text:
    BUCHANAN COUNTY, Respondent, v. STATE TAX COMMISSION of Missouri, Hunter Phillips, Harold L. Love, and Ralph J. Hutchinson, members, Defendants, Crouch Brothers, Inc., Appellant.
    No. 51680.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Thomas A. Duty, Pros. Atty., Buchanan County, and W. H. Utz, Jr., of Smith, Utz, Litvak & Thackery, St. Joseph, for respondent.
    Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
   STOCKARD, Commissioner.

In a proceeding pursuant to Civil Rule 100, V.A.M.R., for judicial review of the decision and order of the Missouri State Tax Commission (hereafter referred to as the “Commission”), the Circuit Court of Buchanan County remanded the case to the Commission with directions that certain evidence be received and considered by the Commission, and for a new decision then to be rendered. The affected taxpayer, Crouch Brothers, Inc. (hereafter referred to as “Crouch Brothers”) has appealed. This court has appellate jurisdiction because Buchanan County is a party, and also because the case involves the construction of the revenue laws of this state.

Section 137.095 RSMo 1959, V.A.M.S., provides that all tangible personal property of business and manufacturing corporations "“shall be taxable in the county in which such property may be situated on the first day of January of the year for which such taxes may be assessed, and every business or manufacturing corporation having or owning tangible personal property on the first day of January in each year, which shall, on said date, be situated in any other county than the one in which said corporation is located, shall make return thereof to the assessor of such county or township where situated, in the same manner as other tangible personal property is required by law to be returned.”

Crouch Brothers is a corporation engaged in the trucking business and has its principal place of business in Buchanan County, Missouri. It made a timely return to the assessor of Buchanan County of its tangible personal property, and it listed thereon 64 items consisting of cars, trucks, tractors and semi-trailers. During 1964, apparently after June 1, the assessor of Buchanan County received from the Missouri Department of Revenue (furnished pursuant to Section 137.116 Cum.Supp.Mo.Rev. Stat., V.A.M.S. pocket parts) a list of motor vehicles and trailers registered with that department in the name of Crouch Brothers. This information was made available to the Buchanan County board of equalization, and either at the direction of the board or by act of the assessor (one of the fact issues in this case) the 239 vehicles belonging to Crouch Brothers were added to the tax assessment list on August 19,1964. The assessor had no knowledge, and apparently the board of equalization made no effort to determine, whether any of these vehicles were physically present in Buchanan County on January 1, 1964. The president of Crouch Brothers testified before the Commission that none of the vehicles was in Buchanan County on January 1, 1964, and that all of the 239 vehicles were “based” at places other than Buchanan County. After an appeal by Crouch Brothers to the Commission, and after a hearing, the Commission held that the additional assessment “predicated upon the supplemental list of 239 motor vehicles added to the original assessment of [Crouch Brothers] is not supported by law and therefore [is] invalid and void.” It cannot be determined whether the Commission reached this result on the basis that the assessor purported to add the 239 vehicles to the assessment of Crouch Brothers after June 1, 1964, when he had no authority to do so, see Section 137.115, or on the basis that the 239 vehicles were not “situated” in Buchanan County on January 1, 1964, or both. Findings of fact consistent with each basis were made. During the hearing before the Commission, counsel for Buchanan County sought to question the president of Crouch Brothers whether “the personal taxes [have] been paid on any of these [239] vehicles in any other county,” but an objection was sustained on the ground that the only issue was “whether or not, under the statutes, they should have been assessed” in Buchanan County.

The trial court held that the Commission erred in three particulars. 1. It had erroneously found that the assessor, and not the county board of equalization, had made the additional assessment. 2. The Commission refused to receive competent and relevant evidence, and for that reason its decision was arbitrary and capricious. 3. The Commission had erroneously defined the word “situated” as used in Section 137.095 as meaning physically present.

Crouch Brothers first contends on this appeal that the trial court erred in ruling that “the act of the assessor in making up his assessment was the act of the board of equalization.” It is the position of Crouch Brothers that pursuant to Section 137.115, the authority of the assessor to add omitted property to the tax list for 1964 expired after June 1, and for that reason the addition by him of the 239 items on August 19 was void and of no effect. The Commission found and declared that the assessor “can proceed only at the time and in the manner prescribed by the statute,” citing Section 137.130, and that “such a list must be made up between January 1st and June 1st,” citing Section 137.115. The Commission further found, as a fact, that “none of the equipment comprising the additional assessment * * * was in Buchanan County on January 1, 1964.” There is no plainly stated finding that the additional assessment of the 239 vehicles was made by the assessor after June 1, but such a finding appears by implication’

The evidence discloses that the assessor received the list of additional 239 vehicles from the Department of Revenue, but the time he received the list is not shown. “Sometime during the month of July,” the assessor “made up a list” of the 239 vehicles and “presented it” to the board of equalization. On August 19, 1964, a letter (which we set forth exactly as it appears in the transcript) was sent to Crouch Brothers from the Buchanan County Board of Equalization as follows: “With reference to the appeal before the Board of Equalization of Buchanan County, August 18, 1964, in which your appeal against the assessment of the (vehicles enclosed). The action that the Board of Appeals took, is as follows: that Crouch Brothers, Inc. has not shown cause under Section 138.070, why they should not be added to the assessment, and/or assessed for the year 1964, the two hundred, thirty-nine vehicles are assessed at $235,950 to be added to this year’s list, 1964.”

Section 138.070 authorizes the county board of equalization “to assess and equalize the value of any property that may have been omitted from the assessor’s books then under examination.” The addition of the vehicles to the assessment list occurred on August 19, 1964. While the evidence is not as complete as it should and easily could have been, it establishes that the addition of the 239 vehicles to the assessment list was the act of the board of equalization and not the act of the assessor. No other reasonable conclusion can be reached from the evidence when considered as a whole, and we agree with the trial court that the finding of the Commission to the contrary, if in fact such a finding was made, is not supported by competent evidence. The decision of the Commission that the additional assessment is “invalid and void” cannot be sustained on the basis that it was made on August 19 by the assessor.

The remaining issues are whether the word “situated” as used in Section 137.095 means physically present, as the findings of the Commission indicate it found, and if not whether the Commission erroneously refused to receive competent evidence bearing on the issue of where the vehicles in-eluded in the additional list were situated for tax purposes.

The provision that tangible personal property “shall be taxable in the county in which such property may be situated” on a stated day is not the same as providing that the property shall be taxable where “physically present” on that day. In its application to personal property, the word “situated” as used in a statute authorizing or directing the taxation of property, connotes a more or less permanent location or situs. Brock & Company v. Board of Supervisors of Los Angeles County, 8 Cal.2d 286, 65 P.2d 791, 110 A.L.R. 700. See also Colonial Life & Accident Insurance Co. v. South Carolina Tax Commission, 233 S.C. 129, 103 S.E.2d 908, 919; Appeal of Pilot Freight Carriers, Inc., 263 N.C. 345, 139 S.E.2d 633; Assessors of Sheffield v. J. F. White Contracting Co., 333 Mass. 306, 130 N.E.2d 696. Yellow Mfg. Acceptance Corporation v. Rogers, 235 Mo.App. 96, 142 S.W.2d 888, pertained to a statutory requirement that a mortgage be recorded “where the property mortgaged was situated at the time of executing such mortgage.” After quoting from the Brock case, supra, the court stated that the word “situated” as used in the statute “clearly implies some element of permanency.” When used in statutes referring to the taxation or mortgaging of personal property, the word “situated” has been held to require more than a mere temporary presence. Montague Bros. Inc. v. W. C. Shepherd Co., 231 N.C. 551, 58 S.E.2d 118; Assessors of Sheffield v. J. F. White, supra. It has also been held that temporary presence is not sufficient, General Exchange Insurance Corporation v. Dudley, Tex.Civ.App., 128 S.W.2d 452, and that the word “situated” refers to the place where the personal property is regularly kept, Rapid City Nat. Bank v. Spouse, 73 S.D. 493, 44 N.W.2d 437, with a more or less permanent location or situs. Universal C.I.T. Credit Corp. v. Walters, 230 N.C. 443, 53 S.E.2d 520, 10 A.L.R.2d 758. We conclude from the language of Section 137.095, and from the interpretation of similar language in the above cited authorities, that the action of the Buchanan County Board of Equalization in adding the 239 vehicles to the tax assessment list solely on the basis that the records of the Department of Revenue showed that they were registered in the name of Crouch Brothers was arbitrary, unreasonable and erroneous. We further conclude that the Commission was in error in ruling that they were not taxable in Buchanan County for the sole reason that they were not physically present in that county on January 1, 1964. Whether these 239 vehicles were subject to being placed on the tax assessment list in Buchanan County depended upon whether on January 1, 1964, they were regularly kept there, that is, whether the permanent situs or location of the vehicles was in Buchanan County. This is a fact issue which has not yet been decided in this case.

