author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Wilbert Benjamin WILLIAMS, Appellant.
    No. 51153.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
   HIGGINS, Commissioner.

Appeal from an order overruling appellant’s motion to vacate judgment and sentence under Criminal Rule 27.26, V.A.M.R.

On January 30, 1954, Wilbert Benjamin Williams pleaded guilty to a charge of robbery in the first degree and was sentenced to imprisonment in the penitentiary for a term of twenty-five years. Section 560.135, RSMo. 1959, V.A.M.S.

On January 25, 1954, at approximately 2:25 P. M., Wilbert Benjamin Williams and Marvin Harold Howard entered the Farmers & Merchants Bank in Wright City, Warren County, Missouri. Appellant was carrying a .25-caliber automatic pistol and his companion was carrying a 20-gauge sawed-off shotgun. They ordered four bank employees and three customers into the vault and closed the door on them. They then put $21,797.50 into a bag, ran to their automobile and sped east on U. S. Highway 40. They were stopped and arrested by the state patrol several miles south of Wentz-ville, and were taken back to the bank where they were identified as the persons who robbed the bank a short time earlier.

Appellant contends that the judgment and sentence should be set aside because “Defendant was denied due process and the equal protection of law * * He gives six reasons in support of his contention, which are:

“1. * * * there was no thorough determination of his capabilities to adequately and clearly understand the law of the case, that is, he was not advised of the various defenses available to him; the Court made superficial inquiries as to appellant’s schooling * * * which plainly showed that he was not qualified to conduct his defense * * K. The Court did not judicially determine whether or not defendant intelligently waived his right to counsel; * * * it then became the duty of the Court to protect defendant’s rights * *
“2. The Constitution of Missouri * * * and the 5th and 14th Amendments to the Constitution of the United States prohibit convictions obtained as was this one. There were no witnesses * * *, there was simply an offense alleged, a police report made, defendant was arrested without reasonable grounds * * * all of which was purely circumstantial * * * because of the evidence found in the car * * *. The ‘And other circumstances affecting defendant’ (from Criminal Rule 29.01) were not considered * *
“3. In the absence of the Court’s findings being made a part of the court record, it may be reasonably assumed that the Court failed to assume proper responsibility as provided in * * * Rule 29.01 * * *. Thus, the Court should have of its initiative and volition and discretion, considered the serious aspects of the offense and appointed counsel.”
“4. The plea of guilty * * * is null and void; not only because it was involuntarily given, but because, also, the Court did not * * * grant a preliminary hearing to determine its voluntariness * * *. Defendant was advised by the prosecutor (to plead guilty because he would be convicted anyway and the plea would lessen the gravity of the crime) * ⅜
“5. * * * that an involuntary plea of guilty cannot be used to obtain a conviction * *
“6. For a layman of low-level intelligence, * * * ⅛ * * * will be judicially noted that * * * inducements by the prosecutor not only did not lessen the gravity of the offense charged nor the severity of the sentence, but also misled defendant boy indicating that there was not much for defendant to worry about since he had not been identified by any witnesses.”

Contrary to the contention made in reason 3, the trial court filed the transcript of proceedings required by Criminal Rule 29.01 (b), V.A.M.R.; and inasmuch as that transcript so completely contradicts and belies appellant’s charges, we quote from it at length.

“EXAMINATION OF DEFENDANT BY THE COURT:

“Q Your name is Wilbert Benjamin Williams? A Yes, sir.
“Q How old are you? A 21. Q When is your birthday? A The 30th of November, ’32.
“Q Where do you live? A St. Louis County. Q Whereabouts ? A Elmwood Park. Q What is your address? A Route 2, Box 375, Clayton 24, Missouri.
“Q Are you married or single? A Married. Q What does your family consist of? A Wife and three kids.
“Q How far did you go in school? A The 11th grade. Q That would be what, Junior in High School? A Yes, sir.
“Q Williams, you are charged in this Court with the offense of robbery in the first degree and you are charged to have, on January 25, 1954, in Warren County, Missouri, wilfully, unlawfully and feloniously, robbed, stole and take and carry away the sum of $21,797.50 of money from the F arm-ers and Merchants Bank of Wright City, Missouri, putting one Dorothy Williams in fear of some immediate injury to her person by means of a dangerous and deadly weapon, to-wit: a 25 calibre automatic pistol, and in which information it is also alleged that Dorothy Williams was an employee of this Farmers and Merchants Bank. Now do you understand the nature of the charge? Do you understand what you are charged with? A Yes, sir,
“Q If you were to enter a plea of guilty to the charge, or if you were to enter a plea of not guilty and were tried before a jury and found guilty, the punishment that would be assessed for this offense would range from not less than five years in the penitentiary to life imprisonment, or the death penalty. Do you understand what the range of the punishment is that might be assessed in this case? A Yes, sir.
“Q Under the law you are entitled to consult with friends or an attorney and the Court will give you a reasonable time to talk with friends or to consult an attorney if you desire to do so. Do you wish time to talk with some friends or do you wish time to employ an attorney? A No, I don’t, Your Honor.
“Q If you are financially unable to employ an attorney, the Court will appoint an attorney for you who will advise with you and tell you what your rights are, and I will give such an attorney a reasonable time to talk with you and to prepare the defense of this case. Are you financially able to employ an attorney? Do you have the money to hire one ? A No, sir.
“Q Do you want the court to appoint one for you? A No.
“Q You have discussed this case with any of your friends or relatives? A Yes, I have.
“Q You have completed the junior year in high school? A Yes, sir.
“Q Where do you work? A Well, we have had a small business of our own. I have been driving a truck for my mother for about the last six years. Q Who owns the business? A My mother does. Q What type of business is it? Is it just a hauling business? A Yes, sir. Q You mean you hire the truck— A No, we have got a regular route that is supposed to be taken care of every day. Q What do you haul? A Trash and garbage. Q In doing that do you have to keep books and send bills out the first of each month? A Yes, sir. Q Who does that? A I have done some of it, and my mother. Q You have been able to keep books on this business of yours? A Yes, sir. Q Can you read and write? A Yes, sir.
“Q I will ask you again, you do not want to employ an attorney, is that correct? A That’s correct. Q And you do not want the Court to appoint one to represent you? A That’s correct. Q You want to now proceed with this matter without benefit of counsel, is that correct? A Yes, sir.
“Q Has the Prosecuting Attorney made any promise to you, if you were to plead guilty that any special treatment would be given you or any promise of immunity? A No, sir. Q Has the Prosecuting Attorney told you what he is going to recommend as punishment in this case? A No, sir. Q He has not indicated if you would enter a plea of guilty it would he easier on you? A No, sir.
“THE COURT: The Court finds that the defendant has intelligently waived the right to have counsel. Now the Prosecuting Attorney is going to read to you the information in this case which is the basis of this charge. I want you to pay careful attention to it.
“(Information read by Prosecuting Attorney Hoelscher.)
“THE COURT: Now Mr. Williams, you were taken before Judge Volkerding downstairs in this Courthouse building several days ago, were you, for a preliminary hearing? A I was taken before some Judge — ■ I don’t remember his name. Q And the ■charge was read to you, was it? A Yes, sir. Q And you were given the opportunity to consult with an attorney? A That’s right. Q And you were told by the Prosecuting Attorney that you were entitled to have a preliminary hearing or that if you desired you could waive a preliminary hearing, is that correct? A That’s correct.
“Q Were you also told that you could be brought up the next time that the Circuit Court was in session or that you could wait until the next term ? A Yes, sir. Q And did you then tell the Prosecuting Attorney you wanted to be brought up as soon as you could? A That’s right.
“Q You understood down there in the Magistrate Court that you had a right to have a hearing before anything was done about binding you over to this Court, is that correct? A That’s correct.
“THE COURT: Wilbert Benjamin Williams, you have heard the charge, what say you, guilty or not guilty?
“DEFENDANT: Guilty, Your Honor.
⅜ ⅝ ⅝ ⅝ ⅛ ⅜
“THE COURT: Now Mr. Williams, you have heard the statement made by the Prosecuting Attorney in which he set forth what he states the facts of this matter to be. Is his statement true? DEFENDANT WILLIAMS: Yes, it is, Your Honor.
“THE COURT: Is there any part of it that he was in error in as your recollection of the event would indicate? DEFENDANT WILLIAMS: Only the part where he said that they needed a screw driver to open up the vault door. It didn’t seem to me that a screw driver would be necessary to open the door because it wasn’t locked.,
“THE COURT: You think that the condition the door was when you left it, a person could have grabbed the handle and pulled it back open? DEFENDANT WILLIAMS: Yes, sir. THE COURT: And consequently they could have from the inside pushed it open ? DEFENDANT WILLIAMS: Yes.
“THE COURT: What about the gate between the vault door and — DEFENDANT WILLIAMS: I think the gate was locked. THE COURT: You all did lock-the gate? DEFENDANT WILLIAMS: Yes, sir.
“THE COURT: Are there any other facts or circumstances that you think might not have been completely accurate in his statement? DEFENDANT WILLIAMS: That’s all, Your Honor.
* * * * * *
“THE COURT: Mr. Williams, at this time the Court wants to accord you the right to make any statement you care to make, anything you might think would aid the Court in assessing a proper punishment in this case. You will have an opportunity now to make any statement you care to make to the Court that will be of some aid to me in assessing proper punishment.
“DEFENDANT WILLIAMS: Well, Your Honor, the only thing, the only reason I took part in this was because I thought maybe someday maybe my wife and family would get better things and things wouldn’t be so hard. That’s why I did it.
“THE COURT: How long had you planned this? DEFENDANT WILLIAMS : About a week.
“THE COURT: Had you been up to Wright City to look the place over? DEFENDANT WILLIAMS: Yes, sir.
“THE COURT: What else do you have to say? I want to give you every opportunity to state anything you want to state that you think is in your favor or that the court should consider. DEFENDANT WILLIAMS: That’s about it.
“THE COURT: No one talked you into this? You did it knowing what you were doing, is that correct? DEFENDANT WILLIAMS: Yes, Your Honor.
“THE COURT: And you say you thought by obtaining a substantial sum of money you might provide for emergencies in later life and an education for your children, is that correct? DEFENDANT WILLIAMS: That’s correct.
“THE COURT: Do you think that the recommendation that the Prosecuting Attorney makes is severe for this type of offense? DEFENDANT WILLIAMS: Yes, I do. I think it is pretty severe.
“THE COURT: What do you think should be the punishment to be assessed in a case where two men go in with deadly weapons and in the course of this incident confine 7 people into a vault ? What do you think is a fair punishment in a case like that, considering that the man has practically no record at all? DEFENDANT WILLIAMS: I couldn’t say what would be fair but we went into the Bank with no intentions in our mind to harm anyone.
“THE COURT: What if they wouldn’t have done what you told them to do? What if one had rushed at you and tried to wrestle the gun from you? Would you have used it? DEFENDANT WILLIAMS : It wasn’t my intentions. THE COURT: Why did you load them then ? DEFENDANT WILLIAMS: I don’t know, Your Honor.
“THE COURT: Do you have anything further you care to state to the Court? DEFENDANT WILLIAMS: I don’t think so.
******
“THE COURT: Do you know of any legal reason or cause why judgment should not be pronounced against you in this case ? If so, make it known at this time. DEFENDANT WILLIAMS: No, Your Hon- or.
“THE COURT: What I have to say preceding sentence in this case is equally applicable to the other case. You have two young men here who are well educated, especially in view of the unfortunate limitations that society has placed on their race. The Court can see in the Courtroom quite a number of people who the Court knows are friends or relatives and families of these two boys. They are fine looking people, intelligent and moral looking people, which in addition to these two boys as they have been brought before the bench does indicate an unusually fine background. The failure of these boys to attempt to escape by force likewise is in their favor. Their cooperation with the officers following their apprehension is in their favor. They evidence to the Court a sincere regret for their present situation, and I think to some degree a sincere regret that they ever did it but their regret is to some degree that they have been caught and they must be punished.
“The range of the punishment in a case such as this — the Legislature has regarded it as most serious. This is one of the few cases where the death penalty is made available as punishment, life imprisonment, 75, 80, 85 years in the Penitentiary. The range is great and the maximum punishment is permitted under the constitution and the law and has been for a long time because, and properly so, it is a very serious offense. The theft of the money in so far as the $21,797.50 is concerned, that is not what constitutes the degree of robbery under which these men are charged. It is the offense of robbery with a deadly weapon. Had they only taken a dollar, one dollar, in this robbery, they would have been guilty of identically the same offense as they are guilty of today with $21,000 plus. Consequently, the Legislature hasn’t regarded the amount of money taken as the basis for the amount of punishment in this particular instance, but it is the fact that human life is endangered that has made this the serious charge that it is.
“In this particular case it is not one human life or two or three, it is seven. If these men had intended only to use these firearms to frighten someone to get money with an honest intention in their mind that they would never hurt anyone, they would go as far as they could with fright and threats but never actually hit anyone as one of them said, or hurt anyone, then they could have well taken empty shotguns so that they would have been sure, in the excitement of a struggle while they were in there, either by accident or deliberately in the excitement no one would have been hurt. Yet they loaded these firearms. I doubt very much if they said to themselves, ‘if they come toward me, I am going to pull the trigger,’ but they did put into their hands instruments, had they pulled the trigger one or more human lives could have been lost.
“The Court feels that except for the good record, and I am completely ignoring this petty larceny charge in Fayette, except for the good records in both these cases, and an apparently unusually high moral level background, for a charge of this nature the Court should never consider a day under 40 years in the penitentiary. The Prosecuting Attorney in this case has made his investigation, he has consulted with the officers, he is more familiar with the facts and the background in the instance of this case. The Court has been a Prosecuting Attorney in the past and I know that a thorough investigation causes a Prosecuting Attorney to come into possession of a view of a case better than a mere recitation of an hour or an hour and a half such as we have had this morning and for that reason I have great respect for the recommendation of any Prosecuting Attorney that appears before me.
“I do think in view of this situation, in view of the seven people in that Bank that were subjected to being shot to death or suffocating to death — according to the statement of the Prosecuting Attorney they had to use this screw driver to get out — I just can’t help but believe if it was only a matter of pushing the door open, they would have done it.
“Therefore, it is the judgment and sentence of this Court, Wilbert Benjamin Williams, that you serve a sentence of twenty-five (25) years in the Missouri State Penitentiary.”

