author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. James MADDEN, Appellant.
    No. 51076.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Stanley D. Rostov, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Richard D. Moore, Newton C. Brill, West Plains, for appellant.
   HENLEY, Judge.

Defendant was charged by information with burglary, second degree, and stealing, and, under the Habitual Criminal Act, with a prior felony. Sections 560.070, 560.110, 560.156. (Statutory references are to RSMo 1959 and V.A.M.S.) A jury found him guilty of burglary and stealing. Upon a finding by the court of the prior felony conviction, he was sentenced to a term of five years in the penitentiary for burglary and five years for stealing, the two sentences to run concurrently. Section 556.-280. His motion for new trial was overruled and he appeals.

A brief description of the case will suffice, for defendant does not question the sufficiency of the evidence to sustain his conviction of burglary and stealing. In the course of this opinion such evidence will be related as is pertinent to each of the four points relied upon by defendant for reversal.

Somewhere between 1:00 and 4:00 o’clock, A.M., on Sunday, July 21, 1963, the Golden Nugget Tavern owned and operated by one Troy Vest between Thayer and Koshkonong on U. S. Highway 63 in Oregon County was broken into, entered, and merchandise and approximately $100 in money stolen therefrom by two men identified as the defendant, James Madden, and Bobby Jackson, a farmhand of defendant. Bobby Jackson testified that it was he and defendant who broke into the Golden Nugget and stole the property of Troy Vest. Defendant contends that it was not he but Houston Jackson, a brother of Bobby, who was Bobby’s accomplice in this burglary. He also claims (1) that Bobby implicated him (defendant) to protect Houston, and (2) that Bobby was promised leniency in a rape charge pending in Howell County if he would implicate defendant in the Oregon County burglary.

Amos Howell testified that he was driving his truck north on Highway 63 on the night mentioned when he became suspicious of the actions of a man in the Golden Nugget driveway. Passing the Golden Nugget, he drove up the highway, turned around and returned, this time driving slowly through the driveway. There he saw defendant and Bobby Jackson with filled burlap sacks in their hands. He then drove to Vest’s home nearby and told him what he had seen. He and Vest left the latter’s home in the Howell truck intending to go to the Golden Nugget, but enroute they saw Bobby Jackson and defendant in the latter’s Chevrolet pickup truck and gave chase. In the course of the chase they got close enough to the Madden truck to identify the two occupants. After gunfire was exchanged between the occupants of the two trucks they discontinued the chase, and defendant and Jackson escaped.

This escapade and the later burglary had its beginning early Saturday evening shortly after defendant and Bobby Jackson arrived in West Plains. There they met Houston Jackson and with Houston and other friends they had a night on the town going from one tavern to another drinking beer and whiskey.

Defendant, by his own testimony, places himself in the area of the Golden Nugget during the time this burglary was being accomplished; in fact, he places himself in the presence of Bobby Jackson in the driveway of the tavern. He testified that in the course of the evening “we proceeded to get drunk” and the next thing he remembered was “seeing Houston slumped over the wheel sick”; that his truck was at that time parked on a side road about 300 yards from the Golden Nugget; that when he awakened Bobby was not in the truck, so he walked down the highway and to the Golden Nugget where he found Bobby in the driveway with two sacks, the one on his shoulder being “pretty full”; that he knocked one sack out of Bobby’s hand and told him, “You will get in trouble here fooling around like this”; that he and Bobby left both sacks on the ground, returned to the truck, got in, and left with defendant driving. He further testified that they were almost to Kosh-konong “when a pickup truck came in behind us”; that he thought the truck might be a highway patrolman so he turned off on country roads to dodge him because he did not want to be caught driving while drunk; that gunfire was exchanged between the two trucks; and, that he got home about daylight.

The first point briefed by defendant is: “The trial court erred in admitting into evidence State’s Exhibits ‘A’ and ‘B’ in that said exhibits were not verified or authenticated as true copies.” These exhibits were offered by the state in support of the charge under the Habitual Criminal Act. Section 556.280. Exhibit “A” purports to be a copy of a record of the Kansas State Industrial Reformatory showing, among other things, that a James Madden was imprisoned therein pursuant to sentence upon his conviction of burglary and larceny in October, 1954. This exhibit, a thermofax copy of the record, has been filed as a part of the transcript pursuant to a stipulation. It does not purport to bear the signature and attestation or seal of the keeper of such records and, therefore, fails to comply with Section 490.220. After Exhibit “A”, the state next offered what was described by the prosecuting attorney as an authenticated copy of a record of the District Court of Ellsworth County, Kansas, and which was further described by him as containing “the conviction, sentence, committment and discharge of James Madden, where he was convicted of the crime of burglary in the second degree and larceny and duly sentenced and committed to the Kansas State Industrial Reformatory at Hutchinson, Kansas, showing also his committment, that he was paroled August 26, 1955, and discharged August 26, 1957.” This is no doubt Exhibit “B” referred to in the transcript and the briefs, although not so identified at the time of the offering. As indicated, these exhibits were admitted in evidence over defendant’s objection. His objection was two-pronged: that there was no showing that defendant and the James Madden described in the exhibits was one and the same person, and that the exhibits were not properly authenticated. Exhibit “B” -is not furnished us as a part of the transcript. In oral argument before this court defendant’s counsel stated that Exhibit “B” had the same failure of proper authentication as did Exhibit “A” and he excused the failure to produce “B” by stating that he had been unable to locate it.

There are three reasons why we cannot sustain defendant on the point he relies on as error in the admission of these exhibits.

First, the point now relied upon (that the exhibits were not verified or authenticated as true copies) was not preserved for review in this court. The only allegation of error in his motion for a new trial pertaining to these exhibits was that “ * * * the state failed to show by independent proof of any kind whatsoever that the James Madden mentioned in State’s Exhibits ‘A’ and ‘B’ was the same James Madden as the defendant on trial in the cause herein * * Defendant says this allegation is broad enough to include the point relied upon on appeal. The point was made as a part of his objection to the offering, but was abandoned and not preserved for review by his failure to call it to the attention of the trial court in his motion for a new trial. The allegation in his motion is not broad enough to include the point or reason relied on. There is a great deal of difference between an allegation of failure to identify defendant with the prior conviction of felony in Kansas and the allegation, now relied on, that the exhibits were not properly authenticated.

This court has said time and again that reasons or points in support of claimed error of the trial court, set forth in a brief but not raised in defendant’s motion for a new trial are of no avail and not open to review on appeal. State v. Tellis, Mo., 310 S.W.2d 862, 865 [8] and cases there cited. The defendant was required by Supreme Court Rule 27.20(a), V.A.M.R. to state the point he now makes in detail and with particularity as a ground or cause for granting a new trial; having failed to do so he abandoned this point of his objection made at the time these exhibits were offered. Also see Section 547.030. We decline to hold the trial court in error for a reason and on a point not assigned and called to its attention in defendant’s motion for a new trial. Also, having failed to brief the assignment in his motion that the state failed to prove that the James Madden described in the exhibits was one and the same as defendant, that point too is abandoned and deemed waived. For the above reasons the first point of defendant’s brief is ruled against him.