The judgment of the trial court that the Commission excluded competent and relevant evidence is limited to the ruling of the Commission sustaining an objection to the question whether Crouch Brothers had “paid” taxes on the 239 vehicles in some other county. We agree with the Commission that whether taxes were “paid” is not material to the issue. However, when a corporate taxpayer asserts that personal property is not subject to being assessed in the county “in which said corporation is located” because the personal property is “situated” in another county in Missouri, it is material to the issue, but not necessarily conclusive, as to where the property was “situated” whether the corporation made the return required by Section 137.095. In this case, when the issue is whether certain personal property is situated in Buchanan County or another county in Missouri, the failure of Crouch Brothers to make the return to the assessor of the other county as required by Section 137.095 is an admission against interest and is entitled to such consideration as the Commission determines proper under the circumstances.

We note that Crouch Brothers operates in several states, and that by the judgment of the circuit court upon rehearing the Commission is directed “to hear further testimony concerning whether or not, and if so, where a tax return for the 239 vehicles in question was filed or made.” Section 137.095 does not require a tax return to be filed for personal property “situated” out of the State of Missouri, and whether there has been compliance with the requirements of Section 137.095 for returns to be made to the assessor of counties other than the county “in which said corporation is located” is immaterial as to property which Crouch Brothers contends was “situated” in some other state.

The judgment is modified in the respect last above mentioned, and as modified is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . This section was amended in 1965. See Cum.Supp.Mo.Rev.Stat., Y.A.M.S. pocket parts. Reference in this opinion to “Section 137.095” refers to its provisions which were in effect and which governed the assessment of tangible personal property of business and manufacturing corporations for the year 1964.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    Shelby Jean HEIBEL et vir, Appellants, v. Camille BERMANN, Appellee.
    No. 14896.
    Court of Civil Appeals of Texas. Houston.
    Oct. 27, 1966.
    Robert J. Barr, Houston, for appellants.
    Vinson, Elkins, Weems & Searls, John N. Touchstone, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment, rendered on appellee’s motion for summary judgment, dismissing appellants’ suit against appellee. The suit dismissed was one against appellee to recover damages at common law, both actual and punitive, for injuries allegedly resulting from an intentional blow struck by appellee that resulted in injury to Mrs. Heibel.

On March 9, 1963, Mrs. Heibel was an employee of Maxim’s, Inc. in Houston. Appellee was a fellow employee. On that date, according to a petition filed by Mrs. Heibel and her husband, she, while acting in the course and scope of her employment, was struck and received a sharp blow over her right kidney area. As a result of the injuries received, she alleged she was totally and permanently disabled and asked compensation for 401 weeks, together with medical expense, from Aetna Casualty and Surety Co., the workmen’s compensation carrier for Maxim’s, Inc. The suit represented an appeal from an award of the Industrial Accident Board.

On January 31, 1966, an agreed final judgment of compromise and settlement was rendered awarding Mrs. Heibel $3,-800.00 against Aetna. The judgment, signed by appellants here, their attorney, the attorneys for Aetna and the judge, recited that the judgment had been fully satisfied and it was adjudged that Aetna and the employer were relieved and discharged from all liability for damages, disability, incapacity, etc. arising or growing out of the accident and accidental injuries to Mrs. Heibel which were the basis of the suit. Appellants and their counsel acknowledged in writing the receipt of $3,800.00 in full payment, satisfaction and discharge of the accident of March 9, 1963, and the judgment rendered. The receipt contained an agreement that appellants would pay all medical expense.

On February 11, 1966, appellants filed suit against appellee individually alleging that on March 9, 1963, appellee intentionally struck Mrs. Heibel on the kidney causing severe injuries to her. They sought to recover actual and punitive damages. As presented here appellants contend that though Mrs. Heibel first claimed and received workmen’s compensation from Aet-na, since the act of the fellow employee that caused her injuries and disability was intentional, she also has a common law action for damages, because such action is preserved to her by Article I, Sec. 13, Constitution of Texas, Vernon’s Ann. St.

Appellee by his answer, both by way of exception and in bar, pled that Mrs. Heibel had claimed and accepted compensation under the workmen’s compensation insurance policy covering Maxim’s, Inc. and this, by virtue of Article 8306, Sec. 3, Vernon’s Ann.Tex.Civ.St., barred recovery. Too, as a bar to recovery appellee pled the period of limitation prescribed by Article 5526, V.A. T.S.

Appellee’s motion for summary judgment pled also as a bar Section 5 of Article 8306. To the motion he attached a certified copy of appellants’ petition seeking recovery from Aetna of workmen’s compensation, the compromise judgment in that case and the receipt acknowledging payment of the compensation. An affidavit of appel-lee shows that he was president of Maxim’s, Inc. and was also general manager of the club and restaurant operated by the corporation. His duties at the time of the incident of March 9, 1963, and also at the time of the affidavit on March 4, 1966, included the supervision of, preparation and serving of food and beverages in the restaurant and private club. He was paid a salary for the performance of these duties and there were withheld by the employer payments for income and social security taxes. The affidavit also shows the incident of March 9, 1963 occurred while both Mrs. Heibel and appellee were engaged in the performance of their respective duties as fellow employees.

Appellant, Mrs. Heibel, in opposition to the motion, filed her affidavit asserting the blow was intentionally struck by appellee. She also disclaimed ever having asserted that the striking of the blow was accidental.

We are of the view that appellants, by proceeding to claim and collect benefits provided under the workmen’s compensation policy of insurance provided by the employer, as above established, are as a matter of law precluded from maintaining an action at common law for damages, either actual or punitive, against a fellow employee.

The same contentions made by appellants here were made by an injured employee in the case of Jones v. Jeffreys, 244 S.W.2d 924 (CCA), writ ref. The Court of Civil Appeals there held the injured employee by electing to receive the benefits of workmen’s compensation was precluded on the grounds of estoppel and res adjudicata from recovering damages based on a suit under the common law. Article 8306, Section 3, was held not to violate Article I, Sec. 13, because of the elective nature of the Workmen’s Compensation Act. Too, it held that under Article 8306, Sec. 5, V.A.T.S., and Article 16, Section 26, Constitution of Texas, exemplary damages were preserved only in case of the death of an employee in favor of named survivors. By the action of the Supreme Court in refusing a writ of error, the holding of the Court of Civil Appeals and the reasons stated for the holdings were given full approval.

While in Jones the suit was against the employer who was one of the partners and here the suit is against a fellow employee, we are unable to conclude this makes any material difference. Article 8306, Section 3, provides: “The employees of a subscriber * * * shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries * * * but such employees * * * shall look for compensation solely to the association * * * ”

Our holding makes it unnecessary to discuss whether appellants’ asserted cause of action is barred by the provisions of Article 5526.

The trial court’s judgment dismissed the suit. The defenses established as a matter of law were ones in bar of recovery and the case was disposed of on motion for summary judgment and not exception. The judgment should have been one that plaintiffs take nothing. The judgment will, therefore, be reformed so as to provide that Plaintiffs take nothing by their suit.

As reformed, the judgment of the Trial Court is affirmed.


author: CHAPMAN, Justice.

text:
    William BOLEN, on Behalf of and as next friend of Harold Bolen, Appellant, v. Sherry TIMMONS, Appellee.
    No. 7644.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1966.
    Rehearing Denied Nov. 14, 1966.

      Splawn & Maner, Lubbock, James R. Edwards, Lubbock, of counsel, for appellant.
    Key, Carr & Clark, Lubbock, William C. Clark, Lubbock, of counsel, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment in a personal injury case based upon a jury verdict in which William Bolen, father of Harold Bolen in his individual capacity and as next friend of his minor son, recovered $178.85 of $255.85, the exhibits show was incurred for medical, doctor and hospital expenses growing out of a rear-end collision on December 30, 1964, but was denied any recovery for the son for his injuries, pain and suffering and for mental anguish. Harold Bolen was the minor plaintiff below and Sherry Timmons was the minor defendant in the trial court.

Harold Bolen was sitting on his motorcycle with his foot on the brake while stopped at a red light in the City of Brownfield when he was rear-ended by appel-lee, a 15-year-old girl, driving a Falcon automobile in which six of her girlfriends were riding with her.

The jury found Sherry failed to keep a proper lookout, failed to properly apply her brakes in an attempt to avoid the collision and answered the corollary questions of negligence and proximate cause against her. Harold was absolved of any negligence whatever.

The testimony shows Sherry had slowed her car and changed to a lower gear to observe the red light ahead. By her own testimony she was not conscious of the motorcycle sitting ahead of her and her first knowledge of it was when she felt the impact as she was looking to the right and waving at a girl in another car. When asked if the impact was light, moderate or heavy, she answered, “Moderate.”

The evidence shows the motorcycle with the brake on was knocked from six inches to a foot, which would naturally whip the boy’s neck and back in that proportion commensurate with the severity of the impact.

Reversible error is urged in the answer of the jury to Special Issue No. 11, the damage issue, for the reason it was “ * * * so contrary to the evidence as to manifest a complete disregard of the evidence.” We sustain the point.