The sentence and judgment contains the following recitals: “ * * * comes Wilbert Benjamin Williams, the defendant herein, in person in the custody of the sheriff of this county and in open court but without counsel, the Court having, prior to defendant’s plea of guilty heretofore entered, given defendant opportunity and reasonable time to talk with a friend and an attorney, and having informed defendant of his right to counsel and explained wherein the exercise of said right might be of benefit to defendant, and having found that defendant was mentally able and was sufficiently informed to decide his need for counsel, and the Court having offered to appoint counsel for defendant to conduct his defense, but defendant having waived such right to counsel; and the court having found that failure to appoint counsel could not result in injustice to defendant *

Criminal Rule 29.01(a), V.A.M.R. provides in part: “In every criminal prosecution in any court of this State, the accused shall have the right to appear and defend the same in person and by counsel. If any person charged with the commission of a felony appears upon arraignment without counsel, it shall be the duty of the court to advise him of his right to counsel, and of the willingness of the court to appoint counsel to represent him if he is unable to employ counsel. If the defendant so requests, and if it appears from a showing of indigency that he is unable to employ counsel, it shall be the duty of the court to appoint counsel to represent him. If, after being informed as to his rights, the defendant indicates his desire to proceed without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel unless it appears to the court that, because of the gravity of the offense charged and other circumstances affecting the defendant, the failure to appoint counsel may result in injustice to the defendant.”

The excerpts from the transcript of proceedings show compliance with the Rule in all respects. The accused was accorded the right to appear in person and by counsel. The court advised the accused of his right to counsel and of the court’s willingness to appoint counsel. The court offered to appoint counsel and the accused declined the offer. The accused did not request counsel and indicated his desire to proceed without counsel. The court made a determination from the facts contained in the transcript that the accused intelligently waived his right to counsel. In addition, the court considered the gravity of the offense and other circumstances affecting him, including his background, moral level, family, friends, understanding, cooperation, and so on. Finally, the court made a determination that the accused could proceed without counsel and without injustice to himself.

Appellant’s six reasons fall into two categories: 1. That he was deprived of his constitutional rights because he did not intelligently waive counsel, which, under the circumstances, the court should have appointed in spite of defendant’s desires and waiver; and 2. That the plea of guilty was not voluntary because of defendant’s ignorance and cannot, therefore, support a conviction, and entry of the guilty plea violated his right against self-incrimination.

The transcript of proceedings shows that the accused had opportunity to consult with family and friends and that such persons were present at the proceedings. It is also shown that the accused was twenty-one years old, married, and father of three children; that he had completed the junior or eleventh year of school, could read and write, was engaged in a trash business serving regular customers in which he drove a truck, kept books, and sent out bills; that he understood the nature of the charge and punishment that could be assessed; that the prosecuting attorney had made no promises or inducements; that he understood his right to have had a preliminary hearing and to be there assisted by counsel, all of which he waived, and that he understood the effect and consequence of the waiver.

