense.” The reasons given for the motion were that defendant had been unable to comprehend the questions asked him by counsel, and that defendant was unable to understand and comprehend that he was charged with first degree murder. It was stated in the motion that, in the opinion of movant, the defendant was so mentally ill that he was unable to aid in his own defense, or to understand the gravity of the proceedings against him. The prayer was that “in order to protect defendant in his Constitutional rights, proper psychiatrists, neurologists and/or competent physicians should examine this defendant and report to this Court their considered opinion regarding defendant’s mental ability to understand the proceedings against him and to aid counsel in his defense.”

An order was made sustaining the motion, and pursuant thereto the report of the examining psychiatrist, Dr. Waraich, Acting Superintendent of State Hospital No. 2 (Division of Mental Diseases) at St. Joseph, Missouri, was filed in the trial court and was read to the jury. The parts of the report pertinent to defendant’s claimed errors of the trial court in failing to instruct the jury on the defense of insanity and criminal irresponsibility are as follows: “The physical examination is essentially negative. The neurological studies reveal no focal signs except for minimal congenital cerebral palsy due to difficulty at the time of birth (not significant). All the laboratory studies, including X-ray of the chest, are within normal range. Psychometric studies give him an I.Q. of 74 (WAIS), which means that he is functioning within the borderline range of intellectuality. Psychiatric studies reveal a rather egocentric, suspicious, well-nourished, well-developed, white man who shows no disturbances of his thinking processes. There is no evidence of any mood variation. However, he shows acting-out behavior disorder with symptoms of alcoholism, drug addiction, eccentricities, querulousness and hypochondriasis. The main disturbance is in the area of his relations with others. Here we see disturbance in his activities such as capacity for work, for enjoyment, and for sex life. His object relations are shallow and weak. Therefore, he has no consideration for others. He lacks depth of feelings. Much of his acting-out and emotional outbursts are only an attempt to break through his insensitiveness. His judgment is defective. This individual shows no evidence of psychosis or insanity. However, it may be stated that under extreme stress and frustration he may develop psychotic behavior. Diagnosis: Personality pattern disturbance, schizoid personality. Recommendations: This patient is not psychotic or insane. There is no evidence of neurosis. He shows a mild degree of mental deficiency which is not disabling. He has adequate intellectual capacity to assist his counsel in the conduct of his legal defense. Therefore, we respectfully suggest that his case be handled through the ordinary channels of criminal law.”

Defendant’s points, three in number, all relate to the claimed defense of insanity or criminal irresponsibility: That the court erred, upon request, in failing to instruct the jury on said issue; that Instruction No. 1, given on behalf of the state over defendant’s objection, was erroneous in that it did not cover the defense of insanity or criminal irresponsibility; and that the court erred in refusing to give Instruction 9 offered by defendant on said issue because, as contended, there was evidence to support such an instruction.

On November 12, 1963, defendant was arraigned during which he was advised of his right to counsel. The court then offered to appoint counsel for defendant, but he waived the right of counsel and the court found that he was mentally able and sufficiently informed to decide his need for counsel. Defendant then personally entered his plea of not guilty to the charge of first degree murder. The before-mentioned pre-trial motion for mental examination was filed by defendant’s then counsel, Mr. Michael D. Konomos, on January 30, 1964.

On October 13, 1963, after the homicide but before the arraignment, new Chapter 552 of Criminal Procedure, entitled “Mentally Ill Persons in Criminal Cases,” became effective. The provisions of that legislation were not utilized in this case. As counsel for defendant here states, “It is apparent from the transcript that neither appellant, the State, nor the Court, was aware of, or at least proceeded under Chapter 552.”

Section 552.030 provides in part as follows:

“1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.
“2. Evidence of mental disease or defect excluding responsibility shall not be admissible at trial of the defendant unless the defendant at the time of entering his plea to the charge pleads not guilty by reason of mental disease or defect excluding responsibility, or unless within ten days after a plea of not guilty or at such later date as the court may for good cause permit, he files a written notice of his purpose to rely on such defense. * * *”

Defendant at no time made a plea of not guilty by reason of mental disease or defect excluding responsibility for the commission of the crime, thus following the procedure of Chapter 552. He contends his pre-trial motion for a mental examination was sufficient as written notice of his intention to rely upon that defense. We rule otherwise. The motion was only for an examination of defendant’s mental condition at the time the motion was made, and it concerned only his then mental ability to aid counsel in his defense.

The report of Dr. Waraich, above, came into evidence and was read to the jury without objection by the state. We need not now decide whether the requirements of § 552.030, subd. 2, supra, are mandatory upon defendant. If so, undoubtedly the state has waived them by failing to object to the admission of the report as claimed evidence of mental irresponsibility. There was also no objection to any testimony of defendant’s actions before, during or after the homicide, which, as claimed, are also evidence of mental irresponsibility.

It is not material here whether the procedure used was under the superseded “knowing right from wrong” test of insanity, or was under § 552.030, subd. 1, supra. Both require an instruction to be given if there is substantial evidence of insanity or mental irresponsibility. State v. Johnson, Mo., 267 S.W.2d 642, 644; § 552.-030, subd. 5. Our inquiry then is whether there existed substantial evidence of defendant’s insanity or mental irresponsibility at the time of the homicide. State v. Pinski, Mo., 163 S.W.2d 785. See also State v. Moore, Banc, Mo., 303 S.W.2d 60, 69 [11], where it was said, “While great latitude is allowed in the admission of evidence in a criminal case where a defense of insanity is interposed, the evidence nevertheless must be relevant and material to the issue of defendant’s mental condition at the time of the commission of the act charged, * ⅜ ⅜=_” (Emphasis added.)

Defendant’s conduct before, during and after the killing does not establish insanity which would be a defense under the law. No evidence was offered that would show that defendant had a mental disease as defined by law. The fact that defendant made threats against deceased prior to the homicide; that he pointed a gun at someone else in a cafe, asking “Where Irene was”; his statement to deceased before he shot him; and his actions after the homicide, including nervousness and hysteria, do not establish such mental disease or defect. No witnesses testified in connection with their observations before, at, or after the commission of the homicide that defendant lacked the requisite mental capacity to commit the crime.

We examine the report of Dr. Waraich to see if there is any statement or term used which would substantially indicate that defendant was suffering from any continuing, permanent mental incapacity which would relate to the time of homicide. Of course, the report relates only to the time of defendant’s pre-trial motion, and the conclusion of the report is that defendant was mentally able to assist his counsel in the conduct of his legal defense. However, the report was in evidence and was read to the jury. We rule that there was nothing therein contained as would be substantial evidence of insanity or mental irresponsibility. The doctor twice states unequivocally that there was no evidence of psychosis or insanity. See Robinson v. United States (C.C.A.6th Cir.), 144 F.2d 392, 398 [14], where the court said, “The diagnosis in this case is, ‘without psychosis.’ This term is used by psychiatrists to signify that an individual is not insane and that he does not suffer from any form of mental disorder which would render him incompetent and irresponsible.” The I.Q. of 74 (WAIS), “which .means that he is functioning within the borderline range of intellectuality,” does not show in itself that defendant was mentally disabled. In State v. Pinski, supra, loe. cit. 163 S.W.2d 787 [2-4], it was said, “Moronity, mere weakness of intellect, or subnormal mental capacity, is not in and of itself such insanity or mental incapacity as constitutes an excuse or defense to a crime. (Citing cases).” See also State v. Jackson, 346 Mo. 474, 142 S.W.2d 45, 49 [10]. The statement, “However, it may be stated that under extreme stress and frustration he may develop psychotic behavior,” does not establish that such a degree of stress and frustration existed in this case at the time of the homicide as would show such behavior.