Prior to the rear-ending Harold had suffered no physical problems with his back, neck or other parts of his body. He was a high school senior student taking distributive education, a course whereby he attended school a half-day and worked a half-day in manual employment. Prior to the rear-ending he could do heavy lifting, straining, body stress and stand on his legs for long periods of time without physical difficulty. He was the only child at home and helped his mother in lifting heavy wash tubs and furniture. Immediately after the incident in question he was not conscious of pain and was scared, but the next morning “ * * * when I started to get out of bed I couldn’t hardly get up. My back was hurting, just from down my neck and shoulders and down in my back.”

His father corroborated his condition and the witness, Jerry Richardson, testified he later worked with Harold, that he had difficulty with manual work, suffered pain in doing heavy lifting, and that the other boys working in the seismograph crew knew of his physical difficulties and they all tried to help him.

His father sent Harold to Dr. Jones at Brownfield. He found objective symptoms of tenderness in the lower part of his neck, in the back and inside his right shoulder blade. He prescribed a combination tablet for muscle relaxant and a pain-killer combined, and during the period between the accident and the trial saw him in office calls more than twenty-five times. He also gave him ultra-sonic treatments and sent him to a well-known orthopedic surgeon in Lubbock, Dr. R. Q. Lewis, who X-rayed him and recommended physical therapy. Dr. Lewis saw him four times and Dr. Jones continued to examine him through September 22, 1965. On September 3, 1965, he found he was still having muscle spasms in the dorsal area.

Special Issue No. 11 inquired of the jury what sum of money would reasonably compensate Harold Bolen for his injuries, if any, proximately caused from the accident in question, to which they answered, “None.” The jury was told they might take into consideration physical pain and suffering, if any, in the past, up to the present, and any he would reasonably and probably suffer in the future. They were instructed the same with respect to mental anguish.

Rule 328, Texas Rules & Civil Procedure, provides, inter alia, that: “New trials may be granted when the damages are manifestly too small or too large. * * sjc a

The Dallas Court of Civil Appeals in Berry v. Lowery, Tex.Civ.App., 266 S.W.2d 917, 921 has quoted with approval the following statement:

“ ‘ * * * though the amount of damages is ordinarily left to the discretion of the jury under the evidence before them, yet they cannot ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. (Citing cases.) In the instant case the verdict was manifestly wrong under the evidence, and the court should have granted a new trial.’ ”

The Supreme Court of Texas in the same case, after granting a writ, held: “The answer of the jury that she suffered no damages is not only unsupported by any evidence, but is directly contrary to all the evidence.” Exactly the same may be said to be true in the instant case.

Appellee seeks to distinguish the instant case from LOWERY on the theory that the child in that case suffered unquestionably serious injuries. We do not believe a quantitative basis is a fair ground upon which to distinguish the cases, where all the evidence shows Harold did suffer physical pain and at least some mental anguish as a result of the rear-ending. It is ordinarily the prerogative of a jury to set the amount of damages but they have no authority to completely ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. Berry v. Lowery, supra.

The judgment of the trial court is reversed and remanded.

      . Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795.


author: MASSEY, Chief Justice.

text:
    Alvin B. WALKER, Appellant, v. Cloyd J. CHAMBERS, Appellee.
    No. 16765.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 21, 1966.

      W. B. Pope, Dallas, for appellant.
    John H. Chambers, Arlington, for ap-pellee.
   OPINION

MASSEY, Chief Justice.

In Alton R. Fairchild, Inc. v. M-P Cotton Felt Company, 403 S.W.2d 527 (Fort Worth Civ.App., 1966, no writ hist.), we said:

“A suit properly brought under provisions of Texas Rules of Civil Procedure, rule 185, ‘Suits on Sworn Account’, has almost become qualified as one which is sui generis in instances where the defendant in such a suit fails to file a sworn denial within the provisions of said Rule and of T.R.C.P. 93, ‘Certain Pleas to be Verified’.

“In said cases, and as applied to the right of the plaintiff to judgment upon the account when he and the defendant have announced ready for trial (assuming no counter-claim, etc., plead by the defendant and upon which he would have the burden of proof) it has been aptly stated that the defendant’s only weapon ‘is a short stick —too short’.

“Such is the situation presented on the instant appeal. The plaintiff’s case was made out on a suit fully qaulified as a suit on sworn account, under the provisions of T.R.C.P. 185, when the case was brought to trial and the defendant was ‘caught’ with an unsworn general denial as its only defensive pleading.”

The same thing would apply when like conditions exist upon initiating proceedings constituting the “hearing” of such a plaintiff’s motion for summary judgment under provisions of T.R.C.P. 166-A, “Summary Judgment”. In other words, if the defendant is “caught” at such time with an un-sworn general denial as his only defensive pleading, judgment for the plaintiff is proper. The same would be true though the defendant had filed a sworn denial if it did not state that plaintiff’s claim is not just or true, in whole or in part, Kost Furniture Co. v. Radio Equipment Co., 100 S.W.2d 162 (Amarillo Civ.App., 1936, writ dism.).

This is the situation in the instant appeal, and we are obliged to affirm the judgment of the lower court.

Affirmed.


author: BARROW, Justice.

text:
    WEST TEXAS PRODUCTION CREDIT ASSOCIATION, Appellant, v. HARDING CHEMICALS, INC., Appellee.
    No. 14519.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1966.
    Rehearing Denied Nov. 19, 1966.

      Naylor & Harrison, Pecos, for appellant.
    Hill D. Hudson John P. Dennison, Pecos, for appellee.
   BARROW, Justice.

Appellee, Harding Chemicals, Inc., brought this suit against appellant, West Texas Production Credit Association, to recover on an open account for insecticides applied on farms owned and/or operated by Paul Durckel. Judgment was entered for appellee after a jury trial. The primary question is whether appellant agreed to assume primary responsibility for this account, based on consideration sufficient to remove its promise to pay Durckel’s account from the Statute of Frauds.

In Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962), the Supreme Court, after full consideration of the difficulty presented in setting forth clear rules for determination of this question, recognized three tests to be considered:

1. Was there a promise of primary responsibility to pay, or was there a promise of suretyship ? If the words used are not clear and are susceptible of more than one meaning, the question of intent to be primarily responsible for another’s debt is one for the finder of facts, taking into account all the facts and circumstances of the case, including the words used by the promisor.
2. Was there sufficient consideration to support the promise to pay? There must be sufficient consideration to make any promise a binding and enforceable one.
3. Was the consideration such as to remove the promise from the Statute of Frauds? The “leading object” or “main purpose” rule is expressly adopted — that is, the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own.

West Texas Production Credit Association is an organization composed of farmers and ranchers in a five-county area engaged in the business of lending funds to finance farming operations. Harding Chemicals, Inc., sells and applies insecticides on farms in this area. Early in 1963, the PCA loan committee approved Durckel’s application for two loans, aggregating over $100,000, to finance his 1963 cotton crop. The loans were secured by a chattel mortgage on the crop and equipment, as well as by a prior deed of trust on Durckel’s land. These loans were based upon a proposed budget which included $8,000 for insecticides for the crop. In August an additional $19,000 was added to this loan for insecticides, due to heavy infestation of in sects in that area. In July, 1963, Durckel contacted Mr. Harding, president of appellee, and requested insecticides to be applied on his crop from time to time. Harding advised Durckel he would let him know that afternoon. In the meantime Harding contacted Mr. Gillespie, general manager of PCA, and this suit is predicated upon this and one subsequent conversation between these two parties who were the only witnesses at the trial.

Appellee’s case is based upon the following testimony of Harding: “I asked him if he was financing Mr. Durckel and he said that he was. And I asked him if his financing was adequate for his insecticide program and he said it was. And I told him that I would apply these insecticides if I could look to him for my money; that I didn’t want anything to do with Mr. Durckel, that I never had done business with him and didn’t intend to do any. And that I was going to look to him for my money.

“Q All right. Did he give you assurance that you could look to him for your money ?
A He did.
Q Did you rely upon that?
A Yes, sir, I sure did.”

In response to direct questions asked him on several occasions, Harding testified that Gillespie never specifically stated that PCA would pay the account, but rather used words like: “We’re going to put the money out,” and “We’re going to have to protect the money we’ve already got in this crop.”

Subsequent to the above conversation, Harding notified Durckel that appellee would handle his insecticide program. Insecticides were applied on several occasions in July and August by appellee, as requested and directed by Durckel. The invoices were made out to Durckel without any reference to PCA, although Harding testified that statements went to PCA with copy to Durckel. On August 12, 1963, a check drawn on the Paul Eurckel Farm Account and signed by him was mailed to Harding in a PCA envelope in payment of the July account. On September 10, 1963, a similar check signed by Durckel was sent in payment of the August account. Shortly thereafter Harding again contacted Gillespie to “thank him for the checks.” Gillespie did not deny that the checks came from him.