Under these circumstances, State v. McDonald, Mo., 343 S.W.2d 68, is directly in point. That also was a proceeding under Criminal Rule 27.26, V.A.M.R. to vacate judgment and sentence of twenty-five years’ imprisonment upon a plea of guilty to robbery in the first degree entered without assistance of counsel. The defendant was 22 years of age, single, lived with his sister, had gone to the 6th grade in school, and had talked to his mother and stepfather before pleading guilty. The contention there was that the court was required to appoint counsel whether requested to do so or not. The court reviewed a number of Missouri and federal authorities and among them were Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, cited by appellant here. The court said, 343 S.W.2d l.c. 72[5]: “ * * * There was and could have been no fundamental unfairness under these circumstances. And even now defendant does not state that he was not guilty of the offense charged, or that he was not offered counsel or that he then desired counsel. While he states now that a request for counsel was not and is not necessary, it is clear that the whole matter of request or no request is immaterial if a defendant is offered counsel and declines the offer. This defendant was offered full opportunity to stand trial, with counsel, and elected not to do so. There is certainly no such showing here of ignorance, feeble-mindedness or illiteracy as to require the mandatory appointment of counsel (Powell, supra.) The files and records show the contrary. The facts of this case are in many respects like those in State v. Glenn, Mo., 317 S.W.2d 403, where the motion was summarily disposed of and the judgment affirmed.”

Appellant has directed our attention to three other federal cases: Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The first dealt with a situation in which under Alabama law certain defenses had to be made at arraignment or were lost to an accused. Under those circumstances and where it appeared that the accused had such a special defense, it was held that the accused must have counsel at arraignment. We said in State v. Barton, Mo., 379 S.W.2d 562, 563 [1]: “As to the first claim, failure of the court to appoint counsel, the transcription of the proceedings upon his plea of guilty reveals that the court plainly and fully explained to Barton the charge, told him that he was entitled to a trial by a jury and, despite Barton’s interruption ‘I’m guilty, Your Honor,’ the court proceeded to tell him that ‘(y)ou are also entitled to have the services of an attorney to advise with you and represent you before you take any action in this case, and you are not required to take any action today.’ * * * Repeatedly the appellant declined the offer of an attorney or a jury trial and, despite some illiteracy, the appellant fully understood the nature of the charge and the proceedings and advisedly waived the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. [People of State of] California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Annotation 9 L.Ed.2d 1260, 1262, ‘It may be implied from the Supreme Court’s opinions that an accused in a state prosecution may waive his right under the Fourteenth Amendment to be represented by counsel, provided that such waiver is intelligently and u'nder-standingly made.’ ” Accordingly, we rule appellant’s complaints as to absence of counsel against him.

As to his claim that his guilty plea was involuntary, appellant states the principle involved in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473, 478: “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” The rules for determining the voluntariness of a guilty plea are set out in State v. Williams, Mo., 361 S.W.2d 772, 775[3, 4]: “We have said: ‘The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea. The law favors a trial on its merits.’ State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; * * *. A leading Missouri case is State v. Stephens, 71 Mo. 535, 536, in which it is said: ‘Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like.’ Thereafter in State v. Dale, 282 Mo. 663, 669, 222 S.W. 763, 764, this Court said: ‘It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled, or under a misapprehension, at the time he entered his plea of guilty?”’ In applying these rules we refer again to the transcript of proceedings, and it there appears that the trial court proceeded with care to determine the understanding and intelligence of the accused, and his knowledge of how his plea of guilty would affect him. Appellant suggests that his plea was involuntary because it was induced and coerced by the prosecuting attorney, but the transcript shows denials by the accused of the existence of any such persuasion. The transcript shows that the defendant was in no way misled; nor was he under any misapprehension at the time he entered his plea of guilty, and we conclude that his plea was voluntary and not in violation of his constitutional rights. State v. Richardson, Mo., 347 S.W.2d 165, 173[11].

We said in State v. King, Mo., 380 S.W.2d 370, 373 [1-6] : “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.” In this case the files and records, which include the transcript prepared and filed as required by Criminal Rule 29.01(b), refute all issues presented by appellant’s motion, and we conclude that the court properly determined the issues from the record and files without a hearing.

The order of the court is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


source: Caselaw Access Project

author: EAGER, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Rodney Glen GARRETT, Appellant.
    No. 50782.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Asst. Atty. Gen., Clayton, for respondent.
    William J. Shaw, Gene McNary, Clayton, for appellant.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of first degree robbery, committed with a dangerous and deadly weapon. The principal, and we may say only, defense was that defendant was not guilty by reason of “mental disease or defect.” Sections 552.010-552.040, RSMo, Laws 1963, p. 674 et seq. V.A.M.S. Defendant’s appointed counsel requested and defendant was given a psychiatric examination prior to arraignment; he was also examined subsequently. Following the conviction and a finding by the Court of a prior felony, defendant was sentenced to the Department of Corrections for a term of ninety-nine years. After a detailed motion for new trial was overruled, this appeal was taken. Defendant was and is most ably represented by the Public Defender of St. Louis County.

On the afternoon of April 30, 1963, defendant and a boy named “Kenny” entered the “Jam Inn” restaurant and 3.2 beer place on Highway 66 in St. Louis County. Defendant ordered and drank a beer; the only waitress on duty, Evelyn Jean Brown, had seen him in the place previously, but did not actually know him. A little later he came back alone and parked in front of the place; he ordered and drank another beer and waited until the other one or two customers had gone. As the waitress was washing dishes, he approached her from the rear with an open pocketknife in his hand, grabbed her around the neck with one arm, cut her on the right side of the face and on the throat and, after she fell to the floor, stabbed her in the back at least seven times. When the knife was found later the blade which had been used was bent. In defendant’s written and oral confessions, admitted without objection, he stated that he told the girl he wanted the money and not to scream, that she started to kick and scream, and that he got excited and “started striking her.” In any event, he then dragged her to the rear of the place, took the paper money from the cash register, tore the telephone receiver from the instrument and laid it on the bar. He then moved the girl, threatening to kill her, into the men’s room, where he choked her until she blacked out. Thereupon, he left and drove away. The girl regained consciousness, got up and ran to a motel apartment next door where she lives with her parents. She was bleeding profusely; the police came and she described her assailant before being taken to a hospital. Fifty-one stitches were required to close the cuts in her face and neck, and she remained in the hospital for eight days, during which time a lung collapsed. There would seem to be no serious residual damage. From the 'description given, the police very promptly went out and picked up the defendant (whom one or more of them knew) in the process of using the telephone in a bar four or five miles away. One $20 bill and fifteen one dollar bills were found on him — with a red, sticky substance on them. Both in oral statements and in a signed confession taken on the same evening, defendant admitted substantially all the details of the offense.

At the trial, and to some extent here, counsel rely on certain remarks and circumstances which are said to indicate some form of insanity, per se. We mention some of these, but they were matters solely for the jury on the weight of the evidence, and there is and can be no contention that the crime was not sufficiently proven, or that the existence of a “mental disease or defect” was not a question for the jury. Principally, these things are: that the crime was committed in a place where defendant was known and where his father was known; that he made a remark to Miss Brown that he was “used to doing this”; that he inquired of her where the phone was and where the knife was that he had dropped; that he apparently tried to get her outside the place after cutting and stabbing her; that several persons said that he had been drinking but that he did not seem to be intoxicated; that when arrested at the telephone, he said, — “I’m glad you caught me or you’d find her in the river, too”; that three other knives were found in his car; that he told one or more officers that he committed the offense because he needed the money, that he did not know why he had cut the girl, and that he had a sudden impulse to hurt someone. However, we note also that in defendant’s signed confession he stated that he started drinking that morning at about 7:30, “mostly whisky at different places,” that he committed the offense on “the spur of the moment,” and that he then went home, washed, and changed his shirt before going out again, because it was bloody and torn. In an oral statement to police he had said that he waited until two customers left to rob the girl. None of these circumstances or statements can be decisive of the questions we have here.

Dr. Anton F. Heusler, a physician specializing in psychiatry, had examined defendant about three months prior to the trial; he had also read the various depositions showing the circumstances of the offense, and had received and studied the psychological report of a Dr. Ossario who had also examined the defendant. Dr. Ossario had reported that defendant had an oral IQ of 73, a performance IQ of 81, a “full scale” IQ of 75, and that defendant’s general capacity was in the “dull normal” range. Dr. Heusler determined that defendant had a personality disorder, meaning that he was a sociopath of the anti-social type and that his mentality was that of a borderline defective. This witness defined a socio-pathic personality as one with a deviation which makes it “extremely difficult for him to conform to the social culture in which he lives”; he also stated that when a mental deficiency is added it would be more difficult for the individual to so conform to the social culture or to law. Dr. Heusler testified that, considering everything, defendant had a mental deficiency and that he probably could not conform his conduct to the requirements of the law; that in arriving at this conclusion he considered both the sociopathic personality and the mental deficiency, the latter of which was also in his opinion a mental disorder. On cross-examination he discussed the ordinary characteristics of sociopaths.

In rebuttal the State produced Dr. Paul T. Hartman, a physician also specializing in neurology and psychiatry, who had examined defendant by appointment of the Court. This witness had also read the depositions and had seen Dr. Ossario’s report. His stated conclusion was that the defendant had no mental illness or defect which would prevent him from conforming his conduct to the requirement of the law or prevent him from appreciating the nature, quality or wrongfulness of his conduct. He testified that defendant was within the limits of normal intelligence; that he did have a sociopathic personality, meaning that he tended to do what he wanted to do and not to conform, and that he had also an inability to profit from past experiences; that in his opinion this was not a mental disease or defect.