The diagnosis that defendant is a “schizoid personality” does not establish his mental incompetency at the time of the commission of the homicide. In Gradwohl, “Legal Medicine,” page 891, we find these two paragraphs:

“The schizoid group consist of classes of individuals with sufficient defects of affective response that they become social problems to themselves, often to relatives, and most often to society in general. These inadequate personalities are unable to meet fully the social, intellectual, emotional, and physical demands of society although psychiatric and physical examination shows that these individuals are not insane. It is evident, as most of them will profess, that they do not have the feeling of possessing the know-how of life and are unable to bring about the economic and social integration that they find required of them. As a group they are low in empathy, vague, passive-dependent or passive-aggressive and complain of low or high feeling-tone intensity which is commonly mixed and unpleasant.
“The schizoid personality is as described above with a grave consciousness of his defects. He reacts to his defects with seclusiveness, suspicion, single-mindedness, serious rumination, and odd defenses against the pain of his acute self-consciousness.”

It is apparent that the description of defendant given by Dr. Waraich in his report generally fits the above definition of a schizoid personality, and also the exclusion from the terms “mental disease or defect” an abnormality manifested only by repeated criminal or otherwise anti-social conduct under § 552.010. There is no evidence of insanity or mental irresponsibility in this case which would require the court to give an instruction thereon. State v. Hutchin, Mo., 353 S.W.2d 701, 703 [7]. Defendant’s points are overruled.

We have examined the matters covered by Supreme Court Rules 28.02 and 28.08, V.A.M.R., and find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.

      . Statutory references are to RSMo 1959, V.A.M.S.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. James Lewis BROWN, Appellant.
    No. 50835.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 12, 1965.

      Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Norman S. London, St. Louis, for appellant.
   HOLMAN, Judge.

Defendant was charged with and found guilty of the offense of tampering with a motor vehicle. The jury fixed his punishment at imprisonment in the penitentiary for a period of five years. See §§ 560.175 (1) and 560.180. (All statutory references are to RSMo 1959, V.A.M.S.) Defendant has appealed from the ensuing judgment.

John Sewell, a contractor living in Overland, Missouri, owned a 1963 Oldsmobile Starfire automobile. On the night of December 2, 1962, he parked the car in front of his home and locked it securely because it contained about $600 worth of tools. On the next morning the automobile had disappeared and Sewell promptly reported its disappearance to the police officers. He later saw the car at a junkyard in a dismantled condition, and recovered some of his tools from the basement garage of a house owned by Mr. and Mrs. Alvin Hathaway located in St. Charles County. At the trial of this case Mr. Sewell identified the certificate of title to the car and a chattel mortgage he had given thereon and those instruments were admitted in evidence. They showed the serial number of the automobile to be 636K01243 and the motor number J016623S. He stated that he had not actually checked the motor number on the automobile, and that he had not given anyone permission to cut up his automobile.

Alvin and Delores Hathaway owned a residence located on Pittman Hill Road in St. Charles County. It had been constructed by “Nationwide Homes” of which Mr. Woodring was the president. A week or so prior to December 9, 1962, Woodring called and asked Alvin if he wanted to rent the residence and Alvin replied that he did. Upon going to Mr. Woodring’s office Alvin was introduced to John Paul Spica (who was then using the name of Price) as the prospective renter. Alvin instructed Woodring to draw up a lease and, at that time gave Spica certain keys to the house because Spica had said he wanted to have an interior decorator do some measuring. Alvin testified that Spica was the only man he saw, but he recalled that Mr. Woodring had stated to him over the phone that he had “a couple of fellows” that wanted to rent the house. The lease was supposed to have been signed on December 9, but Mr. Woodring was not in the office on that day and Alvin did not sign it. However, Woodring did call on that date and advised Alvin that the people were at the house with a moving truck and wanted to know if he wanted to come out and get some patio furniture he had left there. He went to the place immediately and saw that Spica had begun to move into the house. He stated, “It was a surprise to me that he was in there because the lease had not been completed.” Since he saw drapes at the windows he thought some one might be there so he knocked at the door and when no one answered he used his key and went into the house. At that time he saw a dismantled car in the garage which was a part of the building. Shortly after he returned home he told his wife what he had seen in the house. He had to go to work that afternoon but his wife, accompanied by some friends, went out to the house at about 10 p. m. to investigate. There were no lights in the house so she used her key and entered and they found no one present. They saw the dismantled car in the garage and she obtained its motor number. She reported the situation to the sheriff’s office and, about one a. m., Deputy Sheriff Carl Sellers went with her to the house where he investigated the situation and verified the motor number she had given him. Sellers reported the facts to his office and the office contacted the St. Louis County police and shortly thereafter was notified that the car had been stolen. The motor number obtained by Mrs. Hathaway, and verified by the officers, was the same as that contained in the instruments admitted in evidence.

At about 10 a. m. on the morning of December 10, Lester Plackmeyer, Sheriff of St. Charles County, and Robert Mudd, trooper with the State Highway Patrol, accompanied by Mr. and Mrs. Hathaway, made another trip to the residence in question. When the sheriff knocked at the front door Spica answered and the sheriff promptly arrested him. The officer then found defendant in the kitchen and he was arrested. These men were arrested on a charge of suspicion of possession of a stolen automobile. Immediately thereafter the officers searched the premises and examined the dismantled automobile. Trooper Mudd took many pictures of the automobile and of the interior of the house, and also found footprints in the grease on the garage floor which corresponded with the print of the boots defendant was wearing. The witness testified that defendant at that time was wearing work clothes which were greasy. Trooper Mudd also testified that he talked with defendant who stated that he had furnished his brother’s automobile to bring acetylene tanks to the house that morning; that six automobile locks were found in the kitchen and an acetylene cutting torch and two tanks, as well as a number of tools, were in the garage. The sheriff testified that he was not familiar with the names of defendant or Spica and would have arrested anyone he found in the house at that time.

Fred Solomon, who lived near the Hathaway house, testified that he traveled over Pittman Hill Road several times a week and that between December 3 and December 10, on three different occasions, he saw colored lights (indicating use of an acetylene torch) through the garage windows of the Hathaway house. The lights were bluish, pink, and white.

It was admitted that the sheriff had no search warrant, and had no warrant for the arrest of either the defendant or Spica at the time he went to the Hathaway house. Prior to trial defendant filed a motion to suppress all evidence, including tangible objects, pictures, and information obtained by a search of the house, which search was alleged to have been unreasonable, illegal, and violative of various sections of the Constitution of Missouri and of the United States.

In support of his motion to suppress defendant offered the testimony of Alvin Hathaway, Lestei Plackmeyer, and Carl Sellers. The motion was overruled. The evidence adduced at that time is included in the foregoing statement of the testimony given at the trial and will not be restated. No evidence was offered by defendant at the trial.

We will first consider defendant’s contention that the court erred in overruling his motion to suppress evidence obtained by an alleged illegal search and in subsequently admitting that evidence at the trial. We have concluded that there is no merit in that contention.

In considering this point we will assume (a fact which is doubtful) that defendant has the same standing to complain of the search that Spica would have had. It is our view that neither would have standing to complain because the undisputed evidence indicates that they did not have lawful, exclusive possession of the premises as tenants of the Hathaways. Since Spica obtained a key upon the representation that he wanted to enter the house to measure some windows, he was, at most, a limited licensee as the owners had not surrendered their right to possession of the house. Under the testimony the rental agreement was not to become effective until the written lease was signed and that was never done. In that situation, the Hatha-ways had a legal right to enter the house and could authorize the officers to do likewise.

There is also an additional ground upon which the trial court’s ruling may be sustained. The sheriff had reasonable cause to believe that defendant and Spica had each committed a felony and he made a lawful arrest of both before the search complained of was made. In that circumstance the search was not unlawful. State v. Vollmar, Mo.Sup., 389 S.W.2d 20 [7]. Defendant says, however, that the sheriff’s information was obtained as a result of previous unlawful searches and hence such could not be used as the protective element of probable cause. If that were true his contention might be correct. The sheriff’s information was, however, obtained from Mrs. Hathaway and the St. Louis County Police Department. Defendant may not complain of Mrs. Hathaway’s entry into the house because the constitutional protection against unreasonable search and seizure applies only to governmental action. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878 [12]. While it is true that a deputy sheriff accompanied Mrs. Hathaway on one of the trips to the house, he did not get any additional evidence or information as she had already seen the dismantled car and obtained the motor number thereof.