Harding testified relative to this second conversation: “I asked him if he (Durckel) would be financed for the next month and he assured me that he was adequately financed.” Again, he admitted that Gillespie did not specifically agree to pay the account, but in effect assured him that Harding would receive a check. He testified: ■“What it amounts to, he was going to see that I got my check just like I had the previous.” Harding testified that in reliance on the assurance by Gillespie that the account would be paid, insecticides were applied on Durckel’s farm on several occasions in September and October, as directed by Durckel. The invoices were again made out to Durckel. The account was not paid, and this suit was filed.

It is our opinion that a fact issue is raised as to whether PCA intended to be primarily responsible for Durckel’s debt to appellee. Clearly this was the intention of Harding. On the other hand, the facts and circumstances would support a conclusion by the jury that Gillespie intended for ap-pellee’s account to be paid by Durckel from the funds which PCA loaned to Durckel for payment of all obligations incurred in raising his 1963 cotton crop. Gillespie denied any promise to be primarily liable. This disputed fact issue should have been submitted to the jury for its determination. Gulf Liquid Fertilizer Co. v. Titus, supra; Shahan-Taylor Co. v. Foremost Dairies, Tex.Civ.App., 233 S.W.2d 885, wr. ref. n. r. e.

An issue presenting this controverted fact was not submitted to the jury. This case was submitted to the jury, over appellant’s objections, in the form used for submission of a fraud case. The jury found substantially: 1. PCA represented in advance to Harding that it would pay Harding for the insecticides applied upon Durckel’s cotton crop for the months of September and October. 2. Harding relied upon such representation. 3. Harding applied such insecticides in reliance upon such representation. PCA objected to these issues as not being ultimate issues. It also requested issues as to whether PCA agreed it would pay Harding for the debt of Durckel and if PCA intended to be primarily responsible for Durckel’s debt. These issues, which are in substantially the form suggested by Titus and Shahan-Taylor Co., were refused.

It cannot be said from this record that Harding, as a matter of law, has established that PCA intended to be primarily responsible to appellee for the application of insecticides to Durckel’s crop. Nor did appellee meet its burden by securing a jury finding to this effect. In view of PCA’s objection to the form of issues as erroneously submitted, as well as by its tender of issues in substantially correct form, there is no basis for remand of the case. Cf. Scott v. Liebman, 404 S.W.2d 288 (Tex.1966). This leaves PCA’s promise within the Statute of Frauds. It is therefore unnecessary to consider whether such a promise was made by PCA for the main object of subserving some purpose of its own.

The judgment of the trial court is reversed and here rendered that Harding Chemicals, Inc., take nothing by its suit against West Texas Production Credit Association.

      . Sec. 2, Art. 3995, Vernon's Ann.Oiv.St., provides substantially that no action shall be brought in any court to charge any person upon a promise to answer for the debt, default or miscarriage of another unless the promise be in writing.


author: RENFRO, Justice.

text:
    John E. DAUGHERTY et al., Appellants, v. Johnnie McDONALD, Appellee.
    No. 16767.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 28, 1966.

      Joe J. Johnson, Joe J. Johnson, Jr., John E. Daugherty, Fort Worth, for appellants.
    L. Clifford Davis, Fort Worth, for ap-pellee.
   OPINION

RENFRO, Justice.

The plaintiff, Johnnie McDonald, sued John E. Daugherty and others to cancel an agreement of employment and power of attorney executed by plaintiff and Daugherty on August 16, 1963. For convenience, Daugherty will be referred to as defendant.

A jury found, in answer to issue No. 1, plaintiff did not on August 16, 1963, have sufficient mental capacity to understand the nature and effect of his act and the business he was transacting, and, in answer to issue No. 3, plaintiff did not, at a time when he had recovered his mental capacity, ratify said contract.

Judgment was rendered for plaintiff on the verdict.

On appeal defendant contends in his first point of error that the finding of incompetency should have been set aside and judgment non obstante veredicto rendered for him; that the finding was against the great weight and preponderance of the evidence; and in his second point contends there was no evidence to support the jury’s finding that plaintiff did not ratify the agreement of August 16, 1963.

The contract in issue, dated August 16, 1963, gave defendant authority, among other things, to bring suit to recover for plaintiff a farm located near Mansfield in Tarrant County.

As presented in the brief of defendant, the first point must be treated as a no evidence point on the finding on incompetency, as well as a contention the finding was against the great weight and preponderance of the evidence. The second point, on ratification, is a “no evidence” point of error.

In considering the “no evidence” point we of course are concerned only with the question whether there is any evidence of probative value to support the verdict, and must of course accept the evidence and permissible inferences therefrom most favorable to the verdict, and disregard all evidence and inferences favorable to the defendant. Missouri-Kansas-Texas Railroad Co. v. Montgomery, 323 S.W.2d 360 (Tex.Civ.App., 1959, ref., n. r. e.); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943). To determine whether a finding is against the great weight and preponderance of the evidence, we consider all the evidence in the case.

The following is a summary of the evidence as it applies to both points of error.

It is undisputed that plaintiff, an elderly man, never learned to read and could write only his name. Following a stroke sustained on August 12, 1963, he can no longer write his name but uses an “x” for his signature.

Plaintiff testified: he had a stroke on August 12, 1963. He could not remember whether he went to a hospital. He could not remember defendant visiting him on August 16; did not remember placing his mark on any instrument; he never told defendant to sue a man named Moore to recover the farm, and did not know such a suit had been brought; did not know defendant was paying any of his expenses; thought “people” were sending him money after his stroke; did not remember signing anything on August 16; after the stroke next thing he knew he was “down to the home” and did not know why he was there.

The contract of August 16, in the body thereof, recited that plaintiff was “completely illiterate * * * unable to write” and that plaintiff “on the 12th of August * * * suffered a paralytic stroke * * and (is) incapable of attending to any business or even sign his name any longer.”

Plaintiffs witness Weber, nursing home operator, testified plaintiff was admitted to the Home on August 21 and stayed ten or eleven days; plaintiff could not carry on an understandable or rational conversation; in his opinion plaintiff did not have sufficient mental capacity to understand an ordinary business transaction.

A clinic report from John Peter Smith Hospital shows that on August 13 notation was entered concerning plaintiff: “Senile & talks in grunts. Apparently had stroke 3 days ago. * * * ”

Witness C. M. Johnson, friend and business associate of plaintiff, testified: he took plaintiff to hospital on August 11; by the 13th plaintiff was physically and mentally worse; on August 16 plaintiff could not hear and could not talk; since plaintiff left the Weber Home witness had attended to plaintiff’s business; in his opinion plaintiff did not, on August 16, have súfficient mental capacity to handle a normal business transaction.

Defendant called as a witness Dr. Williams, who testified: he examined plaintiff at the Weber Home; plaintiff’s stroke was a severe one; his hearing was affected as was his ability to talk; he did not know plaintiff’s condition on August 16; when he saw plaintiff was of opinion he was mentally competent as of that time, but witness did not know whether at that time plaintiff could understand an ordinary business transaction; he saw plaintiff shortly before the trial of this case and the only advance he saw in plaintiff’s condition was the fact he could sit in a wheel chair.

For defendant, Wilkins, notary public, testified: he took plaintiff’s acknowledgment to the August 16 instrument, read the instrument to plaintiff, asked him if he was signing of his own free will. Plaintiff answered “yes” and that he understood it.

China Lewis, called by defendant, testified plaintiff could not talk after the stroke, that it was three months before plaintiff “come back to hisself and had a clearly decision about anything.”

Called by defendant, the witness Henderson testified plaintiff, “same week” as plaintiff’s stroke, told him defendant would look after the farm; he visited plaintiff every day, he could always talk; his opinion, as to plaintiff’s capacity to understand an ordinary business transaction, “Well, in my opinion he could. He could talk — he could answer.”

A welfare worker testified she could, during plaintiff’s convalescence, understand some things plaintiff said but she had to have help from plaintiff’s friends to understand all he said.

Witness Nelson, called by defendant, testified he saw plaintiff immediately after the stroke; plaintiff could talk; witness understood plaintiff and plaintiff understood him; plaintiff could understand ordinary business transactions; both he and defendant read the August 16 instrument to plaintiff, plaintiff said he understood it; plaintiff owed witness a $2,000 note and witness was a beneficiary in plaintiff’s will; no copy of the will (made at a later date) nor the contract was left with plaintiff “because he can’t read”; witness was asked of plaintiff, “Do you contend now (date of trial) that he’s incapable of handling his business ?” He answered, “Yes, sir — “He hasn’t recovered any?” “No, I don’t think he has.”

Witness Greenfield, called by defendant, identified a number of instruments pertaining to the farm. He was asked where he saw plaintiff following the stroke and answered that he saw him one time at his home and the other time at a rest home. Plaintiff was unable to talk at those times.