We quote here the pertinent portions of the mental responsibility act, Laws 1963, p. 674 et seq.

Section 552.010. “The terms ‘mental disease or defect’ include congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. * * * ”

Section 552.030. “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. # * *

“3. Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible

“(1) To prove that the defendant did or did not have a state of mind which is an element of the offense; or

“(2) For the purpose of determining whether or not the defendant, if found guilty of a capital offense, shall be sentenced to death or life imprisonment. * * *

“5. All persons are presumed to be free of mental disease or defect excluding responsibility for their conduct, whether or not previously adjudicated in this or any other state to be or to have been insane, drunkards, drug addicts, sexual or social psychopaths, or otherwise mentally ill, incompetent, deranged or impaired. The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. But in the absence of such evidence the presumption shall be conclusive. Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the jury. The jury shall be instructed as to the existence and nature of such presumption when requested by the state and, where the issue of such responsibility is one for the jury to decide, the jury shall be told that the burden rests upon the accused to show by a preponderance or greater weight of the credible evidence that the defendant was suffering from a mental disease or defect excluding responsibility at the time of the conduct charged against him.

“6. When the defendant is acquitted on the ground of mental disease or defect excluding responsibility, the verdict and the judgment shall so state.”

Section 552.040. “1. When a defendant is acquitted on the ground of mental disease or defect excluding responsibility the court shall order such person to be committed to the director of the division of mental diseases for custody, care and treatment in a state mental hospital. No person shall be released from such commitment until it is determined through the procedures provided in this section that he does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.”

Instruction No. 2 was a detailed instruction on the defense of mental disease or defect. Thereby the jury was told, in substance, that if it found beyond a reasonable doubt that defendant committed the offense in question but that he, as the result of a mental disease or defect “did not know the nature, quality or wrongfulness of his conduct or he was incapable of conforming his conduct to the requirements of the law,” then it should return a verdict of “Not Guilty by Reason of Mental Disease or Defect Excluding Responsibility.” In this instruction the jury was told that “mental disease or defect” did not include an abnormality “manifested only by repeated criminal or otherwise anti-social conduct,” and also of the presumption of freedom from mental disease or defect expressly provided by § 552.030(5). If we understand the objection now made to the instruction, it is: that the defense of mental disease or defect was based upon a combination of defendant’s sociopathic personality (excluded by the statute as a defense, when existing alone) and the existence of a borderline intellect, which, together, were said by Dr. Heusler to constitute mental disease or defect rendering defendant probably unable to conform his conduct to the requirements of law; and that the instruction, by referring in several places to “a” mental disease or defect, limited the jury’s finding to one of these and not to the combination which in fact constituted the causative defect. This is a rather hypertechnical point. The statute, § 552.030, uses the term “mental disease or defect” in a generalized sense which, as we understand, merely means a mind sufficiently disordered to cause the results indicated (with the specific exceptions noted). The term was not intended to designate any specific form or forms or medical classifications of mental disease. The complaint made seems to rest solely in an objection to the use of the article “a” before the term “mental disease or defect.” No ordinarily intelligent jury would construe the term as used so narrowly, but would consider “a mental disease or defect” as embracing all the symptoms and classifications which might enter into the aggregate mental condition. We so hold. We are further corroborated in this view by the fact that the jury was also told (after noting the exception of “repeated criminal or otherwise anti-social conduct”) that the phrase mental disease or defect: “means and includes any mental disease or defect regardless of its medical label or source, whether it was present at birth or developed later as a result of injury or physical or mental disease, or whether it is capable of improving or deteriorating. In determining whether or not the defendant had a mental disease or defect at the time of the offense charged against him, the jury may take into consideration all of the facts, circumstances and opinions of lay and expert witnesses given in evidence.” We do not find the instruction misleading or confusing and the claim of error is denied.

In another point it is insisted that the Court erred in refusing to give the following instruction “B”: “You are further instructed that if you return a verdict of ‘Not Guilty by Reason of Mental Disease or Defect Excluding Responsibility’ it would then become the duty of this Court to order the defendant committed to the director of the division of mental diseases of this state for custody, care and treatment in a state mental institution. The defendant could be released from such commitment only if and when it was determined that he did not then have and in the reasonable future was not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law. The defendant could be released after such a determination only upon order of this Court after notice to the head of the hospital, the director of the division of mental disease, the Prosecuting Attorney of the County of St. Louis, and the defendant, and after a hearing if one were requested.” The instruction generally follows § 552.040 providing the procedures to be followed after a defendant is acquitted because of mental incompetency. Counsel say, in substance, that in such event a defendant is automatically committed to a mental institution and that the jury is not fully informed unless it is told that he will not be turned loose on the streets. The cases cited for the proposition are all from the Court of Appeals for the District of Columbia where the Durham rule on “insanity” originated. (Durham v. United States, 99 U.S.App.D.C. 132, 237 F.2d 760.) Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725; McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847; Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398. In Lyles, the leading case of the group, there were several opinions with somewhat confusing results. Apparently six judges held that such an instruction should be given, and three that it should not. There, a brief oral instruction was given which was found not to be entirely correct but not reversibly erroneous. The majority held that while a jury ordinarily has no concern with the consequences of its verdict, a verdict of not guilty by reason of mental disease or defect is not generally understood and that an exception should be made. Three judges disagreed with that view in a vigorous opinion concurring in the result. Therein they called attention to the fact that juries (in federal courts) are never instructed as to the extent of punishment or the possibility of probation; further, it was said: “The issue of insanity, fairly raised, does no more than present another factual question to the jury: whether the defendant was mentally responsible when the criminal act was done. That issue also should be determined on the basis of the evidence only and, in deciding it, the jury should not be influenced by a consideration of the result of an acquittal by reason of insanity; that is an extraneous consideration wholly unconnected with the evidence from which the jury must reach a determination of the factual issue raised concerning the defendant’s mental condition.”

In the later case, McDonald v. United States, 312 F.2d 847, the Court remained divided on this question. In the earlier case, Taylor v. United States, 222 F.2d 398, in holding that such an instruction should be given the Court noted that while it would have no “theoretical” bearing on the jury’s verdict, it might have a “practical bearing ” The same practical consideration is noted in an article appearing in Temple Law Quarterly, Vol. 29, p. 247, not cited by counsel, in which the author suggests that a provision requiring such an instruction be included in the Model Penal Code.

Counsel for defendant also rely upon the able and extensive Treatise on our new Mental Responsibility Law appearing in the December 1963 issue of the Missouri Bar Journal (Mr. Orville Richardson, Mr. Daniel P. Reardon, Jr., and Professor Joseph J. Simeone). Noting that confinement is automatic upon a finding of mental irresponsibility, the authors strongly indicate that a jury should be so instructed, and that the State’s attorney should not be permitted to argue that “he might be out in a few months.” (Loc. cit. 721.) The article contains a suggested instruction, and cites most of the authorities pro and con. This article, generally, is worthy of the close study of those who are in contact with this new and little understood law.

In Pope v. United States (CA5), 298 F.2d 507, a similar instruction was refused. The Court of Appeals concurred. In so ruling the Court noted that the disposition of a defendant was no more a concern of the jury in cases involving insanity than it is in ordinary findings of guilty or not guilty, with reference to the sentence which the Court will impose, or the likelihood of probation or parole. The Court thus said, loc. cit. 508, that: “ * * * matters relating to disposition of the defendant, tend to draw the attention of the jury away from their chief function as sole judges of the facts, open the door to compromise verdicts and to confuse the issue or issues to be decided. In a case of this nature what they were to decide was whether the defendant was guilty or not.”

In this connection we might ask if it would be deemed appropriate for a Missouri trial court, in a “Second Offender” case, to tell the jury (passing only upon guilt or innocence) what punishment it would assess if the jury found the defendant guilty? Obviously, the answer is that it would not be proper, for this would very definitely tend to influence the jury wholly outside the evidence, in arriving at its verdict.

In the recent case of State v. Park, 159 Me. 328, 193 A.2d 1, the Court affirmed the refusal of the trial court to give a similar instruction in a murder case, under very similar statutes. The Court said there, 193 A.2d, loc. cit. 5: “It has long been the settled practice in our State that the function of the jury is to find the facts and to apply the law as given by the Court to the facts in reaching their verdict. Punishment, or whatever may transpire after the verdict, is not the concern of the jury.

“No exception to this general rule is found in our cases where the plea has been not guilty by reason of insanity. There was therefore no error on the part of the presiding Justice in refusing to inform the jury of the consequences of a verdict of not guilty by reason of insanity.