In support of his contention defendant relies on Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. Those cases are readily distinguishable upon the facts. In Chapman the officers, with the consent of the landlord, entered a rented house through an unlocked window and seized a still and a quantity of mash. In the prosecution of the tenant the search was held to be unlawful. In Jeffers a search was ruled unlawful where officers entered and searched a hotel room after obtaining the key from the assistant manager of the hotel.

For the reasons stated, we rule that the trial court did not err in overuling the motion to suppress and in admitting the evidence complained of.

Instruction No. 3 reads as follows: “The court instructs the jury that if you find and believe from the facts and circumstances in evidence in this case, beyond a reasonable doubt, that the defendant, James Lewis Brown, on or about the 10th day of December, 1962, in the County of St. Charles and State of Missouri, did unlawfully, wilfully and feloniously tamper with a motor vehicle, to wit: a 1963 Oldsmobile automobile, Motor Number J016623S, being the property of one John William Sewell, by disassembling and removing parts, pieces, and sections of said, automobile, all without the permission of the said owner thereof, John William Sewell, then you will find the defendant guilty of feloniously tampering with a motor vehicle and assess his punishment at imprisonment in the penitentiary for a term not exceeding five years, or at confinement in the county jail for a term not exceeding one year, or at a fine not exceeding one hundred dollars or by both such fine and imprisonment. Unless you so find the facts, you will find the defendant not guilty of feloniously tampering with a motor vehicle.”

Defendant contends that the italicized portion of the instruction assumes that John Sewell owned the automobile rather than submitting that issue to the jury for its determination. For the purposes of this opinion, we will assume (but do not decide) that the words complained of do assume the fact of ownership of the automobile in Sewell. We make that assumption because we have in mind that every improper assumption of fact in an instruction does not necessarily render the instruction reversibly erroneous. Under the facts of this case we are of the opinion that the assumption in question was not prejudicial to defendant. This court has stated that “there are numerous cases holding it is not reversible error to assume the existence of a fact which has been clearly proven and is undisputed.” State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552, 556. We think that the quoted rule should be applied sparingly and in a careful and restricted manner, depending upon the facts of the particular case. However, we are convinced that the facts in the instant case clearly warrant the application of said rule. Here, the fact of Sewell’s ownership of the car was not only undisputed but was proved by the official certificate of title, as well as other documentary evidence, and Mr. Sewell’s personal testimony. That the car found in the Hathaway garage was the one owned by Sewell was shown by evidence which, for all practical purposes, was irrefutable. The motor and serial numbers on the car were shown to be the same as those stated in the documents in evidence. Some of the tools left in the car by Sewell were found in the Hathaway garage, and after the dismantled car was taken to a junkyard it was seen and identified by Sewell as his automobile. In view of such unassailable proof of an undisputed fact we rule, as indicated, that the assumption in question does not constitute reversible error.

The next point briefed by defendant relates to alleged error in connection with the testimony of Trooper Mudd. A portion of the trooper’s testimony is as follows:

“Q (by Mr. Dalton). Trooper Mudd, did you have an occasion, after the arrest of the defendant, to talk with the defendant Brown? A. Yes, I did. Q. And when was this ? A. It was at the Hathaway home and, also at the sheriff’s office. Q. And will you relate what was said at the Hathaway home? A. I asked Mr. Brown what his activity was there or what his part was in the Oldsmobile and he denied being in the garage. * * * Q. And did you have a further conversation with him later on? A. Yes, sir. Q. And where was that? A. At the sheriff’s office in St. Charles, Missouri. Q. And would you state what you said to him and what he said to you? * ⅜ ⅜ A. He still denied any knowledge of the Oldsmobile or being in the garage, and I told him that his footprints were in the garage and [that] I, at that time, made the prints of the shoe sole with fingerprint ink, and then he stated that he had been in the garage and had furnished a car to haul acetylene tanks to the house that morning. Q. What did he say with reference to the car? A. He stated that the 1960 Chevrolet that was backed up to the garage was that of his brother’s— Virgil Brown. Q. Did he make any further statement with reference to the acetylene torch or the tanks of acetylene and oxygen? A. Yes, he said that he and the other person present had picked the tanks up on Pennsylvania Avenue that morning. * ⅜ * Q. Was there anything further that he stated to you, Officer? A. Not that I recall; he did state — I asked him if he would give us a written statement and he refused to.” Out of the hearing of the jury: “Mr. London: Your Honor, at this point, I object to the last statement of the witness that he refused to give a written statement. This all occurred after the defendant was placed under arrest and this amounts to a comment on the defendant’s refusal to make a statement, whether written or oral. The defendant, being under arrest, has no duty or obligation to make any statement and his failure or refusal to do so cannot in any way be commented upon by the State’s witness. I, therefore, ask that it be stricken and the jury instructed to disregard it and that a mistrial be declared.” In the hearing of the jury: “The Court: Ladies and gentlemen, the last question and answer put to this witness were highly improper and the answer should not have been given. It will be disregarded by the jury. Please give it no concern whatever.”

Defendant contends that the court committed prejudicial error in failing to declare a mistrial. As a basis for this contention defendant relies on the rule that “ ‘in Missouri the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement.’ ” State v. Vainikos, Mo.Sup., 366 S.W.2d 423, 427. We do not think that rule has any application in the situation presented. Here it was shown that defendant did not remain silent but had made certain verbal denials and admissions to the officer. It is reasonable to conclude that the officer was merely asking defendant if he would give a written statement reciting the facts he had stated verbally. Under those circumstances, we doubt that the statement of the trooper was improper or erroneous. However, even if we assume that it was improper, we note that the trial court unequivocally directed the jury to disregard the statement and to “give it no concern whatever.” We think that admonition was sufficient to correct any possible error, and we find nothing in the transcript to indicate that the trial court abused its discretion in failing to declare a mistrial.

The final contention of defendant is that the trial court erred in refusing to grant a mistrial because the prosecuting attorney had allegedly failed to properly comply with a pretrial agreement between the attorneys. The matter arose in this fashion: When the prosecuting attorney, in his opening statement, related that he expected Trooper Mudd to testify that defendant had admitted that he had obtained the oxygen and acetylene tanks, defendant’s counsel (out of the hearing of the jury) requested a mistrial. His grounds therefor were that he had spoken to Mr. Dalton some time ago “as to the necessity of taking depositions of various witnesses in this case and we agreed between us that, rather than to spend any time in doing so, Mr. Dalton would advise me of the nature of the testimony of the various witnesses; that in accordance with that agreement and relying on that agreement I last week spoke with Mr. Dalton about the testimony of the witnesses and in this talk with him there was absolutely no mention made by him as to any statement of any sort by the defendant relative to the subject of oxygen tanks * * In response, the prosecuting attorney stated that “Mr. London did have a conversation with me. However, I want the record to show that that was a telephone conversation. Mr. London had earlier indicated to me that he would contact me relative to going over the testimony of the witnesses that he had intended to take the deposition of. I did not give any indication that I didn’t expect or didn’t want him to take depositions of the witnesses. It was a matter of his handling of the case. However, I told him that I would cooperate with the testimony of the witnesses in any way that he wanted and he could go over their statements. I heard nothing more from Mr. London until within the last week when I received a telephone call from him and during this telephone conversation he asked me about the testimony of the witnesses. I believe I answered every question that he asked me. I submit to the court that there may have been a few things that we couldn’t handle by a telephone conversation but at the time and under the circumstances I did everything in my power to cooperate with the defendant in that regard.” The court overruled the motion for a mistrial.

We agree with the ruling of the trial court. A mistrial should not ordinarily be declared in a judicial proceeding of this nature (with resulting expense and inconvenience to parties, attorneys, witnesses, and others) because of an alleged partial failure of performance by an attorney of a verbal, informal, out-of-court agreement of the nature indicated. The time of courts should not be taken up in endeavoring to determine the terms of verbal out-of-court agreements between attorneys and in deciding whether such agreements have been performed. It is common knowledge that honest disagreements frequently arise as to the terms and manner of performance of such agreements. If defendant’s attorney desired to avoid the expense and trouble of taking depositions by an agreement of the type indicated, he had to run the risk of disagreement both as to terms and performance. It is certainly understandable that an attorney, in a telephone conversation, might inadvertently fail to state every fact that every witness would relate in his testimony. It would be rare indeed for such an occurrence to warrant the granting of a mistrial. We see no basis for a holding that the trial court abused its discretion in failing to grant a mistrial in this instance.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Charles Cecil SHIELDS, Appellant.
    No. 50761.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Special Asst. Atty. Gen., Kansas City, for respondent.
    Paul S. Brown, St. Louis, for appellant.
   HENLEY, Judge.