Defendant testified: he agreed in June of 1962 to take plaintiff’s case regarding the farm; he worked diligently on plaintiff’s affairs in an effort to salvage something for plaintiff; plaintiff had suffered a series of financial set-backs; upon hearing of plaintiff’s stroke he visited him; “It was really pitiful. He had a very bad stroke but he was glad to see me. He could talk but in a limited way on account of his paralytic stroke had affected the muscles of his throat, but he recognized me and we talked and I talked. * * * ” “What business matter did you discuss with him?” Answer: “The progress — first, the progress that had been made on getting his old age assistance raised. * * * Then the matter of the power of attorney which I had put off writing would have to be made as we had discussed on the basis of the terms we had discussed previously on many occasions. He agreed to that. I said then I would go and get it drawn up and bring it to see if it were satisfactory”; he dictated the instrument to a public stenographer on the 14th or 15th and took it to plaintiff on the 16th; plaintiff was in bed; he told plaintiff he had drawn up the power of attorney and “it gave me every possible power to act for him, every possible power as had been agreed on * * whereupon he asked plaintiff if he understood it and the plaintiff said “yes”, but he wanted Nelson to read it because he had been accustomed to having Nelson read; Nelson read it to plaintiff who said it was satisfactory, whereupon Nelson went for a notary; upon the arrival of the notary the instrument was signed by plaintiff with his “x” mark; the plaintiff seemed to understand the transaction very well. Defendant was asked, “Did you give Mr. McDonald a copy of any of the instruments that you had him sign?”, to which he answered, “No, sir. Why should I? Couldn’t read it or couldn’t keep it.” Defendant testified as to plaintiff’s condition as of August 16, “ * * * mentally he was sound and could tend to business through me.”

An attorney who was associated with defendant in the current law suit testified that he did not know plaintiff on August 16, but met him in December, 1963, talked with him and gained information which he used in a motion for summary judgment in another suit plaintiff had pending and that plaintiff executed the accompanying affidavit to the motion; that plaintiff told him he had signed a contract in August employing defendant.

Plaintiff’s testimony, to which we have heretofore referred, is in some respects vague and inconclusive. To some questions he gave three or more answers as “no,” “yes,” “I don’t remember.” His testimony, however, was consistent with his contention that he did not remember signing any of the instruments about which he was questioned.

It is within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923). It may accept part of a witness’ testimony and reject the remainder, if the facts of the case justify such action. Missouri Pacific Railroad Company v. Mendoza, 337 S.W.2d 622 (Tex.Civ.App., 1960, ref., n. r. e.). The trier of facts can accept in part and reject in part the conclusions of an opinion witness. The court will look to all the testimony of the witness to determine its legal sufficiency to support the findings of judge or jury that are essential to the case of the prevailing party. Travelers Ins. Co. v. Blazier, 228 S.W.2d 217 (Tex.Civ.App., 1950, dism.); Varnado v. City of Groves, 329 S.W.2d 100 (Tex.Civ.App., 1959, ref., n. r. e.); Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923) ; Henderson v. Smith, 354 S.W.2d 429 (Tex.Civ.App., 1962, no writ hist.).

In view of the evidence, we think defendant cannot seriously contend that issue No. 1 should have been disregarded. The court did not err in refusing to set aside the issue and render judgment non obstante veredicto.

We have read the statement of facts and exhibits. The evidence in the case does not support defendant’s contention that the finding that plaintiff did not have sufficient mental capacity to understand the nature and effect of his act in signing the instrument of August 16 was against the great weight and preponderance of the evidence.

This court has the power to grant a new trial where the finding of the jury or the court is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, but we are not authorized to substitute our judgment for that of the jury or the court simply because we might have reached a different conclusion on the facts. Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ App., 1952, no writ hist.); Continental Bus System, Inc., v. Biggers, 322 S.W.2d 1 (Tex.Civ.App., 1959, ref., n. r. e.); Donnell v. Acker, 343 S.W.2d 718 (Tex.Civ.App., 1961, no writ hist.); Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); 4 McDonald Texas Civil Practice, p. 1459, § 18.15; Rule 328, Texas Rules of Civil Procedure; Adams v. Houston Belt & Terminal Railway Company, 405 S.W.2d 838 (Tex.Civ.App., 1966).

Defendant’s contention there was no evidence to uphold the jury finding that plaintiff did not subsequently ratify the August 16 contract is also overruled.

Ratification, in a situation such as we have before us, may be either express or implied, but it must result from acts clearly evidencing an intention to ratify. To constitute ratification, the ratifying party must intentionally accept and agree to all material terms of the contract. Moreover, there can be no ratification without full knowledge of the facts that make the contract voidable. 13 Tex.Jur.2d, pp. 494-5, § 265.

Plaintiff testified he did not remember making his mark on the contract of August 16, did not remember agreeing to any such contract, and did not remember subsequent agreements or contracts. Defendant admitted he did not leave a copy of the contract with plaintiff. The jury heard all the witnesses and saw them as they testified. The jury, bearing in mind plaintiff’s evidence as a whole and the testimony of other witnesses, could believe plaintiff was never mentally competent to ratify. The evidence was such as to support a belief by the jury that plaintiff did not know he signed the contract. The jury could believe that plaintiff, based on evidence in the record, never knew of the contract and never did, if he did learn of it later, have full knowledge of the facts that made the contract voidable, or that he never regained sufficient mental competency to ratify.

The jury is not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same. See 24 Tex.Jur.2d, p. 357, § 705, and cases cited.

Since point two is a no evidence point we have not attempted to set out all the evidence and arguments of defendant on the question of ratification.

We might well have returned a different verdict had we been triers of the facts. We are aware, however, that “Whoever undertakes to determine a case solely by his own notions of its abstract justice, breaks down the barriers by which rules of justice are erected into a system, and thereby annihilates law.” Duncan v. Magette, 25 Tex. 245 (1860).

The jury has spoken and, in view of all the evidence before us and in the light of the cited authorities, we are not authorized to disturb its findings.

All points of error are overruled and the judgment affirmed.

Affirmed.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Leo GEE, Appellant.
    No. 51621.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 14, 1966.
    Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondent.
    No attorney for appellant.
   DONNELLY, Judge.

Defendant, Leo Gee, entered a plea of guilty to the charges of burglary in the second degree and stealing in the Circuit Court of New Madrid County, Missouri on November 24, 1964, and was sentenced to imprisonment for a term of five years for burglary and a term of five years for stealing, the sentences to run consecutively. Sections 560.070, 560.156, and 560.110 (references to statutes are to RSMo 1959 and V.A.M.S., and reference to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.).

On June 19, 1965, defendant filed in the Circuit Court of New Madrid County his motion to vacate or correct sentence under Rule 27.26. The Circuit Court of New Madrid County considered the motion on June 22, 1965, and overruled it without an evidentiary hearing. Defendant perfected an appeal to this Court.

Defendant asserts in his motion: (1) that he was held without bail for over twenty hours (in violation of Rule 21.11 and § 544.260, Rule 21.12 and § 544.040, and Rule 21.14 and § 544.170); (2) that he was deprived of the right to preliminary examination in the Magistrate Court of New Madrid County on the charge of stealing (in violation of Rule 23.02 and § 544.-250) ; (3) that he was denied the assistance of counsel (in violation of Rule 29.01); and (4) that he was deluded and induced to enter a plea of guilty (in violation of Rule 25.04).

The record shows that the complaint filed in the Magistrate Court of New Madrid County charged defendant with burglary in the second degree with intent to steal (§ 560.070) but did not charge defendant with stealing (§ 560.156). State v. Dooly, 64 Mo. 146. The information filed in the Circuit Court of New Madrid County charged defendant with burglary in the second degree and stealing. The record also shows that defendant was arraigned in the Circuit Court of New Madrid County and, without counsel, entered a plea of guilty to the charges of burglary and stealing. Defendant was not given a preliminary hearing on the charge of stealing. In fact, he was not charged with stealing until the filing of the information in the circuit court.

Application of general rules of law would cause us to hold that the fact, even if true, that defendant was held without bail for over twenty hours, cannot now be the basis for a collateral attack upon the judgment. State v. Keeble, Mo.Sup., 399 S.W.2d 118, 122; State v. King, Mo.Sup., 380 S.W.2d 370, 377. Further, the general rule would be that when defendant entered a plea of guilty, without making objection to the fact that he had not been charged with the offense of stealing in the magistrate court and had been given no preliminary hearing on the charge of stealing, he waived those requirements. State v. Richardson, Mo.Sup., 347 S.W.2d 165, 169; Tucker v. Kaiser, Mo.Sup., 176 S.W.2d 622; State v. Keeble, supra; State v. Shaw, Mo.Sup., 357 S.W.2d 894, 896 [3],

However, before these rules of law may be applied, it must first be ascertained whether the plea of guilty, which makes such rulés operable, was properly accepted, and entered. Defendant in his motion asserts that he was deluded and induced to enter a plea of guilty.

Rule 25.04 reads in part as follows: “The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.”

In State v. Williams, Mo.Sup., 361 S.W.2d 772, at 775, this Court stated: “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; see also State v. Hare, 331 Mo. 707, 56 S.W.2d 141; State v. Harris, 336 Mo. 737, 81 S.W.2d 319; State v. Hovis, 353 Mo. 602, 183 S.W.2d 147; State v. Blatherwick, 238 Mo. App. 1005, 191 S.W.2d 1021. 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 ?’ ”

Intertwined with the question of the validity of the plea of guilty is the question whether defendant should have been given counsel on arraignment.