“We are not convinced that there is any sound reason for altering our practice by reason of the adoption of the 1961 statute relating to mental responsibility for criminal conduct. We are aware that in cases arising on appeal from the Courts of the District of Columbia under the Durham Rule, so-called, which our 1961 Act closely follows, the point has been otherwise decided. Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725; Catlin v. United States, 102 U.S.App.D.C. 127, 251 F.2d 368; McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847. The result we reach is found in Pope v. United States, 298 F.2d 507 (C.A. 5th), involving an insanity plea but not the Durham Rule. The respondent takes nothing from the exception.” See also State v. White, 60 Wash.2d 551, 374 P.2d 942 (decided under the M’Naghten rule on insanity but applicable in principle) ; and, on differing facts but bearing some analogy : State v. Eisenstein, 72 Ariz. 320, 235 P.2d 1011, 1022-1033; Draper v. Denno, D.C.N.Y., 113 F.Supp. 290; State v. Daley, 54 Or. 514, 103 P. 502, 503, and, on rehearing, 54 Or. 514, 104 P. 1. In State v. McGee, 212 Mo. 95, 110 S.W. 699, the jury was instructed that if any defendant under the age of eighteen years was convicted he would be sent to the training school for boys and not to the j ail or penitentiary. On appeal the Court said: “ * * * this part of the instruction was something with which the jury had nothing whatever to do, *

Such an instruction has no legitimate bearing on any fact issue which the jury must decide; it is entirely clear that it might, if given, tend to influence the jury to find the existence of mental irresponsibility by deviating from the strict confines of the evidence on the subject of mental disorder. The weakness of the whole contention is rather clearly shown in the opinion which really started the controversy (Taylor, supra) where the Court said that, although such an instruction would have no “theoretical bearing” on the case, it might have a very “practical bearing”; and, also, in Missouri Bar Journal, December 1963, loc. cit. 733, where the authors state (quoting) that such instruction “may be an enormous influence on the jury’s deliberations * * .” No doubt it would be, but at the same time it would divert the jury from the real merits of the insanity issue by the introduction of this extraneous consideration, which actually is nothing less than an invitation for the jury to find the defendant mentally irresponsible because he would then be confined anyway. Moreover, the legislature went into considerable detail in our act in providing that the jury should be instructed on the presumption of freedom from mental disease or defect; it did not suggest the giving of an instruction concerning the defendant’s commitment under § 552.040. The case of State v. Johnson, Mo., 267 S.W.2d 642, 44 A.L.R.2d 973, illustrates the type of controversies which may arise in final arguments and perhaps through converse instructions if this subject is once introduced. We hold that Instruction B was properly refused.

Defendant also claims error in the refusal of his Instruction “A” which required the jury to find defendant not guilty if, at the time of the offense, he “had a mental disease or defect sufficient to deprive him of ability to act willfully or felo-niously * * Counsel substantially concede that this instruction was urged with the view of having the jury return a verdict of not guilty without a finding of mental disease, thus freeing the defendant entirely; in other words, — the desire was to have the jury find just enough “insanity” to destroy any felonious intent, but not enough to constitute “mental disease or defect” excluding responsibility which would require such a statement in the verdict and a resulting commitment. Section 552.030(6). This is an attempt to play somewhat “fast and loose” with the statute. One essential purpose of the present statutes, as well as of the former “right from wrong” theory of insanity, is and was to determine whether the defendant did or did not have sufficient mentality to realize and intend an unlawful act. Under Instruction No. 2 it was required that defendant be exonerated, “by reason of mental disease or defect excluding responsibility” if as a result thereof “he did not know the nature, quality or wrongfulness of his conduct * * (Italics ours.) That instruction was certainly sufficient to submit for all legitimate purposes the element of acting “wilfully or feloniously,” and no further specific instruction was required or proper. How, may we ask, would a jury ever differentiate between a condition where the defendant could merely entertain no wilful or felonious intent but have no mental disease or disorder sufficient to prevent him from knowing the “nature, quality or wrongfulness of his conduct,” and one where by reason of mental disease or defect he could not have this knowledge ? And where would the burden of proof lie on such a defense? For a discussion of these rather intricate distinctions, see Weihofen, Mental Disorder as a Criminal Defense, 1954, loe. cit. 182 et seq.; Yale Law Journal, Vol. 56, p. 959. It is true that § 552.030(3) provides that evidence of mental disease or defect shall be admissible to prove that the defendant did or did not have a state of mind which is an element of the offense; such evidence was admitted here, and the “state of mind” was adequately covered in Instruction No. 2. Some of the authors of treatises seem to indicate that intoxication should constitute a sufficient mental disorder to render one incapable of entertaining such mental requirements as deliberation or premeditation, or even a specific intent. Missouri has for generations firmly and specifically rejected that doctrine. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273; State v. Comer, 296 Mo. 1, 247 S.W. 179, 182.

In State v. Holloway, 156 Mo. 222, 56 S.W. 734, a defense of insanity was made in a first degree murder case. The defendant requested an instruction stating that although the defendant might have had sufficient mind to intend the murder, still, if he did not have sufficient mentality to “coolly deliberate” the killing, then he was guilty only of murder in the second degree. The instruction was refused. On appeal the Court said, in part, loe. cit. 737: “No error occurred in this. If sane, defendant was indubitably guilty of murder in the first degree; if insane, of nothing. No halfway house exists, in a case of this sort, between murder in the first and any minor degree of that crime. Defendant, if sane, ‘could coolly deliberate said murder’; if insane, he could neither deliberate nor premeditate, and consequently was guiltless of the crime charged, and of any degree of that crime; and defendant’s counsel, in their zeal for their client, do not insist that the crime so long delayed was done in hot blood.” That opinion has been mentioned several times as listing Missouri among those states refusing to adopt the theory of “Partial Responsibility” advanced in Instruction A in the present case. See also, as generally to the same effect, State v. Barbata, 336 Mo. 362, 80 S.W.2d 865, 868(1, 2); Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382. We adhere to that ruling, and we do not find that the adoption of the present Mental Responsibility Law requires or indicates the necessity of any change. Actually, the giving of an instruction of this type would permit the jury to evade the real intent and purpose of § 552.030 and § 552.-040 by acquitting the defendant completely (without a commitment) on a finding of a lesser degree of “mental disease or defect” than contemplated in the act, although the requirement of a willful and felonious intent had been fully submitted in the general instruction on mental disease. The word “willfully” actually means only intentionally (State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 321), and the word “feloniously,” generally used to classify offenses, is not actually a distinct element of a crime. State v. Barton, 142 Mo. 450, 44 S.W. 239, 240. Such an instruction as “A” would merely go to the existence of a general criminal intent which is an element of every crime (Schein v. Gallivan, 321 Mo. 268, 10 S.W.2d 521) and which was fully covered in Instruction No. 2. Under this point counsel suggest the possible unconstitutionality of the new act if, in fact, it provides no method for finding a defendant not guilty (without a commitment) who may have recovered from a preexisting mental disease since the time of the crime. We find nothing in the point on its merits, but it will suffice to say that no such question was properly raised or preserved. In fact, we have given the defendant the benefit of every doubt in considering the present point on the merits, in view of the most casual way in which it was raised in the motion for new trial. The refusal of Instruction A was proper.

Defendant urges that the procedure under our Second Offender Act, § 556.280, permitting the Court to hear and determine the question of prior felonies, is violative of his right to a jury trial on factual issues under Art. 1, § 18(a), Mo.Const. V.A.M.S. and of the Sixth Amendment to the United States Constitution. No such objection was made when the evidence was offered out of the presence of the jury. This objection, not having been raised at the earliest opportunity, was waived. State v. Barnes, Mo., 345 S.W.2d 130, 133. That statute has, however, been upheld as against sundry constitutional objections in opinions which definitely preclude the present contention. State v. Williams, Mo., 343 S.W.2d 58; State v. Wolfe, Mo., 343 S.W.2d 10, cert. denied 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed.2d 1246, cert. denied 368 U.S. 907, 82 S.Ct. 188, 7 L.Ed.2d 101; State v. Morton, Mo., 338 S.W.2d 858; State v. Griffin, Mo., 339 S.W.2d 803, cert. denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849; State v. Brownridge, Mo., 353 S.W.2d 715.

Counsel included in their brief a point to the effect that the document offered to show defendant’s imprisonment in Indiana was inadmissible because not properly authenticated. However, in the oral argument counsel stated, with reference to that point: “I don’t think our position is well taken,” so we pass the point.