Second, we decline to hold the trial court in error for the admission in evidence of an exhibit not produced in this court as a part of the transcript for our examination. There is nothing before us on which we could sustain this charge of error. It was defendant’s obligation to furnish this exhibit as a part of the record on appeal. Supreme Court Rule 28.08; State v. Sarkis, Mo., 313 S.W.2d 723, 727 [9]. To say the least, there is no presumption the court errs when an exhibit is admitted in evidence, State v. Sarkis, supra, and Exhibit “B” was offered as an authenticated copy of a record entry of a District Court of Kansas and the court found that it was such a copy. It would be unusual to find a court record that would show all of the requirements of § 556.280, i. e., prior conviction, sentence and subsequent imprisonment or fine, parole or probation; usually such records show only the prior conviction and sentence, and possibly parole or probation. This record (Exhibit “B”) is described in its offering as showing not -only that James Madden was “ * * * sentenced [on his conviction of burglary in the second degree and larceny] and committed to the Kansas State Industrial Reformatory * * '* ” but as “ * * * showing also his committment, that he was paroled * * * and discharged * * This offering at least tended to show all of the requirements of Section 556.280. There was no attack on the exhibit during the trial that it did not show all the offer described. Surely, had it not shown subsequent imprisonment or parole, such lack would have been called to the attention of the court by the objection of counsel for defendant.

Third, we note that the name of the defendant is identical with that of the person described in the offering of Exhibit “B”. We have held that the identity of names is prima facie evidence of identity of person and is sufficient to support a finding of such identity under the Habitual Criminal Act. State v. Reed, Mo., 298 S.W.2d 426, 428 [6]; State v. Collins, Mo., 394 S.W.2d 368 opinion filed October 11, 1965. Also see cases cited in 11 A.L.R.2d 884, ¶ 7.

The second point relied on in defendant’s brief is that “the trial court erred in refusing to declare a mistrial and to discharge the jury when the prosecuting attorney repeatedly inquired of Sheriff Raymond Burleson if ‘anyone’ had attempted to bribe him, as such was not a proper admission and was highly prejudicial to defendant and greatly inflamed the jury.”

The repeated inquiries referred to by defendant, and the court’s ruling on each, are as follows:

“Q Sheriff, did you have anyone approach you in regard to this case to get to the prosecutor?
MR. MOORE [counsel for defendant] : Your honor, anything like that is highly prejudicial, prejudices this defendant.
THE COURT: The question as asked is objectionable. If you are objecting to the question it is sustained.
MR. MOORE: We -would like to make a formal objection at this time to this line of examination. If this man has done anything like that he should be charged with an offense, and this line of examination pertaining to this witness is solely for the purpose of prejudicing the jury against the defendant, and the jury should be discharged, and a mistrial declared.
THE COURT: That request is overruled and the objection to the question is sustained. Do you have other questions of this witness?
Q (By Mr. Davidson) Were you approached at any time after the burglary and larceny at the Golden Nugget Tavern in Oregon County in regard to your official duties?
A Yes, sir.
Q State to the court and jury how you were approached—
THE COURT: First, the Court wants to know byr whom he was approached before we get into that area.
Q Were you approached by the defendant or anyone related to the defendant in regard to the case?
MR. MOORE: Your honor, I object to that question because—
THE COURT: The objection is sustained.
MR. DAVIDSON: If I please the Court, Mr. Moore objected to everything stated here—
MR. MOORE: Your honor, I object to that statement by the prosecutor.
THE COURT: Gentlemen, I have ruled on the question that was asked and the objection was sustained and I intend for it to be that way. If you have other questions of this witness, or if you wish to rephrase that question, you may do so.
Q Sheriff, did anyone ever try to bribe you?
A Yes sir.
MR. MOORE: At this time, your hon- or, I am going to ask that a mistrial be declared. He is continually getting in this thing for the sole purpose of prejudicing this jury. It is highly irregular. It is a violation of this defendant’s rights.
THE COURT: The objection will again be sustained. Mr. Davidson, if you please, I have ruled that you may not go into this thing except if the defendant himself has made an offer or approached this officer, then this evidence the court will permit you to show. If you do not have that evidence, let’s discontinue this line of questioning. Let me say to the jury, the questions and answers that have been given here just the last few minutes concerning the matter which we are discussing, the jury will disregard all of the matter and not consider it in any way in arriving at your verdict in this case, because the court has ruled that evidence is not competent. Now, Mr. Davidson, if you have further questions, you may proceed.
MR. DAVIDSON: I have no further questions, your honor.”

Defendant argues that while evidence that an accused on trial has attempted to fabricate or procure false evidence or destroy evidence against him is admissible as showing consciousness of guilt, evidence that someone or “anyone” else had done so is not admissible for any purpose. He says that these questions intimated that defendant, or .someone at his direction, had tried to bribe the sheriff and -invited the jury to infer, from such intimation, that defendant was conscious of his guilt of the charges for which he was on -trid; that failure to follow up this intimation with proof that defendant had in -fact tried to bribe the sheriff shows intentional unfair tactics on the part of the state’s attorney prejudicial to the rights of defendant.

We do not condone these questions of the sheriff in the form they were put by the state’s attorney. We are, however, inclined to the view that this record shows these questions were probably not the result of a conscious effort and an intent to be unfair with and to prejudice the rights of the defendant. Too, it is extremely doubtful that the jury could have inferred from these questions alone that which defendant concludes they did infer. The court sustained all objections of defendant to this line of questioning and specifically instructed the jury to disregard and not consider the matters raised by the questions and answers in arriving at their verdict, giving as its reason that: “The court has ruled that evidence is not competent.” The court declined to declare a mistrial, apparently believing that its instruction that the jury disregard those matters was all the action that was required to protect defendant’s rights. The court had two opportunities to consider whether these questions had likely prejudiced defendant in the eyes of the jury: at the time the questions were asked and again when presented in defendant’s motion for new trial, and its rulings thereon indicate that it was of the opinion the action it had taken was adequate. The action required of the court under these circumstances must necessarily be left largely to the discretion of the trial judge. State v. Allen, Mo., 343 S.W.2d 63, 66 [4, 5]; State v. James, Mo., 347 S.W.2d 211, 214 [7]. We cannot say from the circumstances in this record that the court’s action was not adequate, nor can we say that the court abused its discretion. The point is ruled against defendant.

In points three and four of his brief defendant charges that the court erred in denying his request that a mistrial be declared and the jury discharged because of certain comments made by the prosecuting attorney in his closing argument.

Near the end of his closing argument the prosecuting attorney commented that three of defendant’s witnesses were not present on the morning of the first day of the trial by-stating: “Why weren’t these three witnesses for the defendant here, why did they have to be sent after, why did they have to be put in jail?” The witnesses referred to were John and Lloyd Drumwright and Steve Light, all of whom were used as witnesses by the defendant. The record is not clear on this point, but it appears that they probably had been subpoenaed for an earlier trial date and when the case was continued to this date, the witnesses were to appear on notice from defendant without further subpoena. Whatever the reason, on the morning of trial date they failed to appear and an attachment was issued for them directed to the Sheriff of Howell County, their residence. Defense counsel objected to the above-quoted argument as being-improper and prejudicial to the rights of defendant. In ruling the objection the court went further than requested and instructed the jury to disregard this portion of the argument, stating that there was no evidence to support the remark of the prosecuting attorney. The defendant, for the same reasons given in his objection, then asked that a mistrial be declared and the jury be discharged. Immediately after this request was denied, the prosecuting attorney, continuing with his argument, remarked: “If I was [counsel for defendant] I would object to- everything too.” After this remark was objected to, he closed his argument with the comment: “I am not going to try to talk anymore about this case at this time, because defense counsel has objected to everything that I started to say.” Needless to say, this final comment was followed by an objection.