In Hamilton v. State of Alabama, 368 U.S. 52, at 55, 82 S.Ct. 157, at 159, 7 L.Ed. 2d 114 the United States Supreme Court stated: “Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.” In Von Moltke v. Gillies, 332 U.S. 708 at 723 and 724, 68 S.Ct. 316, at 323, 92 L.Ed. 309, the United States Supreme Court stated: “We have said: ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does-not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses, to the charges and circumstances in mitigation thereof, and all other facts essential' to a broad understanding of the whole-matter. A judge can make certain that an accused’s professed waiver of counsel is-understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.”

Rule 29.01(a) reads as follows: “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-Counsel so appointed shall be allowed a reasonable time in which to prepare the defense.”

The proceedings at the time of arraignment, plea and sentence are not a part of the transcript in this Court and we assume they were not transcribed and made a part of the files and record of the case. See Rule 29.01(b).

In State v. Moreland, Mo.Sup., 351 S.W. 2d 33, at 35, this Court stated: “Motions filed pursuant to Supreme Court Rule 27.26 may be summarily disposed of by the circuit court when ‘the motion and the files and records of the case’ show that the petitioner is entitled to no relief, or when the only issue presented is one of law. State v. Jarrett, Mo.Sup., 317 S.W.2d 368; State v. Kitchin, Mo.Sup., 300 S.W.2d 420. However, the converse is also true, and when the files and records of the case do not conclusively refute the grounds for relief set forth in the motion, and the allegations of fact in the motion, if true, would authorize some requested relief provided for by the Rule, ‘the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.’ Supreme Court Rule 27.26.”

The trial court denied defendant’s motion without an evidentiary hearing. The motion, files and records of the case, as they appear in the transcript filed in this Court, do not conclusively show defendant is entitled to no relief. The accuracy or inaccuracy of defendant’s contentions are of material import in determining (1) whether defendant’s plea of guilty was “made voluntarily with understanding of the nature of the charge,” and (2) whether defendant “intelligently waived his right to have counsel” or failed to show indigency. Therefore, we hold that the order denying, without a hearing on its merits, the motion to vacate or correct sentence should be and is set aside and that the motion be heard on its merits. State v. Herron, Mo.Sup., 376 S.W.2d 192.

This cause is reversed and remanded for further proceedings consistent with the views herein expressed.

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Paul Wilbur DUNLAP, Appellant.
    No. 51829.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward P. McSweeney, Sp. Asst. Atty. Gen., Clayton, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   HIGGINS, Commissioner.

Appellant was charged by amended information in the Circuit Court of Boone County, September 23, 1965, with the felony of uttering a forged check in violation of Section 561.011, V.A.M.S. A jury found him guilty and assessed his punishment at three years’ imprisonment in the penitentiary. Sentence and judgment were rendered in accordance with the verdict.

Appellant says the evidence was not sufficient to support the verdict and that it was error, therefore, to deny his motions for acquittal.

The evidence, all from the State, warrants the following statement of facts: On October 22, 1964, Meredith Franklin Lee was the assistant manager of Eastgate IGA Foodliner, a corporation engaged in retail grocery business in Eastgate Shopping Center, 2000 East Broadway, Columbia, Boone County, Missouri. At about 7:30 p. m., appellant, Paul Wilbur Dunlap, tendered a check, Exhibit 1, in the words and figures following:

ALLIED WESTERN MUTUAL INSURANCE COMPANY 7816 Kansas City, Missouri
Date Oct. 20 / 64
PAY to the order of
The sum of $130 and 00 cts $130.00
John Ekstrom
ALLIED WESTERN MUTUAL INSURANCE COMPANY s./ Joseph A Pawlow.”
Insurance Claim # 1674

Appellant, with Lee watching, endorsed the check “John Ekstrom, Green Valley Drive.” Although requested by Lee to produce identification, appellant showed none and excused himself by saying his wallet containing identification had been stolen and that the check was an insurance recovery for the loss of his television set which he said had been stolen at the same time. Nevertheless, Lee cashed the check and gave appellant $130 in currency “because Green Valley Drive is right near the store.” As appellant left the store Lee also noted on the check the license number on the 1957 or 1958 model blue and white Chrysler in which appellant rode as a passenger. He later gave this information, together with a physical description of appellant to the police. The check was presented for payment to Eastgate’s bank, Columbia Savings Bank, which returned the check unpaid. The drawee bank, Baltimore Bank, never honored the check, and Eastgate has never received any repayment of the $130 given to appellant for the check. Upon its return, the check bore a notation on its face and by a slip attached by Baltimore Bank, “Refer to supt. of insurance.” After taking the check Lee, later that night, checked the telephone book for Ekstroms and found no John Ekstrom. The only Ekstrom was shown at a different address. After the check was returned without payment, Lee made several trips to Green Valley Drive seeking John Ekstrom. There are but seven or eight houses there and he never located a John Ekstrom.

Joseph A. Pawlow, the purported signatory for the purported drawer of the check, an examiner in the Missouri Insurance Department, examined the Allied Western Mutual Insurance Company in Kansas ■City in February to June, 1964, after which, in late June, 1964, the company was placed in receivership with the superintendent of insurance as receiver. The company was in receivership and not doing business on October 20, 1964, the date of the check in question and a time when only the superintendent of insurance could sign its checks. Joseph A. Pawlow had no authority to execute checks for the purported drawer and he neither signed, used a rubber stamp, nor authorized the placing of his signature or a stamp on the check in question. He formerly had been with Jefferson Mutual Fire Insurance Company in St. Louis and had a rubber stamp signature there. He was not with Jefferson after September 1958 and, even though Allied took over Jefferson, Allied acquired no authority to use Pawlow’s rubber stamp which he had not seen since September 1958. During the receivership Allied’s manager unsuccessfully .tried to raise money to redeem the company. The check purported to have been drawn by Allied as a claim check was not of the type used for claims by the company or its local .agents despite a reference to claim on its face. Pawlow knew of no John Ekstrom or of any policy or claim such a person might have had against Allied. He knew ■ of no other Joseph A. Pawlow in Missouri. Pawlow had become aware at trial time that a stamp of his signature had been used without authority on other Allied checks, and that prior to receivership, someone within Allied had been diverting funds from the company.

Instruction No. 8 submitted the case against appellant. It is not questioned by appellant; it required findings of all the elements of the crime of uttering a forged instrument in violation of Section 561.011, supra, and the foregoing statement warranted the submission. State v. Garrison, Mo., 305 S.W.2d 447; State v. Forbus, Mo., 332 S.W.2d 931. The evidence warranted findings that appellant, on October 22, 1964, in Boone County, Missouri, uttered a forged check which purported to have been drawn by Allied Western Mutual Company, by Joseph A. Pawlow, to East-gate Foods, Inc., by forging an endorsement purporting to be that of a John Ek-strom ; that the check was a forgery because the purported drawer had no authority to execute the check by stamp or signature; that appellant knew the check to be forged and false and uttered it as true by forging the endorsement of John Ekstrom to defraud Eastgate Foods, Inc., of $130 given by Eastgate for the check in reliance on its genuineness.

Appellant argues, however, that the evidence did not make out a forgery because appellant may well have had John Ek-strom’s permission and authority to endorse his name and appellant may have been using that name. He relies on the statement that “a person may assume a different name from his true one and may make contracts under his fictitious name.” State v. Euge, Mo., 400 S.W.2d 119, 122 [2]. This argument overlooks the evidence that appellant was identified by Lee as the person who endorsed the check “John Ekstrom, Green Valley Drive,” and Lee’s failure to find appellant or any John Ekstrom in the limited area encompassed by seven or eight houses on Green Valley Drive, the address where appellant represented that John Ekstrom lived. Such was sufficient to authorize submission to the jury of whether John Ekstrom was in fact false and fictitious. State v. Thompson, 318 Mo. 623, 1 S.W.2d 151, 153 [1].

Cases cited by appellant, although accurate on their facts, do not support his position: State v. Robinson, Mo., 255 S.W.2d 811, held that one charged with bogus and no-funds checks in violation of Section 561.450, V.A.M.S., could not be convicted where the proof showed only the giving of an insufficient-funds check; State v. Scott, Mo., 230 S.W.2d 764, held that a no-funds check charge under the same statute could not be sustained without proof that defendant had no funds in his account when he wrote his check; State v. Griggs, Mo., 236 S.W.2d 588, held that proof of giving a no-funds check would not support conviction under charge of obtaining money under false pretenses.

Part of the closing argument by the prosecuting attorney follows:

“If Paul Dunlap uses the name John Eckstrom, or if there is a John Eckstrom, or if Allied Western Mutual had this claim, why didn’t the Defense put some evidence on here today to show you that? Don’t you think they would have if they could ? * * * Gentlemen, don’t you think that they would? You haven’t heard one scintilla of evidence from the defense in this case.” Appellant contends it was error to refuse his motion for mistrial directed at this argument on the ground that it constituted prejudicial comment on appellant’s failure to testify in violation of the Missouri and United States Constitutions, Section 546.270, V.A.M.S., and Criminal Rule 26.08, V.A.M.R. See also Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, which struck down a statute which permitted comment on an accused’s failure to testify.