Complaint is made that the Court erred in giving Instruction No. 5, to the effect intoxication should not be considered as “constituting any excuse, mitigation or extenuation of the alleged offense,” if the jury should find that defendant was intoxicated at the time. The complaints are that the evidence did not justify such an instruction, that it constituted a comment on the evidence, and that it was “grossly prejudicial” to defendant’s theory of mental illness. It is true that some of the police officers testified that defendant had been drinking, but that he did not appear to be intoxicated; on the other hand, defendant’s confession (to which no objection was made) stated that he “started drinking at about 7:30 a. m. on the 30th of April and continued drinking until this incident occurred at about 4:45 p. m. * * * I drank mostly whiskey at different places * * There are various degrees of intoxication, as almost everyone knows, and no degree of intoxication will excuse the commission of a crime; we rule that such an instruction is justified where it may fairly be inferred from the evidence that the defendant was under the influence of liquor to such an extent that his judgment and actions were substantially affected thereby. From defendant’s own confession such was a fair inference here, regardless of his appearance to some of the witnesses. And the jury was entitled to consider his actions from this standpoint, as well as from the standpoint of mental disease. The instruction being proper, it is of no consequence that it may have been prejudicial to defendant’s theory of “mental illness”; and it was not an improper comment on the evidence. The case of State v. Church, 199 Mo. 605, 98 S.W. 16, is cited. There it appeared that the defendant in a murder prosecution had drunk “a lot of blackberry wine.” The instruction there referred to “drunkenness.” The defense proffered was insanity. The instruction was held to be erroneous but not prejudicial; the Court there said, loe. cit. 24: “If the defendant was not drunk, how could he be prejudiced by instructing the jury that drunkenness is no excuse for crime, etc. ? There is no contention that anything was an excuse for the crime in this case other than the insanity of the defendant, hence we are unable to conceive how he could have been prejudiced by this instruction.” If the Court intended in that opinion to hold that no instruction on intoxication should be given unless there is specific evidence, in so many words, that a witness was intoxicated or drunk, then that part of the opinion should no longer be followed. See generally: State v. Pinski, Mo., 163 S.W.2d 785; State v. Woodward, 191 Mo. 617, 90 S.W. 90; State v. Deviney, Mo., 278 S.W. 726. In the latter case the evidence was that defendant had been “drinking some” on the evening of the robbery; an instruction on intoxication was given, although the defendant had offered no such defense. The giving of the instruction was held proper. And see, particularly, State v. Bartley, 337 Mo. 229, 84 S.W.2d 637. There was no error in giving Instruction No. 5 in our case.

Counsel complain at some length concerning the sustaining of objections to several hypothetical questions asked Dr. Heusler, defendant’s psychiatrist. They also complain of certain comments made by the court during the course of that questioning. For the purpose of this opinion it will suffice to say that we have examined all of the questions, all of the objections and all of the comments. It would be impracticable to relate and discuss all of them here. Some of the objections which were sustained were probably insufficient, as counsel contend. However, the substance of the evidence sought in all of the questions was subsequently received, and we hold that no prejudice resulted, even if some of the rulings were erroneous. State v. Hacker, Mo., 291 S.W.2d 155; State v. Shipley, Mo., 232 S.W.2d 515, 518. The comments of the trial court were not prejudicial; in fact, the court conducted itself in a very commendable manner throughout the trial. The contention is denied.

The judgment of the trial court is affirmed.

All of the Judges concur.

      . The parties here agree that sociopathy alone is included -within the exception (§ 552.010) described as an “abnormality manifested only by repeated criminal or otherwise anti-social conduct, ⅜ * ⅜ ” although this witness classified the condition as a mental disorder.


text:
    STATE of Missouri, Respondent, v. Virgil Major WYNN, Appellant.
    No. 50917.
    Supreme Court of Missouri, Division No. 1.
    May 10, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Brick P. Storts, III, Asst. Atty. Gen., for respondent.
    Lewis E. Pierce, Robert G. Duncan, Simon & Pierce, Kansas City, for appellant.
   WALTER H. BOHLING, Special Commissioner.

Virgil Major Wynn was found guilty of stealing property of a value of more than $50; to-wit: a television set of the value of $150. §§ 560.156 and 560.161; Laws 1955, p. 507; Laws 1957, p. 376. Statutory references are to RSMo 1959 and V.A.M.S. unless otherwise indicated. The charge was under the Habitual Criminal Act and, upon the jury’s verdict of guilty, the trial judge sentenced defendant to ten years’ imprisonment. Judgment accordingly.

A preponderance of the evidence established defendant’s guilt. There is no contention the State failed to make a case or occasion to detail the testimony on the merits.

Defendant contends the Court erred in assessing his punishment under the Habitual Criminal Act on the ground the evidence did not establish defendant’s final conviction of the prior offense and, therefore, his punishment for the offense on trial should have been submitted to the jury.

The Habitual Criminal Act (Laws 1959, S.B. No. 117, § 556.280), briefly stated and so far as pertinent here, is to the effect that any person convicted of an offense punishable by imprisonment in the penitentiary and sentenced and imprisoned in the penitentiary therefor who is charged with having thereafter committed a felony shall, if convicted, receive such punishment within the law, for the subsequent offense as the trial judge determines. Evidence of the prior conviction, sentence and imprisonment shall be heard and determined by the trial judge out of the hearing of the jury prior to the submission of defendant’s guilt to the jury, and the court shall enter its findings thereon. Said Act does not apply so long as the prior conviction may be pending on appeal.

Defendant took the stand. He admitted he had been convicted of rape in 1961 (State v. Wynn, Mo., 357 S.W.2d 936), had been sentenced to two years’ imprisonment in the penitentiary, and had been conveyed to, confined in and released from the Missouri Penitentiary under said conviction. (Consult State v. Jones, Mo., 384 S.W.2d 554, 559 [4].) Defendant also testified his conviction of rape was “still pending trial in the United States Supreme Court”; that he “appealed the case in St. Louis,” and that “Morris Shenker has the case now.” This rape case and the instant case were tried in Jackson County by the same judge. He found the Habitual Criminal Act applied.

Defendant contends his punishment should have been submitted to the jury on his statement his conviction of rape was pending on appeal.

Juries and other triers of the facts may believe all the testimony of any witness or none of it, or may accept it in part or reject it in part, just as they find the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case. Kickham v. Carter, Mo., 314 S.W.2d 902, 905 [1]; State v. Tompkins, Mo., 277 S.W.2d 587, 590 [1]. Ordinarily a plaintiff or a defendant is bound by his testimony against interest. Thaller v. Skinner & Kennedy Co., Mo.App., 307 S.W.2d 734, 738 [5]. A party is entitled to have the trier of the facts pass on the credibility of the witnesses and the weight of their testimony although it be uncontradicted. State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100, 102 [3]; Hampton v. Niehaus, Mo., 329 S.W.2d 794, 801 [10]; Sartin v. Sartin, Mo.App., 349 S.W.2d 705, 710 [6]. When passing on the weight and sufficiency of the evidence the trier of the facts should consider the credibility of the witness, his motives in testifying, his demeanor, and his feelings for or against any party or witness to the litigation. State v. Gridley, Mo., 353 S.W.2d 705, 707 [8]; State v. Brown, 304 Mo. 78, 262 S.W. 710 [7].

Defendant’s release from the Missouri Penitentiary sixteen to seventeen months prior to his arrest on this charge of stealing on February 18, 1964, as defendant testified, is sufficient to sustain a finding that no timely review proceeding before the United States Supreme Court had been instituted.

Defendant’s testimony that his rape case was on appeal in the United States Supreme Court was not conclusive on the trial judge, although it was for his consideration.

Furthermore: Defendant was found guilty on May 13, 1964, of the felony of stealing on February 18, 1964. The issue of his punishment involves his conviction of rape in 1961, approximately three years prior to the instant trial. We have said: “An appellate court takes judicial notice of its own records.” This is particularly so in the interest of justice when the prior litigation is involved in later litigation between the parties. State ex rel. Horton v. Bourke, 344 Mo. 826, 129 S.W.2d 866, 869 [7]; Flynn v. Janssen, Mo., 284 S.W.2d 421, 422 [1]; State ex rel. St. Louis Public Service Commission v. Public Service Comm., Mo., 291 S.W.2d 95, 97 [1]; Harter v. Lindsay, Mo.App., 306 S.W.2d 881, 883 [3]; Franz v. Buder, C.C.A.8th, 34 F.2d 353, 356 [5]. A trial court may take judicial notice of its own records. Arata v. Monsanto Chemical Co., Mo., 351 S.W.2d 717, 721 [5]; Vogel v. Vogel, Mo.App., 333 S.W.2d 306, 310 [6].

We affirmed defendant’s conviction of rape on May 14, 1962, and overruled his motion for rehearing on June 11, 1962. See, 357 S.W.2d 936. Under § 477.030 the clerk of an appellate court is required to transmit to the circuit court a copy of the opinion entered in a case on appeal within thirty days after the filing of the opinion. Our mandate and a copy of our opinion in State v. Wynn, supra, was forwarded to the Clerk of the Circuit Court of Jackson County on June 27, 1962. This action is the last entry of record in said case. Now after a lapse of much more than one hundred and fifty days (1954 U.S.Sup.Ct.Rules 11 and 22, 28 U.S.C.A.) there has been no application for or any order staying our said mandate in defendant’s rape case or any order recalling it from the Circuit Court of Jackson County. It follows that no proper review proceedings have been instituted in said case of State v. Wynn; and the correctness of the findings of the facts under the Habitual Criminal Act is established by the record made by this defendant.

The better practice is for the State to put on its evidence establishing the essential facts of the Habitual Criminal Act.

The second and last point in defendant’s brief reads: “The trial court erred in compelling appellant to proceed with his then attorney and in refusing to allow appellant to make his own closing argument.”