In point three of his brief defendant contends that the court should have sustained his request for a mistrial because the prosecuting attorney’s comment that three defense witnesses had to be “sent after” and were “put in jail” was not supported by the record; that this comment was damaging and prejudicial to defendant because it intimated the witnesses were reluctant to testify and that they were not to be believed. There is no evidence that the three were placed in jail, but, as indicated, an attachment was issued to compel their attendance, and defendant states in his brief they were “brought into court by the law enforcement officers.” Whether a particular comment in argument is so prejudicial under the facts of a case as to necessitate a discharge of the jury is largely within the discretion of the trial court. An appellate court will not interfere unless the record shows an abuse of such discretion to an appellant’s prejudice. State v. Sanchez, Mo., 269 S.W.2d 46, 48 [2]; State v. Green, Mo., 292 S.W.2d 283, 288 [10]. As stated, the objection to this comment was sustained and the court instructed the jury to disregard the remark because it was not supported by the evidence. At this point, and again on motion for new trial, the court considered whether, under all the circumstances, the comment was so prejudicial to defendant that the court should have declared a mistrial, and concluded that that action was not warranted. We consider that the action taken by the court was sufficient, and that the court did not abuse its discretion in refusing to declare a mistrial. Point three is ruled against defendant.

In point four defendant contends that the court erred in not declaring a mistrial when the prosecuting attorney made his final comment in argument that “I am not going to try to talk anymore about this case * * * because defense counsel has objected to everything I started to say.” There was no request that a mistrial be declared because of this comment and absent a request for such action there was no error. Defendant did object to the comment and the court in effect sustained the objection by stating to the jury that the argument of counsel was not evidence; that the jury was to be guided by the evidence and not by the arguments. The court granted all the relief that was requested. The point is without merit.

We have examined those matters required to be reviewed under Supreme Court Rule 28.02, V.A.M.R., and find no reversible error therein.

The judgment is affirmed.

All concur.

      . State v. Smith, 355 Mo. 59, 194 S.W.2d 905, 907 [6-8]; Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001 [29]; Fulkerson v. Murdock, 53 Mo.App. 151; State v. Christian, Mo., 245 S.W.2d 895, 898 [3].


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Stanfield BLOCTON, Appellant.
    No. 50901.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, James M. Byrne, Asst. Atty. Gen., St. Louis, for respondent.
    Dewey Godfrey, Jr., Bruce Nangle, St. Louis, for.appéllant.
   WELBORN, Commissioner.

Stanfield Blocton was charged by information in the St. Louis Circuit Court with assault with intent to kill with malice. § 559.180, RSMo 1959, V.A.M.S. Upon his trial he was found guilty as charged and his punishment assessed at five years’ imprisonment. After his motion for new trial had been overruled, this appeal was taken.

At approximately 4:30 p. m. on December 12, 1960, Officer Palazzolo of the St. Louis Metropolitan Police Department was driving south on Sarah Street toward Washington Boulevard. He was stopped near the intersection of Sarah and Washington by a citizen who told him of “an incident that was taking place in the grocery store at the northeast corner of Sarah and Washington.” The officer got out of the police car in which he was riding, walked to the grocery store and observed two men in the store. He then returned to his police car, radioed for assistance and started back in the direction of the store. At that time the two men emerged from the store. Each was carrying a revolver. Several shots were fired by both of the men at the officer from a distance of forty to fifty feet. The officer, together with other officers who had arrived on the scene in response to Officer Palazzolo’s call for assistance, pursued the fleeing individuals, who, as they fled, continued to fire in the direction of the officers. Otto Woods, one of the fleeing men, was apprehended a short distance away, but the ether escaped.

On October 24, 1963, the appellant, Stan-field Blocton, was arrested and charged with assault against Palazzolo with intent to kill with malice, the charge arising out of the shots which the defendant was alleged to have fired in the above described incident.

On the trial of the cause, Officer Palaz-zolo identified the appellant as one of the two men who emerged from the grocery-store on December 12, 1960, and who fired shots at him and his fellow officers. The defendant at the trial denied any knowledge of the incident and testified that, although he had lived in the St. Louis vicinity for several years, he was not aware of the charge against him until his arrest in 1963. As above stated, the jury found the defendant guilty and fixed his punishment at five years’ imprisonment.

On this appeal, appellant’s first assignment of error relates to the trial court’s rulling on an objection to testimony of Detective Abernathy, one of the two officers who were directed to the assistance of Palazzolo. Detective Abernathy stated that while he was in a police car at the time of the events in question, he “heard the call come out that a robbery * * Defense counsel interposed an objection and the officer did not complete the sentence. Counsel for the defendant asked for a mistrial “in view of the Officer’s statement.”' The motion was denied. Here, appellant asserts that the court’s rulling was erroneous because it permitted evidence of an offense other than that with which the defendant was charged to be presented to the jury as proof of the act in issue.

Assuming that the objection made at the trial was sufficient to preserve the point raised on appeal, there are several reasons for its rejection. In the first place, Officer Abernathy testified no further regarding a robbery. He did not testify that the robbery call which he received pertained to the defendant. The mere mention of another offense is not per se prejudicial error in the trial of a criminal case. Furthermore, there can be little doubt that the “incident” which Officer Palazzolo investigated at the grocery store involved some criminal activity. Otherwise, there would have been no occasion for the defendant and his companion to have emerged from the store and to have immediately fired shots at a uniformed police officer. Even assuming that Detective Abernathy’s reference was to a robbery in which defendant participated, such an offense was such an integral part of the activity upon which the charge for which defendant was tried was based that evidence of it falls within the well-recognized exception to the rule which appellant would apply. That exception permits such evidence when it is relevant and when two criminal acts are so related to each other “as to show a continuing and inseparable factual background definitely relevant to the determination of the essential issue in [the] case [on trial}.” State v. Lunsford, Mo.Sup., 338 S.W.2d 868, 872. Here, evidence that a robbery had occurred would be definitely relevant on the issue of intent with which the shots were fired.

Appellant’s next allegation of error arose out of testimony of Officer Palazzolo on redirect examination. The officer was asked whether or not he learned the name of the defendant on December 12, 1960. The officer stated: “We learned it from Otto Woods.” Defendant’s counsel objected, stating: “Anything this [witness] testifies as to this man’s involvement in this, is purely hearsay.” The objection was overruled.