By an information substituted for an indictment defendant and one Robert Kren-ning were charged with robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120 and 560.-135. (All references to statutes and rules are to RSMo 1959 and V.A.M.S., and V.A. M.R., respectively.) The information also charged defendant under the Habitual Criminal Act with convictions of prior felonies. Section 556.280. A severance was granted Krenning, and upon separate trial a jury found the defendant, Shields, guilty of robbery in the first degree by means of a dangerous and deadly weapon. The court found that defendant had been convicted of prior felonies and assessed his punishment at imprisonment in the penitentiary for forty years. His motion for new trial was overruled, he was sentenced in accordance with the punishment assessed, and he appeals.

Defendant assigns as error argument of the state’s attorney described by defendant as a reference to his failure to testify, and the admission of certain testimony of a police officer. A brief description of the evidence will suffice.

On Saturday afternoon, February 2, 1963, in the course of about five minutes, two men held up James Otto Laudel in the basement office of Laudel Realty Company at 3616 Castleman Avenue in St. Louis. The defendant was identified by Laudel at the police station, and later at the trial, as being the older of the two and the other, the younger man, was identified by defendant to police officers as Robert Krenning. Under compulsion of a .45 automatic pistol pointed at him by defendant and the announcement that “this is a holdup”, Laudel permitted the younger man to take his wallet containing approximately $18. Being dissatisfied that a search of the office had not produced additional money, defendant took Laudel’s Elgin wristwatch from the latter’s wrist and then “slugged” Laudel twice with the pistol knocking him into a corner across the room. As Laudel regained consciousness, the building janitor walked into the office and was beaten into unconsciousness with the pistol by the younger man. In one of the blows to the janitor’s head a plastic grip of the pistol handle was broken, the pieces falling to the floor. These pieces were recovered by police and identified as fitting together and belonging to the pistol found in the possession of one Charles Dacus on his arrest the next day. Defendant and Krenning were also arrested the next day. At his arrest, defendant had on his wrist the Elgin watch taken from Laudel during the robbery. In a statement to witness, Joseph Grau, a detective of the St. Louis Police Department, defendant admitted the robbery and identified the pistol found in the possession of Dacus as that used in the robbery. Defendant, in his statement to the detective, identified Krenning as one of his co-conspirators and his accomplice at the Realty Company office, and he identified Dacus as the accomplice who drove him and Krenning to the office and in whose automobile they left the scene.

Defendant did not testify, nor was evidence offered in his behalf.

Two of the four points relied on by the defendant are that the court erred in permitting police officer Lawrence Ventmiglia to testify, over objection, that: (1) he arrested Robert Krenning, and, (2) he arrested Charles Dacus at his home and found a .45 automatic pistol with three live bullets in Dacus’ bedroom. He says that evidence of these arrests and the finding of those articles in Dacus’ room was inadmissible because there was no evidence to connect Krenning, or Dacus and the pistol and bullets to the defendant or the robbery. The two points are presented together in defendant’s argument and we too find it convenient and logical to treat the points in the same manner.

Evidence of the arrest of those defendant has identified as his accomplices and of the recovery of the pistol used in the robbery from one of those accomplices is, of course, admissible. State v. Johnson, Mo., 286 S.W.2d 787, 792 [9]. Evidence of his own statements to the detective refute his reasons for his objection to this testimony.

The two remaining points of error are closely related and may be treated together, for disposition of the first will obviate a discussion of the second. The first of the two, in the words of defendant, is: “The trial court erred in refusing defendant’s request for a mistrial when the State’s Attorney referred to defendant’s failure to testify by telling the jury there was one other witness (referring to defendant) whom they could test by the standards in Instruction No. 3 the credibility of witnesses instruction.” The second of the two, and his last point, is that this court should invoke the plain error rule (Criminal Rule 27.20(c)) if we hold that this argument of the state’s attorney was a reference to defendant’s failure to testify but find that the point was not preserved for review, or defectively raised or preserved. While the objection was not a model, we deem and treat it as sufficient to preserve the alleged error for review.

That portion of the state’s attorney’s closing argument objected to by defendant is: “There is one other witness, one strictly important witness, who has told you about this robbery and explained to you how it was committed, and again, you can say, T will test this witness by the standard which you are to apply through the Court’s Instruction No. 3;’ and those words are important right here — he says, through Officer Grau: T held up James Laudel. I used that gun. I took that watch’.”

Instruction No. 3 is the ordinary credibility of witnesses’ instruction stating, in that part pertinent to defendant’s point and contentions, that in determining the credibility of a witness and the weight to be given his testimony the jury may take into consideration the witness’ demeanor on the stand and the probability or improbability of his statements.

Section 546.270 and Criminal Rule 26.08, in identical language, state that: “If the accused shall not avail himself * * * of his * * * right to testify * * * it shall not * * * be referred to by any attorney in the case ⅜ * The Rule and the Statute are mandatory. State v. Shuls, 329 Mo. 245, 44 S.W.2d 94, 97 [8], Counsel (and the court) should follow the practice of rigidly refraining throughout the trial from any reference to a defendant’s failure to testify. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455 [13]. This court has said that if counsel for the state in fact, either directly or indirectly, refers to the defendant’s failure to testify he is entitled to a new trial. State v. Shuls, supra; State v. Hayzlett, Mo., 265 S.W.2d 321, 323 [3,4]. However, the safeguards of the Rule and the Statute are limited as they are modifications of the common law and we ought go no further in their construction than their express terms provide. State v. Janes, 318 Mo. 525, 1 S.W.2d 137, 138 [3]; State v. Greer, 321 Mo. 589, 12 S.W.2d 87, 90 [6]; State v. Lindner, Mo., 282 S.W.2d 547, 550. In State v. Lindner, supra, 1. c. 550, we said, “The key words of the statute, * * * are ‘accused’ and ‘testify,’ and the ultimate test of whether the prohibition has been violated is whether the jury’s attention was called to the fact that the accused did not testify.”

Defendant contends and argues that the state’s attorney made direct reference in his argument to defendant’s failure to testify by calling the defendant a witness and stating that the jury could test defendant as a witness by the standards of instruction No. 3, although defendant did not take the stand and testify.

Does the description of defendant as a “witness”, in the sense that word is used in the argument, constitute a direct reference to defendant’s failure to testify? We think not. Or, does this description constitute such indirect reference thereto that it was reasonably apt to have directed the jury’s attention to the fact he did not testify? Again, we think not. The argument pointed to what defendant did say, not to what he did not say or had failed to say and not to the fact he did not testify. The argument was a reference to his admissions as a part of the strength of the state’s evidence against him; not to the weakness of his defense. The state’s attorney did not say the words of defendant’s confession stood uncontradicted by him, or that defendant had failed to take the stand to deny his confession or the charges against him. In State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262, 264 [8], the prosecuting attorney, in discussing the testimony, referred to statements made by defendant to the Sheriff when the latter was searching his premises. After stating what the defendant had said, he remarked, “And he (referring to the defendant) don’t deny that.” We held: “This, under the most strained construction, does not violate the statutory rule * * * prohibiting a reference to the defendant’s failure to testify. It was simply a fair deduction drawn from defendant’s voluntary statements * * * made in the presence of the sheriff * * This more closely approached a direct reference to the prohibition of the Statute and Rule than did the argument with which we are now concerned. Also, see: State v. Boyer, 342 Mo. 64, 112 S.W.2d 575, 581 [12]. As against the contention that this was a direct reference to the defendant’s failure to testify, we hold these remarks of the state’s attorney were merely a fair argument of the testimony, a fair argument of a significant part of the testimony of Detective Grau.