The constitutional provisions protect one from being compelled to testify against himself in a criminal prosecution; the statute and rule provide that “If the accused shall not avail himself * * * of his * * * right to testify, * * * it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, * * Such provisions have been held not to have been violated by arguments similar to the one in question, e. g.: State v. Varner, Mo., 329 S.W.2d 623, 633 [18], “* * * they have offered no defense to you”; State v. Perkins, Mo., 382 S.W.2d 701, 705, “And the only evidence in the case is the evidence that the State produced * * * You have the duty to find out through your deliberation based on the evidence, the only evidence produced was the State’s evidence, whether or not he is guilty — * * * If you were accused of murder * * * and you were innocent of that crime and could prove that you were innocent of that crime, wouldn’t you do it ?” ; State v. Michael, Mo., 361 S.W.2d 664, 666, “ * * * when the state had concluded its evidence in this case the defendant [defense] was free to offer any evidence it chose and none was forthcoming” ; State v. Hayzlett, Mo., 265 S.W.2d 321, 323, “When the State closed the evidence, what did the defense offer? They offered no evidence at all.” Under this sampling of the authorities the present argument is no more than the equivalent of saying that the evidence, all of which came from the state, stands without contradiction or dispute from the defense, which does not constitute error. State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, 95 [8, 9]. Nor is the statement comparable to the prejudicial reference in State v. Dupepe, Mo., 241 S.W.2d 4, 7 [6], “He * * * has absolutely nothing to talk about in this case. He has no evidence. The defendant has not even testified.”

Those matters for which no assignment of error is required have been examined as required by Criminal Rules 28.02 and 28.08, V.A.M.R. The amended information is sufficient and in proper form; the defendant stood trial upon his plea of not guilty; the verdict is in proper form and responsive to the issues and the punishmént is within legal limits; defendant’s motion for new trial was considered and allocution was granted. In addition, defendant had the benefit of counsel throughout his trial, in preparation of his motion for new trial, upon allocution, and upon this appeal.

The judgment 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.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James Morley TAYLOR, Appellant.
    No. 51776.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    William J. Shaw, Charles R. Abele, Clayton, for appellant.
   HOLMAN, Presiding Judge.

Defendant was charged with the offense of robbery in the first degree by means of a dangerous and deadly weapon. See §§ 560.120 and 560.135 (statutory references are to RSMo 1959, V.A.M.S.). The amended information also charged a prior felony conviction under the provisions of § 556.280. The. jury found defendant guilty as charged and the court fixed his punishment at imprisonment in the penitentiary for a term of five years. Defendant has duly appealed from the judgment.

There is no contention on this appeal concerning the sufficiency of the evidence and hence a brief statement of facts will suffice.

The alleged robbery occurred at about 1:30 a. m. on January 17, 1965, in Wellston, St. Louis County, Missouri. The prosecuting witness, Taylor Williams, was a cab driver. Defendant entered the cab at 4439 St. Ferdinand Avenue in the City of St. Louis and sat in the rear seat. Another passenger, Margaret Carter, was riding in the front seat. Defendant directed Williams to take him to 6311 Page Boulevard. When the cab arrived at a point a short distance from 6311 Page, defendant exhibited a gun and demanded money, threatening to “blow their brains out.” Williams gave him $37.00. Defendant directed Williams to stop the cab and he got out and disappeared down an alley. About two weeks later Williams identified a picture of defendant at police headquarters. Defendant was arrested and Williams identified him from his appearance and Mrs. Carter identified him by his voice.

The first contention of defendant relates to the alleged error of the court in the answer it gave to a question submitted by the jury after it had started deliberations. After the case had been submitted to the jury it sent the following written question to the court: “Instruction No. 1 states that the charge is with a loaded automatic pistol. If we do not believe the evidence showed a loaded pistol or an automatic pistol, should we find the defendant not guilty as charged?” The court sent back the following written answer: “The question is irrelevant.” The defendant’s attorney objected to the answer, but the trial judge tacitly overruled the objection by explaining to the attorneys (out of the presence of the jury) that he considered that the question as to whether the gun was loaded or was an automatic was irrelevant because those facts were not essential elements of the charge.

The defendant failed to mention the foregoing occurrence in his motion for a new trial. On this appeal, however, he has briefed the point and asks that we review it under the provisions of S.Ct. Rule 27.20(c), V.A.M.R., which reads as follows: “Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.” We will accordingly consider the incident and determine whether it resulted in “manifest injustice.”

As indicated by the court, the question as to whether the gun was loaded was not an essential element of the offense. It was not necessary to plead, prove, or submit that fact issue. State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113 [2]; State v. Martin, Mo.Sup., 346 S.W.2d 71 [2], It would also seem to be immaterial whether the weapon used was an automatic or some other type of pistol. There was no direct evidence that the gun was an automatic or was loaded. The only evidence from which such facts might be inferred was the testimony of Williams and Mrs. Carter concerning a noise they heard in the back seat. Although poorly described, we think they were attempting to testify that the noise sounded like that made by an automatic pistol when a shell is being injected into the chamber.

Instruction No. 1 required that the jury find that the offense was committed “by means of a certain weapon, to-wit: a loaded automatic pistol.” The obviously alert and capable jury was understandably concerned about its duty to find those facts upon which there was, at best, very unsatisfactory evidence and hence the question followed.

The question submitted by the jury brought to the attention of the trial judge the fact that his main instruction had required a finding of nonessential facts upon which the evidence was doubtful. He sought to correct that error by stating to the jury, “The question is irrelevant.” We do not think the meaning of that answer was clear. While the question related to nonessential facts, the question itself was very relevant when considered from the standpoint of the jury in performing its function. Moreover, the practice of exchanging communications between the jury and the trial court is not commended. State v. Taylor, Mo.Sup., 336 S.W.2d 495 [7]. We think an appropriate procedure the trial court could have followed would have been to (1) bring the jury into the courtroom, (2) withdraw instruction No. 1, (3) correct that instruction in the respects here under consideration or prepare a new one so doing; (4) read the corrected or new instruction to the jury, and (5) deliver the instruction to the jury and resubmit the case. State v. McNabb, Mo.Sup., 267 S.W. 606 [6]; State v. Mace, Mo.Sup., 278 S.W. 718 [5],

While we do not approve of the contents of the court’s answer nor the procedure followed, we have nevertheless concluded that the defendant was not prejudiced by the incident. The most unfavorable interpretation (to defendant) that the jury could have placed upon the answer was that it was not required to find the facts concerning which it,inquired. That is in accordance with the law, and since the entire matter concerned nonessential facts we rule that no “manifest injustice” resulted therefrom.

The remaining point briefed relates to the testimony of St. Louis City Police Officer William Franklin. The answers complained of appear in the following:

“Q Did you have an occasion on or about February 4th to place him under arrest? A I did.
“Q Will you tell the Court for what purpose ?
“A Fugitive from justice.
“Mr. McNary: I object to that, your Honor, as not being relevant — ”

The following occurred at the bench of the Court, out of the hearing of the jury:

“Mr. McNary: Defendant will object to the question for the reason it calls for testimony involving another crime.
“The Court: What do you anticipate his answer to be?
“Mr. Koslow: The State anticipates his answer to be he was arrested as a fugitive from St. Louis County.
“Mr. McNary: On this charge?
“Mr. Koslow: On no charge, just fugitive from St. Louis County.
Mr. McNary: I object to that, I don’t know if it is another crime or not. They may take it as another crime.
“The Court: He may answer.”

Counsel then returned to the counsel table and the following proceedings were heard within the hearing of the jury:

"Q (by Mr. Koslow) : You may answer.
“A I arrested him as a fugitive from St. Louis County.”

Defendant says the answer, “fugitive from justice,” was prejudicial because it would mislead the jury into thinking that defendant had attempted to flee in order to escape punishment; also that it may have indicated that he had committed another crime.

We have concluded that the testimony in question did not constitute reversible error. The contention that the ruling was erroneous because the answer implied that defendant was attempting to flee is not preserved for appellate review because that reason was not presented to the trial court at the time the objection was made. State v. Brown, Mo.Sup., 360 S.W.2d 618 [8]. -Moreover, we do not think the jury would construe the answer as indicating that defendant had committed another crime. We think it is more likely that the jury would consider that the city policeman arrested defendant at the request of the St. Louis County police department as a part of its investigation of the offense in question.

There is another reason why those answers do not require a reversal. The first answer was made before objection. While an objection was thereafter made there was no motion to strike. An obj ection made after the answer is úntimely and, in the absence of a motion to strike the answer, the ruling of the trial court is not preserved for review. State v. Velanti, Mo.Sup., 331 S.W.2d 542 [7]. The two answers had substantially the same meaning. Since defendant cannot complain of the first answer, the admission of the second answer would be harmless error even if we assume that it was inadmissible. State v. Ransom, 340 Mo. 165, 100 S.W.2d 294 [4].