In our opinion the admission of this evidence was prejudicial error. Although it is not entirely clear just when the officer “learned” from Woods the identity of the appellant, the only reasonable assumption is that the information was obtained following the arrest of Woods. In such circumstances the situation is quite similar to that presented in the cases of State v. Chernick, Mo.Sup., 278 S.W.2d 741 and 280 S.W.2d 56. The former case involved’ prosecution for assault with intent to kill, the latter for robbery, both of which arose out of a bank robbery in the City of St. Louis. Several participants were involved in the affair. One was captured at the scene. The circuit attorney was permitted to testify that he thereafter interrogated the arrested participant and then “we put an arrest order out for Glenn Chernick.” In holding the admission of this testimony prejudicial error at Chernick’s trial, the court stated (280 S.W.2d 60):

“The essential principle of the hearsay rule is that for the purpose of securing trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination. And, if the declaration of a co-conspirator or co-actor sought to be shown in evidence is not in furtherance of the object of the unlawful combination, or if it was made prior to the formation thereof, or after the consummation of the purpose thereof, the objection to be made is that such declaration is hearsay statement and not binding upon the co-conspirator or co-actor on trial. Vol. 2, Wharton’s Criminal Evidence, 11th Ed., § 699, p. 1183, at page 1188; State v. Chernick, supra; State v. Hill, 352 Mo. 895, 179 S.W.2d 712; State v. Priesmeyer, 327 Mo. 335, 37 S.W.2d 425; State v. Buckley, 318 Mo. 17, 298 S.W. 777; State v. Kennedy, 177 Mo. 98, 75 S.W. 979; State v. Duncan, 64 Mo. 262. (Conceptions of the hearsay rule as recognizing the further incidental imprint of trustworthiness because of the oath administered to a witness, and of confrontation and the related constitutional guaranty that in a criminal prosecution the accused shall have the right to meet the witnesses against him ‘face to face’, are also involved. Const, art. I, § 18 (a), V.A.M.S.; State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713’; Vol. V., Wigmore on Evidence, § 1362, pp-. 3-7.)”'

Here, the information undoubtedly was obtained from Woods following his arrest. Statements made at that time would not have been in furtherance of the alleged conspiracy between Woods and the appellant. Statements made by Woods at that time implicating appellant would upon the appellant’s trial be hearsay and inadmissible in evidence against appellant. State v. Chernick, supra.

Respondent suggests that the objection to the officer’s testimony was insufficient because it did not state the grounds upon which the testimony was sought to be excluded. The transcript does show that appellant’s counsel first stated merely “I object” and that the assistant circuit attorney interrupted the objection by asking a further question which was not answered. (The interrupting question was: “Did you put an arrest order out at that time?” Compare Chernick, supra) Appellant’s counsel again restated his objection, specifying that the objection was based on the ground that the testimony was hearsay. The objection sufficiently stated the basis of the appellant’s complaint against the testimony.

Respondent contends further that the testimony “merely established the name of the appellant. Appellant was not an unknown suspect, he had been seen and identified, by the police officer.” The officer’s testimony did more than merely establish the name of the appellant. It identified the appellant as the person who participated in the offense. In this respect the case differs from the case of State v. Deppe, Mo.Sup., 286 S.W.2d 776, relied upon by-respondent. There Deppe was arrested on the premises on a charge of bookmaking. The police officer who made the arrest accepted telephone calls at the scene of the arrest and testified that callers asked for “Larry” or “Bud.” The officer was permitted to testify that the defendant was known as “Bud.” The object of the testimony was not, however, to identify the defendant in that case as the person guilty of the offense. It was merely to show that the person arrested was known by the name of “Bud.” Likewise, in the case of State v. Francies, Mo.Sup., 295 S.W.2d 8, relied on by respondent, the possibly hearsay evidence was employed to identify the victim of the homicide, not the defendant.

In this case the prejudicial nature of this testimony was brought home by the fact that, following the submission of the case to the jury, while the jurors were deliberating, they submitted to the court three questions, one of which was: “Also, was Mr. Woods’s testimony as to implicating Mr. Blocton allowed to stand?” The trial court, of course, did not endeavor to answer the question. Woods did not testify and testimony that he had implicated the appellant came only from Officer Palaz-zolo. The jury’s inquiry leaves no doubt that the jury was impressed by such testimony.

Respondent also suggests that by cross-examining Officer Palazzolo regarding Woods’ statement, appellant waived any objection to its original introduction. The officer was cross-examined about the identity of the appellant as the subject of two photographs obtained the day following the shooting. The officer testified that he obtained the photographs from a person who he believed was a female relative of appellant. When the appellant’s attorney asked the witness whether he had any other knowledge that the photographs were of appellant, the witness replied: “And, also, the photographs were identified by Woods as being Blocton, his cousin, who assisted him in the incident(Emphasis supplied) An objection to the voluntary nonrespon-sive reply was overruled. The italicized portion of the reply was voluntary and not responsive to the question asked of the witness. This cross-examination did not constitute a waiver of the original objection. We find no other portion of appellant’s cross-examination which called for or produced any testimony that Woods had made a statement which implicated the appellant.

The judgment of conviction is reversed and the cause remanded for a new trial.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . The sufficiency of the objection is not questioned for lack of a motion to strike. Appellant’s counsel did request a mistrial. The highly prejudicial nature of the testimony, solicited by the prosecution and going to the heart of appellant’s defense, could not have been cured by a motion to strike. Therefore, the objection made and the relief requested sufficiently presented the matter for review. State v. Burchett, Mo.Sup., 302 S.W.2d 9, 13-15 [1-3]. See State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 142 [8, 9].


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Arthur R. AUBUCHON, Appellant.
    No. 50619.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St Louis, .for respondent.
    Charles M. Shaw and Claude Hanks, Clayton, for appellant.
   HIGGINS, Commissioner.

Arthur R. Aubuchon, indicted for the crime of murder in the first degree of Dennis Sass, was convicted of murder, second degree, and the jury fixed his .punishment at seventy-five years’ imprisonment. Section 559:030 RSMo 1959, V. A.M.S. Sentence and judgment followed and defendant has appealed. He has filed no brief so we review assignments of error properly preserved In the motion for new trial. State v. Kukovich, Mo., 380 S.W.2d 324, 325[1]. Our statement will be brief because it is not contended that the evidence was insufficient to sustain the conviction.

Appellant began to see Esther. Mills socially in August, 1962, and he and Mrs. Mills were to be married after she became divorced. For some three months prior to March 5, 1963, Mrs. Mills lived in a home in Glasgow Village, St. Louis County, Missouri, upon which appellant paid the rent. In February, 1963, Mrs. Mills quit dating appellant and began to see Dennis E. Sass, Appellant thereafter threatened Sass’s life on three different occasions and, on still another occasion, went to Sass’s place of employment, attacked him, and told him to stop seeing Mrs. Mills.

On March 4, 1963, appellant obtained a 38-caliber Smith & Wesson Chief Special revolver from the New Line Gun Company in St. Louis. During the bargaining, appellant stated that he wanted the gun right away. On that evening appellant visited several taverns and then drove to the Mills home in Glasgow Village where, at about 1:00 A.M., March 5, he found Sass sitting in Mrs. Mills’s Buick automobile. Appellant ran from his car to the Buick, opened the door, and shot Sass. Appellant got back in his car, drove a short distance, turned around, and returned to the scene of the shooting. Sass was then slumped over and Mrs. Mills had come from the house and was standing by her car. Appellant then shot her and she fell to the ground beside the car. The two shootings were three to five minutes apart.

Appellant left the scene immediately, disposed of the gun in the Mississippi River, and went to Fort Lauderdale, "Florida, arriving there by bus March 7, 1963. He registered at a hotel there as A1 Anderson. He was arrested in Miami Beach, Florida, March 9, 1963, and made an oral statement which included admissions that he had shot both Dennis E. Sass and Esther Mills.

Both of the victims died from gunshot wounds in the head. Mrs. Mills received two gunshot wounds, one in the head; Sass received six shots, two in the head.

Upon trial, appellant contended that he shot Sass in self-defense and that Mrs. Mills was shot accidentally.