Too, this portion of the argument is taken out of context by the defendant. Viewed in proper perspective any intent to call attention indirectly to defendant’s failure to testify is dispelled. The objected-to remarks came within a few sec-conds of the close of the argument. Immediately preceding them the state’s attorney had adopted the device of referring to inanimate articles as “witnesses” against the defendant. Using the word “witness” as a figure of speech, he had referred to the pistol and the broken plastic pieces obviously fitting together and to the pistol handle, as well as Laudel’s watch found on defendant’s wrist, as being “witness [es] which speak to you * * * in language that is very difficult to disbelieve * * Continuing in that manner, counsel referred to what “ * * * he [defendant] says through Officer Grau: T held up James Laudel. I used that gun. I took that watch.’ ” We consider that even if this argument could be described accurately as an indirect reference, it was without any calculated intent to cross the prohibited line; and more important and more to the point, the reference was so remote as not reasonably apt to have the effect of calling the attention of the jury to defendant’s failure to testify.

“Any argument by a state’s attorney urging the cogency and compelling force of the state’s evidence and a conviction, especially in a case in which there are no witnesses and no evidence on behalf of the accused, may cause the jury to exercise their function of reasoning upon the evidence and finally to observe the apparent fact that the accused not only has no witnesses and no evidence but that he did not testify. But the arguments of state’s attorneys under those circumstances do not constitute an infringement of the prohibition of the statute.” State v. Hayzlett, Mo., 265 S.W.2d 321, 325. We might well add to the quotation: any reasonably intelligent jury of today will observe the evident fact that the defendant has chosen not to testify, even though the choice goes unmentioned in argument.

In State v. Heissler, Mo., 324 S.W.2d 714, 716 [6], the defendant contended that an alibi instruction given by the court was erroneous because it amounted to a comment on his failure to testify. He pointed to these words of the instruction: “ * * * he says he was not present at the time and place of the commission of the alleged crime, but was elsewhere”, and argued that the use of the words, “he says he was not present”, when, in fact, he did not testify, invited the attention of the jury to his failure to testify. The instruction in Heissler, using words strikingly similar to those used in argument by the state’s attorney in the instant case and presenting the same question, was held by this court not to be a reference to defendant’s failure to testify. We again so hold.

An examination of the record as required by Rule 28.02 discloses no error.

The judgment is affirmed.

All concur.


text:
    In re Robert Edmund WILSON, Jr.
    No. 50439.
    Supreme Court of Missouri, En Banc.
    June 14, 1965.
    Rehearing Denied July 12, 1965.

      Joseph S. McDuffie, Charles R. Oldham, St. Louis, for respondent.
    Walter M. Clark, Richard B. Dempsey, David S. Hemenway, St. Louis, for informants.
   HENLEY, Judge.

This is an original disciplinary proceeding in this court based upon an information filed, with leave, by the Bar Committee of the Twenty-second Judicial Circuit on October 15, 1963, charging the respondent, Robert Edmund Wilson, Jr., a member of the Missouri Bar, with certain acts of misconduct. The prayer of the information is that he be disbarred. Prior to the filing of this information the procedural requirements of Rule 5.03 were complied with. (All references to rules and statutes are to Supreme Court Rules, V.A.M.R., and to RSMo 1959 and V.A.M.S., respectively.)

The information is in two counts. It charges respondent with violation of Rules 4.11, 4.29, 4.32 and 4.47, and Section 560.-156 (Stealing), in substance, as follows:

1. That while president of the Ferrier-Harris Home for the Aged, hereinafter referred to as The Home, a not-for-profit corporation and a United Fund Agency, between March 23 and November 16, 1961, inclusive, he wrongfully and unlawfully converted to his own use funds of The Home in the amount of $6,212.00; and,

2. That as a result of this conversion The Home did not have funds to pay, when due, federal withholding and social security taxes of its employees and thereby incurred interest and penalties in the amount of $325.70.

Respondent’s answer admits that he is a member of the Bar with offices and residence in the Twenty-second Judicial Circuit, that he was president of The Home, and that The Home is a United Fund Agency, but he denies each and every other allegation of the information.

The issues being thus joined the court appointed the Honorable Richard J. Chamier as Special Commissioner with power, authority and duties prescribed by our rules. After a pre-hearing conference on May 15, and a full hearing on June 11 and 12, 1964, at both of which respondent was present with his counsel, the Commissioner filed his report containing findings of fact, conclusions of law, and his recommendation that respondent be permanently disbarred.

At the hearing respondent admitted taking and using money of The Home totalling approximately $6,212.00 for his own personal needs. He denies any acts of professional misconduct. That is to say, he contends that it is neither charged nor proved that his admitted acts arose out of an attorney-client relationship, or in connection with the practice of law; that he may not be disciplined for nonprofessional misconduct unless he has been convicted of a crime therefor involving moral turpitude; that for these reasons the informants did not have authority to institute these proceedings; that to discipline him for those acts would be to deny his constitutional rights.

Respondent, a lawyer in his early fifties, son of a lawyer turned minister, and partner of a lawyer with whom he attended law school and later married, was admitted to the Bar in 1947, after being graduated from Chicago Kent College of Law. As a young man in his teens, under the guidance of his father who owned and managed real estate, he apparently acquired considerable experience in the management, maintenance and improvement of rental properties. This experience was added to in a somewhat minor way during his service in the Army in this country and overseas during World War Two. After his honorable discharge from the service, he acquired more experience in this field in St. Louis while managing properties of his father-in-law. All of this we could say prepared him for the satisfaction of what was, in the beginning at least, an altruistic desire to serve his community, but which, in the end, offered a temptation that led to his downfall.

In 1957, after a disastrous fire in a nursing home in Warrenton, it was determined that The Ferrier-Harris Home for the Aged did not meet the requirements of fire safety codes, and authorities were threatening to close it. At the behest of his wife, Margaret, who was then gratuitously serving as attorney for The Home, he, merely as an interested citizen, offered his services and experience in real estate management to The Home. He immediately undertook to secure needed additional funds for The Home from the United Fund Agency, and as a result of his efforts a sprinkler system was installed, stairways were enclosed and other improvements made. Later, in 1958, he was elected to the Board of Directors of The Home. In 1959, he was elected President of the Board and reelected in 1960 and 1961. During this period The Home was renovated and remodeled under his direction. It was changed from what has been described as a drab, dark, rat and roach-infested building to a pleasant habitat. The floors were covered, the walls and woodwork were painted an off-white, a new kitchen, a walk-in freezer, and an automatic laundry were installed, and janitor quarters provided. In the words of the Reverend Doctor Amos Ryce, a member of the Board during a part of respondent’s tenure as president, respondent was “the best functional President we have ever had at the Home”, “he gave [The Home] an air of lightness and respectability”, “when the tile was laid across the split-level type of floor he himself moved in to help lay it and supervise it”, “he changed the decor of the dining room so that these people would feel like human beings and not thrown away”, “he made it more of a homelike atmosphere * * *.”

There is no doubt that respondent spent a great part of his productive hours at The Home, particularly during its renovation. There is evidence that he was at The Home twelve to fourteen hours a day over a period of several months. Presumably his law practice was affected by this absence from his office. He found himself in financial distress; foreclosure proceedings were begun against his real estate and his automobile was repossessed. We have recorded this account of his background and his service to The Home to put in perspective what unfolds later; not because they are particularly material to the issue of whether he should be disciplined. We note that he did not represent The Home as its attorney.

While president of the Board he wrote sixty-seven checks on two bank accounts of The Home payable to himself or to cash, cashed them and used the proceeds as his own. They were written and cashed between March 1 and November 15, 1961, in amounts varying between $25.00 and $98.75, and totaled $6,212.47. His method was to not describe the check on its stub but to leave it blank so that, we may infer, a cursory examination of the checkbook would not reveal his conversions. As The Home’s cancelled checks were returned from the bank, he would, we may infer, remove these from the others so that they would not disclose his conversions. After the bookkeeper returned from maternity leave in September, 1961, she made a search for these checks missing from the bank statements but could not locate them. Later, after an audit in 1962, she found them in a closet on the third floor where, we may infer, they were secreted by respondent. Respondent says that he did not intend to deprive The Home permanently of these funds; that his intent from the beginning was to repay The Home, probably out of a fee he was expecting from an estate he represented.