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

The judgment is affirmed.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Charles Edgar CORY, Appellant.
    No. 52067.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   BARRETT, Commissioner.

On February 5, 1937, in the Circuit Court of Newton County, Charles Edgar Cory, with three prior felony convictions, was found guilty of robbery in the first degree by means of a dangerous and deadly weapon and a jury fixed his punishment at ninety-nine years’ imprisonment. In the trial of his case Cory was represented by Mr. A. H. Garner then a member of the Joplin bar. While it appears from the record in that case that Mr. Garner was a lawyer of Cory’s choice, he stated in one of the papers filed in that case that Mr. Garner “received only personal property of the value approximately $50.00 for his services” and that despite having a lawyer of his choice he was nevertheless indigent and asked leave to “prosecute his appeal as a poor person” including, under the then applicable statute (RSMo 1929, § 11722), a free transcript. Upon a hearing of the motion to prosecute the appeal as a poor person the circuit court “over-ruled” the motion and under the practice then prevailing (State ex rel. Miller v. Smith, Mo.App., 120 S.W.2d 184; State v. Jordan, 353 Mo. 405, 182 S.W.2d 563) Cory’s appeal was prosecuted on the record proper only, no brief was filed, he was not represented by counsel and there being no error upon “the record proper” his conviction was affirmed by this court in 1938 in State v. Cory, Mo., 123 S.W.2d 541. In that case he filed a motion for a rehearing supported in part by an affidavit from his lawyer, stating that the “trial court has agreed to permit a full transcript of the testimony * * * at the expenses of the county if same will be considered by this court, and states that if such record was available, there is such conflicting testimony in said record as to warrant a rehearing in this cause.” The motion for rehearing was overruled on December 20, 1938.

And now on December 22, 1965, by employed counsel he instituted this 27.26 proceeding to set aside the ninety-nine years’ sentence affirmed in 1938. In his present motion he alleges his indigency in 1937, that he was unable to secure and pay for a transcript and he says “That there existed in defendant’s trial and for appeal, substantial questions of law and fact, and that if said questions had been presented to the appellate courts along with the transcript of testimony, defendant’s said conviction may well have been reversed and defendant believes said conviction would have been reversed.” There was a hearing upon this motion, the extant court records in the original trial including his wholly inadequate motion for a new trial were placed in the record, and Cory’s counsel offered to prove that in 1937 Cory was indigent. The judge found that in his original trial and appeal the defendant then and now “was represented by attorneys of his own choosing,” the court also considered two other 1946 proceedings involving Cory and his original case, one in the Circuit Court of Newton County and the other in the Circuit Court of Cole County, finally determined in this court en banc on November 10, 1947 and February 9, 1948, State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, and in conclusion found that “(t)here appears to be no error that affects the validity of the judgment and sentence” and therefore denied the motion to vacate.

Upon this appeal it is urged that RSMo 1929, § 11722 (RSMo 1959, § 485.-100) as applied by the trial court was a denial of due process and equal protection under both the state and federal constitutions. And it must be conceded, particularly since the original trial was of a capital offense (RSMo 1959, §§ 560.120, 560.135) “that ⅛⅞ state, upon a timely request, must furnish an indigent defendant in a criminal case with a record on appeal which is sufficient for an adequate appellate review of his conviction.” Patterson v. Medberry, 10 Cir., 290 F.2d 275, 277; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. The difficulty with the appellant’s position upon this appeal as urged by his counsel is that, perhaps unwittingly, he has in point of fact had an “adequate appellate review” of all matters that would have entitled him to a new trial in his original case.

As noted, the only allegation or statement in his motion to vacate which he says necessitated a transcript was that “substantial questions of law and fact” existed and that these would have necessitated a new trial. His counsel does not state just what these “questions” were and his original motion for a new trial which he has made a part of this transcript, with possibly one exception, out of ten, to be noted subsequently, is entirely inadequate in point of fact as well as within the meaning of the rules and statutes applicable then and now (RSMo 1959, § 547.030; Criminal Rule 27.20, V.A.M.R.) to present a reviewable question in an appellate court. And no place in the brief and argument here is it asserted that there was any matter in the trial of his original case entitling him to a new trial, thus he is asserting the bare technical right, an abstraction without a showing of manifest injustice or prejudicial error in his original trial. State v. Maness, (No. 51503), Mo., 408 S.W.2d 15; Fennell v. United States, 10 Cir., 339 F.2d 920, cert. denied 382 U.S. 852, 86 S.Ct. 100, 15 L.Ed. 2d 90. In the transcript of this case there is an affidavit by Cory, dated February 4, 1966, in which he says that a transcript in his original appeal would have revealed that “He was not identified as being the guilty person, and the evidence against him consisted of testimony by Deputy Hanse regarding tracking the automobile of this defendant seven miles on a blacktop road the day after the crime and testimony that he found the word ‘Kuhn’ written on a five dollar bill found in defendant’s possession, although the victim, Mr. Kuhn, testified he knew nothing about his name being on any of the money allegedly taken from him.” He also alleged that he was held incommunicado for five days in Joplin before being transferred to Neosho. It is nowhere claimed or pointed out that his being held incommunicado was connected with any matter prejudicial to him so as to invalidate the original judgment. State v. Keeble, Mo., 399 S.W.2d 118; State v. Gilliam (No. 51845), Mo., 408 S.W.2d 21. Cory’s 1966 affidavit asserts no more than a conflict in the testimony, a problem in credibility of witnesses and evidence, and is not a matter that would entitle him to relief in a 27.26 proceeding. State v. Turner, Mo., 353 S.W.2d 602.

Other matters in the records and files negate Cory’s right to relief in this 27.26 proceeding. As stated he is represented by counsel of his own choosing in this proceeding. There is in fact no claim of error in his original trial other than the mere allegation that under the procedure then obtaining he was denied a transcript. But aside from this another factor relied on by the court for denial of relief in this proceeding is the report of his two habeas corpus proceedings in 1946 and 1947. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268. Incidentally, in those proceedings he was also represented by counsel of his own choosing, in this court by three veteran lawyers, one of whom, a former state senator, was well known for his success and experience in defending criminal cases. In any event those two proceedings were consolidated in this court and the reported case and its two files furnish other facts and circumstances for this court’s consideration. One of the circumstances overlooked by Cory and his present counsel is that in his Cole County habeas corpus case “(t)he amendment of the return has been made, and Cory’s evidence is before us.” 208 S.W.2d 1. c. 277. In the first place, in those proceedings Cory’s claim was that his robbery conviction was illegal and void and that he had been denied due process “in that he had not been accorded an adequate opportunity to prepare and present his defense.” It was repeatedly pointed out in the opinion that in the robbery case Cory had been represented by “a lawyer of his own selection,” even though he may have been inadequately compensated for his services. It was pointed out that in the robbery case there was no application for a continuance or a complaint of lack of time for preparation “until he had risked the issue and filed a motion for new trial after an adverse verdict.” 208 S.W.2d 1. c. 276.

To support his claim of lack of time for preparation Cory said that on the way to his own trial “I thought I was going up to be a witness for this fellow (Arthur Bailey) that was charged in the same charge with me, come up here with me.” But more important is the fact that his testimony in the habeas corpus case in 1946 reveals that his defense to the robbery case was an alibi and his claim of prejudice and injury was that due to an unprecedented snowstorm on the day of the trial he was unable to secure the presence of witnesses, “plenty of them,” other than his father and mother and himself to his defense of alibi. And again, had the unnamed witnesses been available their testimony at best would have been cumulative and as to the principal charge and his guilt or innocence presented no more than a testimonial conflict, which of course is not a proper subject for a 27.26 proceeding. State v. Turner, Mo., 353 S.W.2d 602. "Defendant contends that the evidence conclusively established the presence of the defendant elsewhere at the time of the commission of the alleged defense, (sic). Defendant testified that he was at his home throughout the entire morning of the robbery, performing household tasks such as painting floors, moving furniture and hanging curtains. In this he was corroborated by his parents, brother, girl friend and a tenant in the building. We cannot, however, say that the defense of alibi was ‘conclusively established’ by the evidence given in behalf of defendant. It was within the province of the jury to disbelieve defendant and the several witnesses by whom he sought to establish an alibi. * * * The evidence sustained the conviction as against the defense of alibi.” State v. Reece, Mo., 324 S.W.2d 656, 1. c. 659.

In short, even now the appellant does not allege any matter that would have entitled him to a new trial had his robbery conviction been reviewed on a full transcript in this court. He certainly does not allege any matter that would entitle him to an acquittal either then or now — the essence of his case is an abstract or theoretical right to a transcript and that alone is not a ground or reason for relief in a 27.26 proceeding. State v. Pope (No. 51314); State v. Maness (No. 51503), Mo., 408 S.W.2d 15. Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.