Assignments 1, 5, 6, and 7 of the motion for new trial will be considered together because they all charge error in permitting mention and evidence of the death of Esther Mills. By Assignment 1 appellant contends that mention of the death of Mrs. Mills in the opening statement of the prosecuting attorney was prejudicial to defendant because it related to another crime. In Assignment 5 the same error is charged against the admission into evidence of Exhibit 4, a photograph of Mrs. Mills in a prone position upon the ground. This assignment also charges that the photograph could serve only to inflame the minds of the jury. Assignment 6 makes the same charges against Exhibit 22, a missile taken from the body of Mrs. Mills; and Assignment 7 is similarly directed against the testimony of the pathologist concerning the death of Mrs. Mills and the removal of the bullet.

The general rule excluding evidence that the accused committed other crimes does not apply where such evidence tends to prove guilt of the crime charged, or where the crime charged and the other offenses are so closely related or connected that one cannot be shown without proving the other; and evidence otherwise competent on the issue of accused’s guilt of the crime charged is not inadmissible because it also shows him guilty of another crime. See 22A C.J.S. Criminal Law, § 683, p. 741, et seq.

By appellant’s admission the two killings occurred at the same place, in front of Mrs. Mills’s home, only three to five minutes apart, and the bodies were found close together. Under these circumstances, the two offenses were so closely related as to constitute a single occurrence in which proof of one offense also shows the other. Both killings came after a series of events in appellant’s romance with Mrs. Mills, which events included threats by appellant against the life of Sass if he did not stay away from Mrs. Mills. Such circumstances permit evidence of the offense against Mrs. Mills. It tends to show the motive and intent of the appellant in killing Sass because Sass himself became -involved with Mrs. Mills to the exclusion of appellant. Being thus all a part of one transaction, it was not error to permit the reference to Mrs. Mills’s death in the opening statement and to receive the photograph of Tier body and the details of her death in evidence. State v. Varner, Mo., 329 S.W.2d 623, 628[7-9]; State v. Gillespie, Mo., 336 S.W.2d 677, 682[10].

Assignments 2, 3, and 4 relate to the receipt of Exhibits 1, 2 and 3 showing Sass’s body. The charge is that they serve no purpose but to inflame the minds of the jury. Appellant contended throughout the trial that he killed Sass in self-defense. He testified that he was attacked by Sass and that he shot Sass during the attack. Appellant’s statement to the police was that he shot Sass while Sass was in the car, and officers who were at the scene shortly after the shooting found Sass’s body seated behind the steering wheel of the Buick. The exhibits were material evidence on the issue of self-defense and as to whether Sass was shot while in or out of the Buick. They were also corroborative of the testimony of the investigating officers and of the statement attributed to the appellant. They thus constituted properly admitted material evidence, and their possible prejudicial nature was an unavoidable incident which did not render them inadmissible. The same is true of the picture of Mrs. Mills and the bullet taken from her head. State v. Perkins, Mo., 382 S.W.2d 701, 704[6, 7]; State v. Luttreli, Mo., 366 S.W.2d 453, 461[7].

In Assignments 8 and 9 appellant complains that certain testimony, elicited from Officer Kenneth Edwards and Detective Richard Koenig, violated the rule against hearsay evidence. These witnesses testified that Koenig spoke with Judith and Roxanne Mills, daughters of Mrs. Mills, in the Glasgow Village home about 1:20 A.M. after the shootings at about 1:00 A.M. Sometime later they went to appellant’s place of business, the Cloverleaf Lounge. The testimony in question occurred as follows:

“Q (By Mr. McSweeney) Did you have occasion to talk to any of the occupants of 200 Presley Road while you were up there ? A (Officer Edwards) No, sir, I did not talk to anybody.
“Q Do you know whether or not Detective Koenig talked to them? A Yes, sir; I believe he did.
“Q Do you know who they were? A I believe he talked to a Judith Mills.
“Q All right. Where did you go when you left 200 Presley Road? A We went down to the Cloverleaf Lounge at 4949 Natural Bridge Road.
“Q Did you find anyone there at that time? A No, sir, we did not.
* * * * * *
“Q All right. Did you have occasion to go into 200 Presley Road or Drive, whatever it is? A (Detective Koenig) Yes, sir.
“Q Did you have occasion to talk to anybody in there? A Yes, we talked to two young girls, Judith Mills and Roxanne.
* * * * * *
“Q How long were you up there, Detective Koenig? A At the scene itself? Q Yes. A Approximately an hour, hour and a half, I believe, sir.
“Q Where did you go from there? A We went to an address of 4949 Natural Bridge.”

The objections and motions relating to this testimony were coupled with reliance on State v. Chernick, Mo., 278 S.W.2d 741, and State v. Chernick, Mo., 280 S.W.2d 56. In those cases the defendant was the driver of the car used in a bank robbery. One of -his coconspirators was arrested at the scene and the circuit attorney testified that he talked to the coconspirator and that after the conversation he put out an arrest order for the defendant. The court held that the testimony permitted a prejudicial inference that was based on hearsay which would have itself been inadmissible. The obvious reason for not applying the rule of State v. Chernick, supra, to this case lies in the equally obvious distinction between the cases. Chernick was harmed and prejudiced by the hearsay inference because his defense was that he had nothing to do with the crime charged and the testimony identified him, .placed him at the scene, and connected him with the crime. In contrast, Aubuchon admitted that he was present at the scene of the shootings and that he shot both Sass and Mrs. Mills. He defended on self-defense and, accident, neither of which defenses was affected by the complained-of testimony. Under such circumstances we find no reversible error.

Assignment 10 is that the court erred by commenting on the evidence during receipt of testimony from witness Mary Ellen Dillon. On direct examination the witness testified to several conversations she had with appellant relating to Sass and Mrs. Mills, one of which occurred at appellant’s tavern in the presence of Penny Stephens, niece of the witness. We set out the testimony and events during which the alleged comment occurred:

“Q (By Mr. McSweeney): Did you have occasion to go to the Cloverleaf at any time with Miss Stephens? A Yes.
“Q Did you see defendant there on that occasion? A Yes.
“Q -Did he make any statement with respect to Mr. Sass at that time? A Well, I can’t think of it now.
“MR. McSWEENEY: Your Honor, I will ask permission at this time to ask a— THE COURT: Did you hear what her answer was ?
“MR. McSWEENEY: She said, T can’t think of it now.’ I will ask permission to ask a preliminary question or two by way of refreshing the witness’s recollection, if I may.
“MR. SHAW: Now, if the Court please, I am going to object to this as it is improper examination of a witness. He’s asked a question; she said ‘no’, ‘I can’t think of it.’ Now he has—
“THE COURT: She didn’t say ‘no’,, if you are repeating. That is why I asked if you heard what the witness said. She is hardly audible. She said T can’t think of it now.’
“MR. SHAW: I object to his trying to tell her what the answer is. That is what he is asking your permission to do. THE COURT: Well, that wasn’t the former question. The former question, as the Court recalls it, is whether there was anything said in regard to—
“MR. SHAW: Mr. Sass by the defendant and she said she couldn’t recall it now. THE COURT: Couldn’t recall it now, which implies to me something must have been said.
“MR. SHAW: I am going to ask that the jury be discharged and a mistrial declared because of that remark of your Honor. THE COURT: * * * Objection is overruled.”

We have set forth the context of the court’s statement to demonstrate its lack of prejudice. The statement does no more than suggest the possibility of other and further testimony from the witness and it in no way indicates what further was or may have been said by appellant to the witness, nor does it suggest that such remark would have been prejudicial or incriminating. Viewed within the context of the testimony and colloquy between the court and appellant’s counsel, we conclude that the remark is innocuous and not a subject of reversible error.