He has made restitution; a part was paid after disclosure of the shortage and the last payment was made, according to the Commissioner’s report, after final submission of this proceeding to the Commissioner. Respondent testified that he had secured the approval of a Mr. Goodwin, acting director of The Home, to use this money, and that he had disclosed his conversions to the bookkeeper and Goodwin before it was discovered by the latter. This was disputed. The Commissioner found that he had not secured such approval; that he had not disclosed the conversions before their discovery by others; and, that the acting director did not have authority to approve respondent’s acts. We have read the transcript. We agree with these findings of the Commissioner. There is a suggestion that some of the shortage was spent on Produce Row for food for The Home, but the Commissioner found that this is not supported by the facts. We agree. We note that a number of character witnesses, including lawyers and other members of the community, testified that respondent’s reputation for truth, honesty and morals was good; that he is an able attorney, devoted to the interests of his clients. Two members of the Board of The Home testified in respondent’s behalf as to his reputation and character. Both said that after the shortage was disclosed to them in December, 1961, “there was never any feeling that Mr. Wilson intended to permanently deprive The Home of the funds * * Of course none of the matters stated in this paragraph are material to the issue of whether respondent should be disciplined.

Out of his own mouth respondent convicts himself of stealing, to use a distasteful word.

The question squarely presented is whether this court may discipline one of its officers guilty of such misconduct, the acts of which were not committed in his capacity as a lawyer and for which, as a violation of the criminal laws, he has not been charged or convicted.

The Canons of Ethics of the Bar is embodied or codified in Rule 4. It is under this rule that respondent is charged, and it should be noted that he is not charged under § 484.190 providing for the suspension or removal of an attorney. Rule 4.11 provides : “ * * * trust property coming into the possession of the lawyer * * * should not under any circumstances * * * be used by him”; Rule 4.29, that “ * * * He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice”; Rule 4.32, that “* * * a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man. * * Particularly applicable here is Rule 4.47 providing that “A lawyer should always maintain his integrity; and shall not willfully commit any act against the interest of the public; nor shall he violate his duty to the courts or his clients; nor shall he, by any misconduct, commit any offense against the laws of Missouri or the United States of America, which amounts to a crime involving acts done by him contrary to justice, honesty, modesty or good morals; nor shall he be guilty of any other misconduct whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney.” (Emphasis supplied.) The Canons of Ethics, adopted by this court as a Rule, have the same full force and effect as a decision of this court. State ex rel. Clark v. Shain, En Banc, 343 Mo. 542, 122 S.W.2d 882, 884.

The right and power to discipline an attorney, as one of its officers, is inherent in the court. In re Conner, 357 Mo. 270, 207 S.W.2d 492, 495 [2]. This power is not limited to those instances of misconduct wherein he has been employed, or has acted, in a professional capacity; but, on the contrary, this power may be exercised where his misconduct outside the scope of his professional relations shows him to be an unfit person to practice law. In re Williams, 233 Mo.App. 1174, 128 S.W.2d 1098, 1105 [4, 6, 8]; State ex rel. Clark, et al., v. Shain, En Banc, 353 Mo. 542, 122 S.W.2d 882; In re Conner, supra; In re Richards, 333 Mo. 907, 63 S.W.2d 672 ; 5 Am.Jur. pp. 426, 427, § 276 ; 7 Am.Jur.2d pp. 72, 73, § 44; 7 C.J.S. Attorney and Client § 24, pp. 762, 764.

The Williams case, supra, (128 S.W.2d 1098) had its beginning as an original proceeding in the Kansas City Court of Appeals as In re Williams, Mo.App., 113 S.W.2d 353. Here, the opinion of the Court of Appeals held (1) that the action to disbar Williams was based on § 11707 R.S.1929 (now § 484.190) which, it said, was controlling in disbarment proceedings, and, (2) that the court had no power to disbar an attorney for a crime based on acts outside the practice of law in the absence of his conviction or indictment therefor. This court, En Banc, in State ex rel. Clark, et al., v. Shain, supra, quashed that opinion as being in conflict with both In re Richards, supra, and the rules of this court, and further held that the action in Williams was not based on the statute but was based on the rules. It will be recalled that the Richards case was a disbarment proceeding in which the respondent was charged, in substance, with acting as a “go-between” of kidnappers and their victim for which services he was to be paid a fee out of the ransom money. This court said in Richards at 1. c. 682 that it was not called upon to rule whether the respondent was acting in his professional capacity because he had admitted that in his answer and was bound by the admission. We now aver that obviously his acts as a “go-between” were not in his professional capacity, and were not a part of the practice of law as defined by what is now § 484.010, or by any other known definition. The court held in the Richards case that statutory grounds for disbarment are not exclusive. In the Williams case the respondent was charged with both professional and nonprofessional misconduct, the more serious charges being based not on his activities as an attorney, but upon misconduct in relation to the discharge of his duties as a sheriff, and as a probate judge in the years before our constitution required that such judges be licensed to practice law. In the second opinion of the Kansas City Court of Appeals in In re Williams (233 Mo.App. 1174, 128 S.W.2d 1098) the respondent was disciplined for the charges of misconduct relating to his duties as a county official and that court said at 1. c. 1105: “* ⅜ * a weu recognized ground for disciplining an attorney is for misconduct amounting to moral delinquency whether such delinquency is in reference to professional or non-professional conduct.” (Emphasis theirs.) Quoting with approval from texts, that court further said at 1. c. 1105: “ 'As proof of a good moral character is an indispensable requisite for admission to the Bar, the continued possession thereof is equally essential, and an attorney may be disbarred for misconduct, professional or nonprofessional, which shows that he has forfeited his claim thereto. But, in order to warrant the revocation of an attorney’s license for want of a good moral character, his moral delinquencies must be such as to unfit him for the proper discharge of the trust reposed in him; thus, it must appear that he is lacking in common honesty, or’ veracity.’ * * * ‘Any conduct on the part of an attorney evidencing his unfitness for the confidence and trust which attend the relation of attorney and client and the practice of law before the courts, or showing such a lack of personal honesty or of good moral character as to render him unworthy of public confidence, constitutes a ground for his disbarment.’ 7 C.J.S. Attorney and Client, pages 733, 734, § 19. * * * ‘To warrant the removal, however, the attorney’s character must be bad in such respects as to show that he is unsafe and unfit to be trusted with the powers of an attorney, as conduct which is merely discreditable to the attorney, but not dishonorable or criminal conduct, may not be ground for suspension or disbarment.’ ” (Emphasis supplied.) We reaffirm that the court has the inherent right and power to discipline one of its officers guilty of misconduct not committed in his capacity as a lawyer.

In a closely allied theory respondent contends that the Legislature has the power to limit the authority of the courts in disbarment proceedings and that where a statute enumerates causes for discipline a member of the Bar cannot be disciplined for any other cause. In this contention he is not on solid ground. The great weight of authority is that statutory grounds for disbarment are not exclusive. See: In re Richards, supra, 63 S.W.2d 1. c. 678 [8] and cases there cited; State ex rel. Clark, et al., v. Shain, supra, 122 S.W.2d 1. c. 884(3). In the Conner case (207 S.W.2d 492) this court said that while the General Assembly has power to legislate in aid, it has no power to enact a statute which will control, frustrate, limit or infringe upon the right of the Supreme Court to decide fully and finally who shall enjoy, and continue to enjoy, the privileges of an attorney. In quashing the first opinion of the Kansas City Court of Appeals in the Williams case (113 S.W.2d 353) this court said in State ex rel. Clark, et al., v. Shain, supra, at 122 S.W.2d 1. c. 884, in words apropos here: “The opinion of the court of appeals proceeds on the theory that there is a controversy between the legislative and judicial departments over the disbarment of attorneys. There is no such controversy. It is stated in said opinion that the legislature, under the police power, may enact reasonable regulations with reference to the matter. It also is stated therein that said regulations are for the use of the courts in disbarment actions. Everyone agrees to these statements. However, the said opinion goes further and rules that the court must utilize the statutory regulations. There is not a word in the statute tending to sustain this ruling as will appear in the course of this opinion. The correct rule is that the courts may utilize said regulations. If they do so, then said regulations are in aid of our jurisdiction to disbar and not a limitation on said jurisdiction. In re Richards, 333 Mo. 907, 63 S.W.2d 672, 675. Undoubtedly the legislative department, under the police power, ‘has a voice’ in making rules with reference to disbarment. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 994. But the courts are not compelled to proceed under said rules. They may proceed solely under court rules relating to disbarment. If they do so, legislation under the police power is not a limitation on the exercise of the court’s jurisdiction to disbar. Furthermore, the statute was not intended to be a limitation on the exercise of the court’s jurisdiction in disbarment.”