When defendant appeared for arraignment, the court informed him of the charge against him, the possible punishment if he be found guilty, and his right to counsel, explaining the benefits of counsel to defendant. The court found defendant mentally able and sufficiently informed to decide his need for counsel and offered to appoint counsel to conduct the defense; but defendant waived such right to counsel. Defendant pleaded “not guilty.” He appeared in court in person and by Lester Adams, an attorney of his own choosing, for his trial. After the closing of the evidence, defendant, securing permission, stated that he would like to act in his own defense; that: “I would like to make my closing argument ***.*** At the present time I am discharging my lawyer.” The court refused to permit this, stating it would not be fair to defendant.

We think it well stated in 14 Am.Jur., Criminal Law, § 170: “ * ⅜ * [I] f he [defendant] elects to be represented by counsel who conduct the defense until the time comes to make the argument to the jury, he cannot discharge them and insist on making the closing argument himself, though it is within the discretionary power of the court to permit him to do so.” State v. Velanti, Mo., 331 S.W.2d 542, 546 [5]; State v. Ingram, 316 Mo. 268, 289 S.W. 637 [2]; State v. Warren, Mo., 321 S.W.2d 705; State v. Townley, 149 Minn. 5, 182 N.W. 773, 780 [11, 12], 17 A.L.R. 253, 264 (14), cert. den., 257 U.S. 643, 42 S.Ct. 54, 66 L.Ed. 413; Annotation, 77 A.L.R.2d 1241, § 4.

We find no abuse of discretion in the trial court’s ruling under the circumstances of this record.

Our examination of the record discloses no error within the provisions of S.Ct. Rule 28.02, V.A.M.R.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by WALTER H. BOHLING, Special Commissioner, is adopted as the opinion of the Court.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Dempsey OWENS, Jr., Appellant.
    No. 50686.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.

      Norman H. Anderson, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for respondent.
    Richard J. Childress, St. Louis, for appellant.
   BARRETT, Commissioner.

Dempsey Owens, Jr., with four prior felony convictions, has been found guilty of illegal possession of narcotics, 1.32 grams of heroin, and sentenced to ten years’ imprisonment. RSMo 1959, §§ 195.020, 195.-200, V.A.M.S. The transcript of the record shows that Dempsey was arraigned and entered a plea of not guilty on June 6, 1963. On the following day, June 7, the court finding upon examination of the defendant that he was an indigent appointed, without ■compensation, a distinguished professor of law to represent him in the trial of the cause. And in March 1964 upon conviction and after permitting him to appeal as a poor person and furnishing a free transcript of the record (RSMo 1959, § 485.-100, V.A.M.S.) the court again appointed the same counsel to represent him upon his appeal to this court.

In October 1963, alleging an illegal arrest and a consequent illegal search and seizure in violation of the state and federal constitutions, counsel filed a motion to suppress “all evidence” obtained by two St. Louis police officers on May 21, 1963, the date of the offense and the day on which Dempsey was arrested. Simultaneously counsel filed a motion to dismiss the amended information, alleging as grounds that on May 21, 1963, Dempsey was taken before a judge of the St. Louis Court of Criminal Correction for a preliminary hearing and although an indigent and entitled to counsel, a right of which he was then unaware, the judge did not inform him of his rights. It was alleged that the preliminary was “a critical stage in the criminal proceeding” against him and that only with counsel at the preliminary could he secure “a fair and equal trial.” Following this statement in counsel’s plea on behalf of Dempsey it is asserted, since the statutes and rules of criminal procedure provide for the appointment of counsel upon arraignment (Criminal Rule 29.01, V.A. M.R.; RSMo 1959, § 545.820, V.A.M.S.) and because he was entitled to consult counsel after arrest and while in custody (Criminal Rule 29.05), and not having been furnished counsel upon the required preliminary hearing (Criminal Rules 23.03, 23.-08; RSMo 1959, § 544.250, V.A.M.S.), that his rights guaranteed by both the state and federal constitutions, particularly the due process and equal protection provisions, had been infringed. On the following day, October 4, 1963, counsel filed a third motion for an “order of court taxing cost of depositions to the State of Missouri.” In this sixteen-point motion it was alleged that he desired to take the depositions of the two arresting officers, patrolmen Lodi and Smith, and of Melvin Bingham, a third police officer, well acquainted with Dempsey, who appeared upon the scene of the arrest.

After a lengthy hearing, consisting of the testimony of the defendant and the three named police officers, the court overruled all three motions and this action by the court is the basis of the assignments of error now made upon this appeal. It should first be noted in passing, however, that after the motions were overruled on October 21, 1963, and the case proceeded to trial on November 4, 1963, except for expert testimony as to the heroin, the state’s witnesses were the three policemen whose testimony before the jury was substantially the same as they testified upon the motions before the court. The defendant offered no evidence upon the principal trial and as indicated the jury found him guilty and since he had prior felony convictions the court fixed his punishment. RSMo 1959, § 556.280, V.A.M.S. It may also be interpolated that officer Smith did not testify at the preliminary hearing. Officer Lodi did testify at the preliminary and in response to defense counsel’s inquiry said that he gave the same evidence at the preliminary, “I testified as to what I had seen,” as he gave upon the motion to suppress.

Both upon the hearing of the motion to suppress evidence and upon the trial of the cause the facts as the trial judge or the jury could reasonably find them were that on May 21, 1963, about 1:15 in the morning uniformed police officers Lodi and Smith were cruising in a marked police car north on Hodiamont at Etzel near a National Food Store. The parking lot to the rear of the food store was “illuminated” by a night light at the rear of the building, a lighted icehouse and a street light and except for the police and Dempsey there was no other person or traffic on the street or in the neighborhood. There was an automobile parked at the rear of the store. Officer Smith was driving and Lodi said that he saw Dempsey “walking cater-cornered” across the parking lot towards the automobile and he told Smith to stop. As they pulled into the curb he “observed the subject throw a shiny object to the ground.” Smith stopped the police car and both officers alighted, Lodi to pick up the object “and see what it was” (he thought it was a gun), and Smith “to stop that man.” As Lodi walked towards the shiny object he “observed the subject drop a piece of paper to the ground, and my partner picked it up and handed it to me, and I opened it and it contained twenty-two capsules containing a white powder.” The paper Smith picked up was a “Double-Mint Chewing Gum wrapper” and inside the wrapper there was a cigarette paper and the “white powdery substance” turned out to contain 1.32 grams of heroin. And the shiny object turned out to be a loaded .32 caliber pistol which Dempsey said “was his too.” Lodi asked Dempsey where he got the package of powder, “at first he denied it and then finally said, ‘you got me good this time.’ ” Lodi said that there was no reason for stopping the police car other than seeing Dempsey throw the “shiny object.” Lodi said, “I seen Mr. Owens drop the package, and my partner reached down and picked it up, and he turned around and handed it to me, and I opened it, and during this time there was no conversation as yet taking place.” Smith said that after dropping the paper wrapper Dempsey “stopped on his own accord to face the officer” (Lodi). Lodi testified that after he opened the package handed to him by Smith “Then I placed him (Dempsey) under arrest for Possession of Narcotics. * * * Well, I told the man he was under arrest for Possession of Narcotics, and then I walked on back and picked up this revolver.” Lodi said that he saw Dempsey throw the chewing gum wrapper, he dropped it, Lodi said, not more than an inch from his right foot, and there was no search of his person until “after he told me he had that bottle in his coat. I hadn’t search him up to that point.” And, incidentally, the bottle contained amphetamine hydrochloride, but the appellant was not charged with the possession of this particular drug.

The circumstances as they were made to appear upon the appellant’s motion, as well as upon the trial, have been set forth in elaborate detail because they completely refute as a matter of fact the foundation of his claim of an invasion of constitutional rights by reason of an illegal arrest and a consequent unlawful search and seizure. And in these particular circumstances, and as the trial court found the facts in his memorandum, it is not necessary to factually distinguish the cases relied on by the appellant (State v. Cuezze, Mo., 249 S.W.2d 373; State v. Morice, Mo., 79 S.W.2d 741) or to examine the asserted constitutional guaranties involved in an illegal arrest and a consequent unlawful search and seizure. In the principal case relied on, Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, it was alternatively observed, depending on the fact, that “(i)f the petitioner thereafter voluntarily revealed the package of narcotics to the officers’ view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence.” Almost identical circumstances and asserted constitutional questions were involved in State v. Cantrell, Mo., 310 S.W.2d 866, (a burglary and larceny case) and State v. Harris, Mo.App., 325 S.W.2d 352, the latter a prosecution for possession of lottery tickets. In both cases the evidence was detailed and the statutes governing police officers in St. Louis examined (RSMo 1959, § 84.090(10), V.A.M.S.), and it was held that the arrests were lawful and “where papers and effects seized are open to the eye and hand” there has been “no case of search and seizure violative of defendant’s right to be secure in his person under Article 1, Section 15, of the Constitution is presented.” In view of the facts as they have been detailed and were found there is no point in examining into the constitutional rights alleged to have been infringed; the arrest was lawful and certainly as to the heroin, the only offense involved here, there was no invasion of the right of “the people” to “be secure in their persons * * * from unreasonable searches and seizures” (Const.Mo. Art. 1, Sec. 15, V.A.M.S.) or by the same token an infringement by the State of Missouri of any right protected by the Fourteenth Amendment to the Constitution of the United States.