In Assignment 11 appellant contends that inspection by the jury of a 38-caliber revolver carried by Captain Fred J. Vasel prejudiced his right to a fair trial by giving his trial a circus atmosphere. Appellant used a Smith & Wesson 38-caliber Chief Special to kill Sass and Mrs. Mills and he disposed of it in the Mississippi River. Six bullet wounds were found in Sass’s body and two were found in Mrs. Mills’s body. Appellant contended that he had Been knocked to the ground by Sass and that he shot him in self-defense. He contended also that Mrs. Mills was shot accidentally when she reached for the gun. Captain Fred J. Vasel of the St. Louis County Police Department testified in rebuttal that his own weapon was a 38-caliber Smith & Wesson Chief Special. He stated also that it had been modified to lessen the trigger pull, which Captain Vasel demonstrated. The weapon had a 5-shot cylinder, as did the weapon used by appellant.

Demonstrative evidence is admissible if it explains the intent of the accused or gives the jury a more accurate impression of the facts, or throws any relevant light upon any material matter. State v. Siekermann, Mo., 367 S.W.2d 643, 650[14]. Captain Vasel’s revolver, like appellant’s, could shoot but five times without being reloaded, and it tended to explain appellant’s intent by showing the necessity of reloading after shooting Sass five times in order to shoot him the sixth time. The demonstration was also relevant in that it tended to rebut appellant’s claim that Mrs. Mills came to her death by accident. The jury could determine for itself the likelihood of the gun’s firing by accident, and the modification which made the trigger pull less than usual could not have harmed appellant. For approval of a virtually identical demonstration, see State v. Richardson, Mo., 321 S.W.2d 423, 427[2-4].

Assignment 12 is that the court erred in refusing to give an instruction cautioning the jury to distinguish between the two killings and that defendant was to be tried only for the killing of Sass. No such instruction was prepared and presented to the court by appellant. Consequently, there was no proper request for such cautionary instruction, State v. Harris, Mo., 356 S.W.2d 889, 891[3-5]; and, absent request, there is no error in refusing to give such an instruction, State v. McMillian, Mo., 338 S.W.2d 838, 843[5].

In Assignment 13 appellant complains of the use of “and not under the influence of a violent passion suddenly aroused by some lawful or just cause or provocation” in defining “deliberately” in Instruction No. 1 on murder in the first degree. Virtually identical language was approved in defining “deliberately” in State v. Duestrow, Mo., 137 Mo. 44, 38 S.W. 554, 561, 566[9]. See also Ex parte Johnson, Mo.App., 142 S.W.2d 651, 653[1], Since appellant was convicted of murder in the second degree, he has no complaint against the instruction on first degree murder. State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 26[1].

Assignment 14 charges that Instruction No. 2 was “an improper instruction concerning the law as to murder in the second degree.” This assignment is not sufficient to preserve any matter for appellate review. State v. Miles, Mo., 364 S.W.2d 532, 537[11].

In Assignment 15 appellant charges that the definition of “provocation” in Instruction No. 3 on manslaughter was erroneous because it dealt only with legal conclusions and did not incorporate facts relative to the alleged attack on appellant by Sass. In State v. Brooks, Mo., 360 S.W.2d 622, 628[13], we held that an objection that a manslaughter instruction failed to define provocation was not well taken. Moreover, the definition of provocation in this case is virtually the same as that quoted with approval in State v. Davis, Mo., 328 S.W.2d 706, 708[3].

Assignment 16 complains of error in Instruction No. 5 charging that it “negatived the Defendant’s self-defense instruction and unduly impressed upon the Jury those acts which would not amount to self-defense.” Instruction No. 5 told the jury that the law of self-defense would not permit attack or acts done in retaliation or for revenge and then proceeded with an hypothesis which limited defendant’s right of self-defense if the jury found that defendant sought, brought on, or voluntarily entered into a difficulty with the deceased for purpose of retaliation, revenge, or punishment. The instruction is proper and within the general rule that one who is an aggressor or provokes a difficulty in which he injures or kills his assailant cannot invoke the right of self-defense to excuse or justify entirely the injury or homicide. State v. Spencer, Mo., 307 S.W.2d 440, 443[2, 3]; State v. Gieseke, 209 Mo. 331, 108 S.W. 525, 528, 529. There was evidence to show that appellant went looking for the deceased, prepared with a loaded gun to kill or do great bodily harm. The assignment is without merit.

Assignment 17 is that Instruction No. 6 “tended to be a circumstantial evidence instruction, but * * * did not advise the Jury as to all of the law which the Court attempted to instruct the Jury in Court’s Instruction No. 6.” Rule 27.20, V.A.M.R. requires that in order for an assignment to preserve anything for appellate review it must set forth the grounds “in detail and with particularity.” Vague and general assertions, as that set out above, preserve nothing for review. State v. Butler, Mo., 353 S.W.2d 698, 700[4-6].

Assignment 18 concerns Instruction No. 7 which read: “ * * * that, if you find and believe from the evidence beyond a reasonable doubt that the defendant made any threat against the life of Dennis E. Sass, then such threat should be considered by the jury in determining whether the defendant was the aggressor and for the purpose of showing what the intentions of the defendant were at the time of the said shooting, wounding and killing, * * Appellant’s complaint is that “ * * * There was no evidence * * * that the Defendant ever threatened the life of the deceased Dennis E. Sass * * The assignment is without merit because there was evidence upon which to submit the instruction. James Hemby testified that he lived at 204 Presley Road and that at 12:30 A.M. one morning about a month before the shooting he saw an altercation in front of 200 Presley Road where Mrs. Mills lived. At the conclusion, he observed a man walk to a white station wagon similar to the one used by appellant on the occasion of the shootings. As the man walked toward the station wagon Hemby heard him say to the other man in the altercation, “I’ll kill you.” He testified also that the man returned later.. Charles Adams of the St. Louis County Police Department testified that on February 8, 1963, he investigated a call to 200 Presley Road. He was there about 1:15 A.M. and found Mrs. Mills and Sass present. The front door glass had been broken and the door and door frame were bent. Appellant arrived during the 50-minute investigation and said that he broke the door earlier. He also requested the officer to put Sass out of the house. Mary Ellen Dillon stated that she was at Mrs. Mills’ home in early February and had occasion to answer the telephone when the caller was appellant. She testified that appellant said, in reference to Sass, “That he was going to get him * * * that Dennie had taken one girl from him and that * * * he wasn’t going to get away with it.”' The witness testified also to an occasion on a Friday night in January 1963, at appellant’s Cloverleaf Lounge, when appellant said “that he was going to get Mr. Sass because of Esther, because of the fact that he had taken another girl away from him.”

In Assignment 19 appellant complains of Instruction No. 9 which told the jury that an oral statement made by defendant was admissible if they found it was given voluntarily. Appellant contends that giving the instruction was error because he made no issue of the voluntary nature of his statement and that it told the jury that all they had to find was whether the statement was voluntarily given and, if so, the statement was necessarily true. A fair reading of the instruction belies the charge that the statement was to be taken as true if found to have been given voluntarily. The jury was, in the same instruction, told that the statement was “to be given such probative value as evidence as you believe it deserves.” The instruction thus told the jury to ignore the statement as any proof of guilt if it was not voluntary. An instruction in virtually the same language was approved in State v. Cunningkin, Mo., 261 S.W.2d 85, 86. In that case it was also contended that the instruction should not have been given because there was no dispute as to voluntariness of the statement. The contention was denied. 261 S.W.2d l. c. 87[5].