Continuing with his theory that the authority of the court to discipline one of its officers is not inherent and is limited to the causes mentioned in the statute, he contends that to discipline him would constitute a denial of due process and equal protection under the state and federal constitutions. Rule 5 provides due process and it was followed. If by denial of equal protection he means, as he indicates, that his continuance in the practice of law is a right of which he cannot be deprived, he is wrong. “There is no inherent right to continue in the practice of law, but rather it is a mere privilege which will be withdrawn when one proves himself unfit.” In re Downs, Mo., 363 S.W.2d 679, 691 [6], Also see: In re Conner, supra, 207 S.W.2d 1. c. 499 [15].

The charges of the second count of the information have had little mention, primarily because they are incidental to the charges of count one and embody a charge constituting the result of the acts charged in the first count. We note count two and do not overlook it, but it is unimportant to the result in view of respondent’s admission.

The Home is a public institution for the aged, supported in part by public subscription through the United Fund and in part by the aged residing there through their social security and old-age-assistance incomes. Respondent held a position of private trust and assumed a public duty as a member and president of the Board of The Home. No doubt his service was both gratifying and satisfying to him. Special trust and confidence was reposed in him not only because of his services to The Home but also because he was a member of a profession worthy of trust. It was his duty in these circumstances to uphold the honor and dignity of his profession by rigidly maintaining his personal integrity. Instead, he breached the trust reposed in him by The Home, its officers, and his community. In doing so he committed an offense against the laws of Missouri contrary to Rule 4.47. The facts compel that respondent be disciplined. The extent to which he should be disciplined has been given careful consideration. In this- connection we are mindful that he has made restitution. But restitution is not a defense. In re Kohlmeyer, Mo., 327 S.W.2d 249, 252 [2] and cases there cited. Nor does respondent specifically contend that of itself restitution is a defense; rather, he argues it as a mitigating factor. We are mindful too of the testimony of members of the Board of which he was president and others as to his previous good reputation and moral character. This evidence cannot be used to justify or excuse the offense; rather it may be considered only to mitigate the gravity and consequences thereof. We are mindful too that the purpose of proceedings of this character is not to punish the attorney; instead, it is to protect the public and the integrity of the Bar, and to preserve the courts from the ministrations of persons unfit to serve therein as attorneys.

In taking the money of those who trusted him respondent has failed to observe the elemental obligation of honesty. His retention as an officer of the court would be inimical to the public confidence and esteem essential to the courts and the Bar in the efficient administration of justice. He should be disbarred and his name stricken from the roll of attorneys. It is so ordered. The costs are taxed against respondent.

All concur.

WOLFE, Special Judge, concurs.


author: HIGGINS, Commissioner.

text:
    William Joseph IMBLER, Plaintiff-Appellant, v. Bill WOOLEDGE and Lawrence A. Schumaker and Herbert H. Schumaker, d/b/a Missouri Builders Supply Company, Defendants and Third-Party Plaintiffs-Respondents, v. Samuel M. SEWARD, Defendant-Appellant. Marvin GRIES, d/b/a Gries Excavating Company, Defendant and Third-Party Plaintiff-Respondent, v. KEN EVANS, INC., a Corporation, Third-Party Defendant.
    No. 50953.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or to Transfer to Court En Bane Denied July 12, 1965.

      W. F. Daniels, Fayette, Scott O. Wright, Brown, Wright & Willbrand, Columbia, for plaintiff-appellant.
    Robert L. Wesner, Wesner, Wesner & Meyer, Sedalia, for defendant-respondents, Wooledge and Schumaker.
    Shifrin, Treiman, Agatstein & Schermer, Edwin G. Shifrin, St. Louis, for defendant-appellant, Samuel M. Seward.
    Terence C. Porter, Columbia, Welliver, Porter & Cleaveland, Columbia, of counsel, for respondent Marvin Gries.
   HIGGINS, Commissioner.

Action for $75,000 damages for personal injuries in which judgment was entered for plaintiff against defendant Seward for $30,000, and against plaintiff and for defendants Bill Wooledge and Lawrence A. Schumaker and Herbert H. Schumaker, d/b/a Missouri Builders Supply Company, and Marvin Gries, d/b/a Gries Excavating Company. (Trial of issues between these parties was ordered separate from third-party claims and counterclaims involving Ken Evans, Inc.) Plaintiff and defendant Seward have appealed.

Plaintiff, an ironworker, was employed by Ken Evans, Inc., general contractor for construction of an I.G.A. Supermarket in Boonville, Missouri. Defendant Gries subcontracted the excavation work; defendants Schumaker subcontracted to furnish concrete; and defendant Wooledge was a driver for Schumakers. Defendant Seward was the construction superintendent for the general contractor.

At the time of the accident all the excavating had been completed and accepted and a retaining wall was being poured against the excavation wall. The forms for the retaining wall had been erected about 1'½ feet inside the excavation, and ran for about 78 feet both north and south •of the northeast corner of the excavation which was about 13 feet deep at that corner. There was a public alley along the east side of the excavation and a private drive led from the alley west along the north side of the excavation to a garage. There was a fill of cinders, brickbats, and rock along the north side of the excavation. It was said to have sloughed off from time to time and was described as being visible, but its location was disputed, as was its depth which varied from 10 to 12 inches to 2½ to 4 feet.

The accident occurred when a truck loaded with concrete owned by Schumakers and driven to the site by Wooledge fell into the excavation. Wooledge had backed the truck from the alley into the private driveway in order to unload the concrete into the north wall form. The truck was 8 feet wide by 22 feet 9 inches long, and weighed 18 tons with its load. Seward assisted the truck driver by giving directions to indicate, as with previous loads, where he wished the load discharged. Wooledge also used his own judgment as to how close to get to the excavation, and he stopped short of the point where Seward had indicated he wished the truck stopped. After stopping, Wooledge set the brakes, got out, went to the left rear of the truck, and started unloading. The truck was sitting at about a 45-degree angle with the right rear wheel somewhere between 3 and 10 feet from the excavation. When about two-fifths unloaded, the ground underneath the truck gave way and the truck fell into the excavation and against a form upon which plaintiff was working. Plaintiff claimed that the force knocked him to the ground and injured him.

Plaintiff seeks a new trial against defendants Wooledge and Schumaker on an allegation of error relating to Instruction D-5, contending that it assumes facts not in evidence; that those defendants were not entitled to a sole cause instruction; that it fails to hypothesize the necessary facts for a sole cause instruction, and that it fails to negative the negligence of those defendants as has been required of sole cause instructions.

Instruction D-5, which defendants Wooledge and Schumaker call their converse instruction, follows: “The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence Bill Wool-edge backed the truck into the position described in evidence as he was directed to do by the defendant Seward and that in so doing Bill Wooledge did exercise ordinary care and was not negligent, then you are instructed that your verdict must be in favor of Lawrence Schumaker, Herbert Schumaker, and Bill Wooledge.” Plaintiff characterizes this as a sole cause instruction by which a defendant may undertake to absolve himself from liability by submitting a hypothesis of facts from which a jury could find that the negligence of the plaintiff or of some third person was the sole proximate cause of plaintiff’s injuries; but a sole cause instruction is to be distinguished from a converse instruction which does not call for a hypothesis of facts and by which a defendant may seek to absolve himself on the ground that he was not negligent in the respects charged in plaintiff’s submission. Happy v. Blanton, Mo., 303 S.W.2d 633, 637 [3-6]; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 466 [10-15]; Hall v. Clark, Mo., 298 S.W.2d 344, 348 [3-6].