Furthermore, it may be noted at this juncture, the circumstances as testified to by the police officers sustain the charge and jury finding of unlawful possession of a narcotic drug. State v. Worley, Mo., 375 S.W.2d 44.

Also, setting forth in detail the circumstances of Dempsey’s arrest and the testimony adduced by him upon his motion to suppress evidence serves to refute if not destroy his second point that the trial court’s denial of his motion for an order “taxing cost of depositions to the State of Missouri” was likewise an infringement of his state and federal constitutional rights. There is of course a right on the part of both the state, under certain limitations, and defendant in a criminal case to take depositions (Const.Mo. Art. 1, Sec. 18(b); RSMo 1959, § 545.400, V.A.M.S.; Criminal Rule 25.10) but there is no provision for free depositions. And “at least under the circumstances shown in this case, certainly is not essential to the minimum requirements of due process under either the Missouri or United States Constitution.” State v. Aubuchon, Mo., 381 S.W.2d 807, 812-813. It may be that the mere citation of this case is sufficient to dispose of this point but, as indicated, in his motion the appellant asked to take the depositions of officers Smith, Lodi and Bingham, alleging merely that they were endorsed as witnesses and possessed “knowledge and evidence material and relevant to the defense of defendant in this cause.” At the conclusion of the presentation of the evidence on the motion to suppress evidence on October 11, 1963, the court observed to counsel, “I think you have the deposition now, do you not? I’m very serious. I don’t know what more you could ask.” But defense counsel insisted that he did not have “a transcript of this,” although he did concede that the testimony of Smith, Lodi and Bingham on the motion “covered the same territory” depositions would have covered. The court’s memorandum overruling the motions was filed October 21, 1963, and the case was set for trial on November 4. There was no request for a continuance and upon the trial there was no claim of surprise or of unfair advantage to the state and the police officers all testified to substantially the same circumstances they had related in greater detail on the appellant’s motion to suppress. There is no attempt here to demonstrate in any manner that Dempsey Owen’s right to a fair trial has been infringed; the mere abstraction is asserted that because his motion to tax costs for depositions was overruled his constitutional rights have been invaded, but the bare assertion has no basis in reality or fact and upon this record there was no manifestly prejudicial error in the court’s overruling this particular motion. State v. Aubuchon, supra.

In this background the third and most vigorously urged assignment of error has to do with the overruling of the appellant’s motion to dismiss the information for the reason that he was not represented by counsel at the preliminary hearing. In his motion it was alleged that he was an indigent and unable to secure counsel, that he was not aware of his right to court-appointed counsel at his preliminary hearing and that he was not advised of his right by the judge of the court of criminal corrections, and he alleged that “the preliminary examination is a critical stage in the criminal proceeding.” He points to the fact that under Missouri law he had the right to consult with counsel after his arrest and while in custody (Criminal Rule 29.05), that as an indigent charged with a felony he was entitled to the appointment of counsel upon his arraignment in the circuit court (RSMo 1959, § 545.820, V.A.M.S.; Criminal Rule 29.01) and finally asserts that the lack of counsel at his preliminary hearing infringed his state and federally protected rights to due process and equal protection. Const. Mo. Art. 1, Secs. 2, 18(a); Fourteenth Amendment Constitution of the United States.

The point briefed and argued is that the preliminary hearing is a critical stage in the criminal process in Missouri (RSMo 1959, § 544.250, V.A.M.S.; Criminal Rules 23.02-23.03, 23.08) and that unless understandingly and intelligently waived (Walton v. State of Arkansas, 371 U.S. 28, 83 S.Ct. 9, 9 L.Ed.2d 9) the mere failure to appoint counsel at that stage in the criminal prosecution is an infringement of the indicated constitutional rights and guaranties necessitating, he urges, that his conviction be set aside. In support of his position the appellant cites a list of recent and very well known decisions of the Supreme Court of the United States, including for example Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. But it is not necessary upon this record to analyze these cases in detail and distinguish them factually or otherwise, that has been done on three recent occasions and it is sufficient here to say that there is no basic conflict in the decisions of this court and the decisions of the Supreme Court of the United States. Nevertheless, in the most recent decision it was held that the mere failure to appoint counsel at the preliminary hearing in a non-capital felony case standing alone did not violate either the state or federal constitutions. State v. Phelps, Mo., 384 S.W.2d 616. Admittedly a preliminary hearing may be “a critical stage” and what happens there may in some situations and some circumstances, not involved here, infringe fundamental rights, but a preliminary hearing in Missouri “is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged in the circuit court or discharged if probable cause is not found.” State v. Turner, Mo., 353 S.W.2d 602, 604. In the Phelps and Turner cases and in State v. Gagallarritti, Mo., 377 S.W.2d 298, as indicated, the decisions of the Supreme Court of the United States down to December 1964 were examined and their determinative and distinguishing factors noted and it is only necessary here to briefly examine the cases since that date in the light of this record.

Dempsey, admittedly, was not represented by counsel but upon the record here, aside from the fact that there was a preliminary hearing before a judge of the criminal court of corrections (RSMo 1959, § 479.090, V.A.M.S.) and that he was “bound over” or held “to answer in the court having jurisdiction of the offense” (Criminal Rule 23.08), the only fact made to appear was from the testimony of Officer Lodi adduced by the appellant upon the motion to dismiss the information. From that testimony it plainly appears that upon the preliminary hearing Lodi was the only witness called and he “testified as to what I had seen” which as previously indicated was sufficient to establish probable cause that Dempsey had committed a felony. State v. Turner, supra. According to this record the appellant Dempsey Owens did not testify either upon the preliminary or in this trial and there is no claim that he was requested to give evidence or make a statement or that he was there imposed upon in any manner. There is no allegation here and certainly no fact or circumstance in the record from which there is a possible inference that by reason of the preliminary hearing the state either sought or gained the slightest advantage or that there was any overreaching. In short, again the appellant does not point to the record and attempt to demonstrate the slightest prejudice or infringement of his right to a fair trial in the circuit court resulting from his lack of counsel at the preliminary hearing. As with the other asserted invasions of his fundamental rights, the appellant relies on a mere technical failure to provide counsel and is thus in the position of asserting mere theoretical rights and invasions, in a vacuum so to speak, when of course the courts are necessarily concerned with reality and the facts and circumstances of the particular case.

In the recent case of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, proceedings at a preliminary in Texas, which differs materially from a preliminary hearing in Missouri, resulted in a denial of the fundamental right of confrontation of witnesses and consequently an infringement of the Sixth and Fourteenth Amendments. In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the defendant’s lawyer was denied access to his client and thereafter an incriminating statement was obtained and its use upon his trial infringed the Sixth and Fourteenth Amendments. But there has been no use here of unfairly obtained statements or documents. Compare: Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. While the case may have been modified in other respects, Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, validly applicable here is the statement that “state refusal of [an accused’s] request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits, * * * but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of‘that fundamental fairness essential to the very concept of justice.’ ” As to the implied if not direct claim that the mere failure to appoint counsel at a preliminary hearing constitutes a prejudicial infringement of constitutional rights within the meaning of the recent decisions of the Supreme Court of the United States, the United States Court of Appeals, Fourth Circuit, in DeToro v. Pepersack, 332 F.2d 341, certiorari denied, 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181 and a United States District Court in United States ex rel. Parker v. Myers, 233 F.Supp. 563, have summarized the matter in this appropriate language:

“In our view, Hamilton and White teach that an accused is denied rights afforded him under the sixth amendment when he is subj ected to an arraignment or to a preliminary hearing without the assistance of counsel, where events transpire that are likely to prejudice his ensuing trial. The Court, in each case, refused to speculate as to whether in fact prejudice actually accrued.
“Thus, the thrust of Powell’s admonition that an accused has a right to counsel ‘at every step in the proceedings against him,’ as borne out by subsequent decisions, including Hamilton and White, seems to be that if the effectiveness of legal assistance ultimately furnished an accused is likely to be prejudiced by its prior denial, the earlier period may be deemed a critical stage in the judicial process and a conviction obtained in such circumstances is rendered invalid; We find nothing in the Supreme Court decisions, however, that would permit us to extend the duty of the State to appoint counsel in proceedings where even the likelihood of later prejudice arising from the failure to appoint is absent.”

These two cases and these principles are peculiarly applicable to this record and the appellant’s abstract, theoretical claim of an unfair and prejudicial infringement of fundamental rights.

The information in the language of the statute appropriately charges the offense of illegal possession of narcotics (State v. Worley, supra; State v. Virdure, Mo., 371 S.W.2d 196), the punishment was within the prescribed limits (RSMo 1959, §§ 195.200, 556.280, V.A.M.S.), there was allocution and compliance with all the required formalities and there are no errors upon the record before the court (Criminal Rule 28.02) and for the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.