Assignment 20 charges that Instruction No. 10 was an improper statement of the law of flight because it used “fled from the scene thereof” instead of “fled from his usual place of abode.” The instruction told the jury that if it found and believed beyond a reasonable doubt that defendant, after commission of the offense, fled from the scene thereof and from St. Louis County and the State of Missouri, such flight could be taken into consideration in determining guilt or innocence. Appellant testified that he had been born and raised in Florissant, St. Louis County, and that he had lived there all his life. The evidence showed that as he left the scene of the crime he went immediately on a journey by bus that put him in Fort Lauder-dale, Florida, March 7, 1963. The term “flight” denotes the act of leaving the scene or vicinity of the crime, and the act of flight may be shown on the issue of guilt. State v. Williams, Mo., 382 S.W.2d 597, 600[5, 6]. Under the circumstances of this case the instruction was proper.

Assignment 21 complains of the refusal of defendant’s Instruction A, which would have told the jury it should view the oral statement made by defendant with caution because such an oral statement was subject to imperfection or mistake on the part of the witness who testified about the statement. State v. Clark, Mo., 277 S.W.2d 593, 601 [10], approved the refusal of an instruction that verbal statements of the defendant are to be received with great caution on account of the liability of witnesses to forget or misunderstand what was really said or intended; and an instruction that evidence, by way of oral statement, should be received with great caution was held properly refused in State v. Bozarth, Mo., 361 S.W.2d 819, 828[16, 17]. The court gave an instruction on credibility of witnesses which is not challenged by appellant, and there is no error in the refusal of Instruction A.

Appellant’s final assignment, No. 22, complains of the refusal of his Instruction B which undertook to explain the circumstances under which an accused could be convicted on circumstantial evidence. Appellant made an oral statement in which he admitted the shootings and he so testified at the trial. Such constituted direct evidence of guilt, rendering an instruction on circumstantial evidence unnecessary because such instruction is required only in cases based solely on circumstantial evidence. State v. Smith, Mo., 377 S.W.2d 241, 244[3-5].

We have also examined record matters for which no assignment of error is required. Rule 28.02, V.A.M.R. The indictment is in proper form and sufficient; defendant was arraigned and he pleaded not guilty; the verdict is in proper form and is responsive to the issues and the punishment is within legal limits; defendant’s motion for new trial was considered and allocution was granted.

Defendant had the benefit of counsel throughout his trial, in preparation of his motion for new trial, and upon allocution.

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: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jack BALLARD, Appellant.
    No. 51023.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Floyd L. Sperry, Jr. Sp. Asst. Atty. Gen., Clinton, for respondent.
    F. Neil Aschemeyer, Richard L. Daly, O’Hanlon & Daly, St. Louis, for appellant.
   EAGER, Presiding Judge.

Defendant was indicted by a Grand Jury of the City of St. Louis for the theft of a Chevrolet car in that city, in violation of § 560.1S6. He was also charged with the commission of two prior felonies. The court made an appropriate finding of the prior convictions, the jury found defendant guilty, and the court sentenced him to a term of imprisonment of five years. Defendant was represented at the trial and is represented here by counsel of his own choice. After a detailed and specific motion for new trial was overruled, the defendant appealed.

The facts shown in evidence were, in substance, the following. Defendant had for several years been in the automobile salvage business, selling parts, buying cars, dismantling cars, and occasionally selling entire cars. His place of business was a lot at 4109 North Broadway in St. Louis. On November 5, 1963, one Arthur Werre-meyer, who lived in an apartment building at 7543 Parke Towne North in St. Louis County, was the owner of a 1960 white Impala Chevrolet, a four-door hardtop, in good operating condition. It carried a state license plate, a Ladue sticker and a parking permit sticker. At about 6:00 p. m. on November 5, Mr. Werremeyer left his car parked in front of his apartment, locking all four doors, and taking the keys in with him. At about 7:30 the next morning, November 6, he found that the car was gone. He had given no one permission to take it or use it. He next saw it about 9 r30 on the same morning at defendant’s salvage yard, where he identified it although it was then partly dismantled. He did not know the defendant.

At some time around 8:00 a. m. on November 6, 1963, two St. Louis detectives and at least one patrolman went to defendant’s salvage yard; they found defendant, Cal Smith and Paul Baykowski at or near a white, 1960 Chevrolet Impala, which was then “back of the shacks” or, as we understand, at the back of the lot. Defendant Ballard had a hammer in his hand and was breaking out the rear glass; Smith was standing in front of the car with a lighted acetylene torch. The hood, the front fenders, the trunk lid, three doors, the windshield and the spare tire had been removed; the state license was gone and the windshield stickers had been removed except for an unidentifiable part of one. The manufacturer's serial number plate had been removed from the left door post or panel. When questioned, defendant stated that he had bought the car that morning for $750 from a “dealer” on the south side, that he was dismantling it because it had a bad transmission, and' that he would produce the title “at the proper time.” The car was taken to- a police garage, where the secret identification number was located on the frame; this checked with the number on Mr. Wer-remeyer’s title. The record does not show specifically why the officers went to defendant’s place at that particular time, although they customarily checked salvage yards from time to time. Defendant and his two companions were arrested and defendant was questioned briefly at the police station, before being released on bond.

Defendant testified: that he bought the car for $750 on the morning of November 6, 1963, from a man who gave the name of Floyd Colyer, and who claimed that he dealt in used cars from time to time from his home; that he got a title and a bill of sale from this man; that the man would not take a check and he paid him in cash; that he was told that the transmission was bad, and that he was dismantling the car because it had a good body and he could get more for the parts than for the car as a whole; that he had removed the identification plate and scraped off the stickers, but if the car had any state license plate, it was removed by the man who sold it. We note the following testimony in somewhat more detail, since it concerns a point made on the admission of evidence. On cross-examination, defendant was asked his “procedure” with respect to a title when he cut a car up for salvage; his answer was: “I have titles down there at my office, maybe three hundred titles, sir. I keep them in a box. Destroy the titles after the car is completely gone.” He was then asked if, under the law, he was not required to send them in to the Department of Revenue; this was objected to as assuming “what the law is,” and as “not an issue involved in this case.” The objection was overruled, and defendant testified that he was not so required so far as he knew. He was further asked if he did not know that it was “against the law” to remove an identifying plate, and he answered that he did not; on re-cross, he further testified that on salvaged cars he kept the plates and the titles in his records until “the car is gone, and the title gets old * *

Abraham Rubin testified that he bought and sold auto salvage; that he knew defendant and did business with him; that he was at defendant’s lot when defendant bought the car in question and that he loaned defendant $200 in cash with which to complete the purchase because the seller would not take a check. On cross-examination he was asked the “procedure” for handling the title to a car which was being cut up for salvage. This question was objected to as not within the issues, the objection was overruled, and the witness answered that the only requirement he knew of was that “we are supposed to keep it * * he was also asked if he knew the “requirement of the law” concerning the title, and he answered that no one had ever given them a “straight answer” on that; that no salvage yard knew the answer and therefore all of them had a lot of titles “laying around”; that, specifically, the Department of Revenue said that “they don’t know what to do about them.” There was other evidence, offered on behalf of defendant, which might be considered as indicating that a title to the car in question was transferred by a dealer to one Floyd Colyer, but this is immaterial on the issues of the present appeal-.