Plaintiff submitted in Instruction P-1 that if the jury found that defendant Wooledge “ ⅜ ⅜ ⅜ failed to use ordinary care in backing said concrete truck * the verdict should be against defendants Wooledge and Schumaker; and in Instruction P-2 that if the jury found that defendant Seward “ * * ⅜ failed to exercise ordinary care in directing the backing of the concrete truck * * the verdict should be against defendant Seward. Thus, in view of the foregoing distinction and the submission in P-1, we hold that Instruction D-5 is a converse of an element essential to plaintiff’s recovery, i. e., the failure of defendant to exercise ordinary care. McCarty v. Milgram Food Stores, Mo., 252 S.W.2d 343, 344. Being a converse instruction, it is not subject to any of the charges leveled at it as a sole cause instruction; and plaintiff cannot complain of the reference to the directions of defendant Seward or that such was contrary to the evidence because such facts were contained in his own hypothesis in Instruction P-2. Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, 102 [7,8]; Baron v. Aftergut, Mo., 387 S.W.2d 535, 537 [2].

We hold that the court did not err in giving Instruction D-5.

As ground for a new trial against defendant Gries, plaintiff charges that the court erred in excluding expert testimony offered from defendant Seward relative the safety of the excavation. Plaintiff’s offer of proof was: “I will prove by this witness (Seward) that if he were permitted to testify that he would state that this fill of two and a half to four feet deep along the north wall of the excavation, and that this fill had loose brick and cinders and other debris and that the excavation wall would not be safe and would be dangerous * ⅜.” Immediately after the objection of defendant Gries to this offer was sustained, the question and answer following were asked of and received from the witness Seward:

“Q Let me ask you one other question. Assuming that this fill which I have referred to of two and a half to four feet deep along the north wall, and assuming further that the fill had sluffed off several times prior to the date that it fell in with the truck, and assuming further that they were going to pour concrete out of trucks into the retaining wall, would you consider this a safe condition to leave there? ⅜ ⅜ A Under your assumptions, no, it would not be safe.”

Thus, plaintiff got the evidence which he sought by his offer of proof, and the error, if any, in refusing the offer was cured. McMillan v. Bausch, Mo., 234 S.W. 835, 836 [1,2].

Defendant Seward contends that “Service obtained upon Defendant-Appellant, Samuel M. Seward, an Illinois resident, under the provisions of Missouri Nonresident Motorist Statute, R.S.Mo. 506.200 et seq., was invalid and did not confer jurisdiction over the person of Seward upon the courts of Missouri.” This contention was first urged by motion to quash in which Seward contended that plaintiff’s second amended petition showed on its face that Seward was not the user or operator of a motor vehicle on the public highways at the time mentioned, and was maintained and preserved throughout all proceedings, including motion for new trial.

In order to cause process to issue under Section 506.200 et seq., RSMo.1959, V.A. M.S., plaintiff alleged in his second amended petition “that the Defendant, Samuel M. Seward, is a nonresident of the State of Missouri whose domicile and residence is in the State of Illinois and whose address is 526½ East Court Street, Paris, Illinois, and that at all times herein mentioned the said Samuel M. Seward was individually and/or as the agent, servant and employee of Lawrence A. Schumaker and Herbert H. Schumaker, d/b/a Missouri Builders Supply Company, and was engaged in the use and operation of a motor vehicle * * * on the public highways of the State of Missouri.” Defendant Seward concedes that the above allegation was sufficient to cause process to issue and that the provisions of the statute were complied with; but he contends the service thereby obtained upon him is invalid because: (a) he was not a “person” using and operating a motor vehicle within the meaning of the statute; (b) the accident involved occurred on private property; and (c) the accident occurred while the vehicle was unloading and the vehicle thus was not in “use and operation.”

Section 506.200, RSMo.1959, V.A.M.S., defines “person” as:

“(1) The owner of the motor vehicle or trailer, whether it is being used and operated personally by said owner or by his agent;
“(2) An agent using and operating the motor vehicle or trailer for his principal;
“(3) Any person who is in charge of the motor vehicle or trailer and of the use and operation thereof with the express or implied consent of the owner.”

Section 506.210, RSMo.1959, V.A.M.S., provides in part:

“The use and operation of a motor vehicle or trailer in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:
“(1) An agreement by him that he * * shall be subject to the jurisdiction of the courts of this state in all civil actions and proceedings brought against him * * * for damages to person or property * * * growing or arising out of such use and operation; and
“(2) An appointment by such nonresident * * * of the secretary of state of Missouri as his lawful attorney and agent upon whom may be served all process in suits pertaining to such actions and proceedings ;
“(3) An agreement * * * that any process * * * so served shall be of the same legal force and validity as if personally served in this state.”

In Boulay v. Pontikes, D.C., 93 F. Supp. 826, 828 [1,2], the court said: “The Non-resident Motorist Statute of Missouri, imposing a contractual obligation on nonresident motorists who use the highways of said State for the operation of their motor vehicles, is in derogation of the common law and affects substantial rights so that it cannot be extended by implication but must be strictly construed.” See State ex rel. Boyer v. Weinstein, Mo.App., 384 S.W.2d 275, 277 [1].

Plaintiff’s second amended petition shows that aside from the averment by which process was caused to issue against Seward, there are no allegations of use and operation of a motor vehicle on the public highway. On the contrary, the petition shows that the excavation in which the retaining wall was being poured was not in or on the public highway; that plaintiff was inside the excavation when the truck fell into the excavation and against the form upon which plaintiff was standing; that the truck was being backed to the excavation and along the excavation wall for the purpose of unloading concrete into the excavation; that the excavation wall which gave way and upon which the truck was being operated was not in or a part of the public highway; that it was this operation of the truck with which Seward was charged to have a part by giving hand directional signals. Thus, the incidents of use and operation of the truck and negligent acts alleged to have given rise to the accident in this case occurred off and away from the public highway, and they were not connected with, nor did they grow out of, use and operation of the truck on the highway. Even if Seward is assumed to be a “person” within the meaning of the statute, the use and operation described here did not render him subject to process under Section 506.200 et seq., supra, and the court acquired no jurisdiction over him. State ex rel. Boyer v. Weinstein, supra, 1. c. 278 [2].

Plaintiff contends that there was evidence to show that the accident occurred on a public highway, and points to the testimony of the driver of the truck, defendant Wooledge, who testified that his right front bumper was “partially still in the alley.” This does not affect our holding because even if the bumper was partially in the alley, it was there only as an incident to the described operation and accident which occurred off the public highway. Plaintiff apparently placed no value on this evidence either, because he pleaded and submitted his case against both Seward and Wooledge on failure to use ordinary care. He could have pleaded and submitted his case on the highest degree of care if he had intended to charge negligent operation of a motor vehicle on the public highway. Section 304.010, RSMo.1959, V.A.M.S. Plaintiff cites Kohanovich v. Youree, 1 Storey 440, 51 Del. 440, 147 A.2d 655, 73 A.L.R.2d 1347, and Schefke v. Superior Court, 136 Cal.App.2d 715, 289 P.2d 542, in support of his argument that Seward was subject to the statute, but they are not in point for the same reasons and distinctions ably drawn in State ex rel. Boyer v. Weinstein, supra, 384 S.W.2d 1. c. 277 [1].

Accordingly, the judgment in favor of defendants Bill Wooledge and Lawrence A. Schumaker and Herbert H. Schumaker, d/b/a Missouri Builders Supply Company, and Marvin Gries, d/b/a Gries Excavating Company, is affirmed; the judgment against defendant Samuel M. Seward is reversed and the cause is remanded with directions to quash the service obtained upon defendant Samuel M. Seward.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.