In rebuttal the State recalled Detective Harold Westbrock of the Auto Theft Squad; counsel asked him if he was familiar with the “rules and regulations and requirements of the Department of Revenue” regarding salvaged cars; he answered that he was. He was then asked what such requirements were with respect to the handling of the titles. Defendant’s objection was overruled; the objection will be discussed later. The witness answered that “The law states, upon junking of an automobile, for salvage purposes, the title must be surrendered, for cancellation, to the Director of Motor Vehicle Registration, within ten days. * * * The title is thereby cancelled.” The witness was then asked about the rules or regulations “in respect to the disposition of serial number identification tags on plates.” He answered: “The law states that any one who is found guilty of defacing, altering or removing the manufacturer’s serial plate, or motor number, or any other distinguishing number, from the automobile, is guilty of a felony.” At the close of the testimony of this witness defendant moved for a mistrial for the reasons that the witness had testified that defendant was guilty of a felony other than the one for which he was being tried, that the testimony was not proper rebuttal, and that the statement of the law and of another crime was introduced only to prejudice the defendant. The motion was overruled. The original objection to this testimony was that the proposed testimony was not proper rebuttal, that the defendant had not claimed to know all the rules and regulations, but had merely testified to what he did, and that it was now proposed to show that what he did was a violation of the law. We consider that this objection, when it was overruled; was applicable to the entire line of similar testimony. We also hold that, while the objections might have been more specific, they were sufficent to advise the trial court of the substance of the points now raised.

The rebuttal testimony just related is the basis for the first five of appellant’s points which we shall consider together. In substance, they are that the admission of this testimony constituted prejudicial error for the reasons: that it purported to show the commission of separate, independent and unrelated crimes which had no legitimate tendency to show defendant’s guilt of the crime for which he was on trial; that it constituted statements of legal opinions and conclusions invading the province of the court; that it did not constitute legitimate rebuttal of any of defendant’s testimony and at most could only have been a rebuttal of collateral facts in evidence.

We doubt that this testimony constituted proper rebuttal of the defendant’s testimony, but a discussion of that somewhat intricate question is not necessary to this decision. We hold that the evidence was improper and prejudicial for the reason that the witness was allowed to testify to matters of law which, under the evidence already admitted, tended to show that the defendant was guilty of numerous independent and prior crimes. One of the cornerstones of our system of jurisprudence is the principle that questions of fact are to be determined by a jury, and that all matters of law are to be determined and declared by the court. Consequently, a witness may not be allowed to state his opinion of the existing law. Huff v. United States (CA 5), 273 F.2d 56; State v. Hayes, Mo., 247 S.W. 165; State v. Buckner, Mo., 80 S.W.2d 167; Myres v. United States (CA 8), 174 F.2d 329; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631, 635(8); Woodall v. Woodall, Mo.App., 15 S.W.2d 890, 993; 7 Wigmore on Evi., 3rd Ed., § 1952. The questions to this witness fairly called for legal conclusions, for the “rules and regulations”' (if such there be) necessarily had their foundation in the statutes. Section 301.220 (return of title); Section 301.400 (removal or alteration of manufacturer’s number). Incidentally, Section 301.400 contains a requirement ignored by the rebuttal- witness, namely, that the motor vehicle be “the property of another.” That is perhaps not material here in any sense, but it illustrates the dangers of accepting the law from a witness.

Counsel for the State insist that since defendant had testified on cross-examination that he had possibly three hundred other titles to salvaged cars, and had removed a like number of identification plates, the State might legitimately show that his acts therein constituted violations of the law, for the purpose of showing “motive, intent and the commission of a lesser offense than that charged in the indictment.” The last of these suggestions is a surprising statement; a lesser offense may only be established where it is necessarily included in the greater offense actually charged, and proven by the evidence. 27 Am.Jur., Indictments and Informations, §§ 193-194; State v. Moon, 221 Mo.App. 592, 283 S.W. 468. Removing an identification plate in violation of § 301.400 is a wholly different offense from that of stealing a car. As to “motive and intent,” the rule is well stated in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, at loc. cit. 307, where the court said: “ ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motives; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.; (5) the identity of the person charged with the commission of the crime on trial.’ The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: ‘The acid test is its logical' relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rej ected.’ State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807; State v. Gregory, 191 S.C. 212, 4 S.E.2d 1.”

See also: State v. Garrison, 342 Mo. 453, 116 S.W.2d 23; State v. Buxton, 324 Mo. 78, 22 S.W.2d 635; State v. Summers, Mo., 362 S.W.2d 537; State v. Mobley, Mo., 369 S.W.2d 576; State v. Atkinson, Mo., 293 S.W.2d 941; State v. Negron, Mo.App., 374 S.W.2d 622; State v. Selle, Mo., 367 S.W.2d 522; Wharton, Crim.Evi., 12th Ed., § 233. A determination of this question here merely affords an additional reason for our ruling, since the legal conclusions that the other and separate acts of defendant were crimes were wholly inadmissible, and we have held that their admission constituted prejudicial error. However, we also hold that the supposed acts of defendant in keeping three hundred other titles and in removing three hundred other identification plates, in wholly independent and isolated transactions, were not so related to the cause on trial as to have a legitimate tendency to establish his guilt, or to prove any material element thereof. It is true that defendant’s volunteered statement concerning his previous handling of titles and plates was in evidence, but that did not justify the State in establishing such acts as crimes. Defendant’s own testimony was before the jury as a statement of fact for whatever it might be worth. Obviously, it was proper for counsel for the State to ask defendant concerning his handling of the supposed title and the identification plate on the car directly involved; that would go to the question of motive and intent with reference to the present charge. On the admissibility of the rebuttal testimony to prove intent defendant cites State v. Mangiaracina, Mo., 350 S.W.2d 796, and State v. Woolsey, Mo., 328 S.W.2d 24. The facts in those cases as well as the law declared, are so wholly irrelevant here that it is not necessary to discuss them. In view of all the foregoing, we need not discuss the further contention that the rebuttal evidence was admissible as an impeachment of the defendant.

A point is also made of error in the admission of certain testimony of the witness Rubin concerning the “procedure” for handling titles on cars which are salvaged. What we have already said should cover that situation, and we do not discuss the point.

Although what we have said necessarily results in a reversal of this judgment, one additional matter must be discussed since the case will be remanded. Defendant’s last two points, as we thus consolidate them, are that there was a fatal variance between the indictment and Instruction No. 2, and that the indictment was not sufficient to inform him adequately of the offense for which he actually was tried. The indictment charged the theft of the car in the City of St. Louis; the evidence showed that the owner last saw his car intact in St. Louis County on the evening of November 5, 1963; he later saw it, partly dismantled, in defendant’s lot in the City of St. Louis on the next morning. Instruction No. 2 (the State’s principal instruction) submitted to the jury a theft hypothesized as committed “at the County of St. Louis * * We hold that this constituted a fatal variance between the charge and the submission. We do not pretend to know whether the defense would have been different had the charge and the instruction conformed, nor need we inquire; counsel say that defendant was thus prevented from presenting a possible defense of alibi to the charge of a theft in St. Louis County. The place of an offense should be charged-in an indictment with reasonable certainty, both to establish venue and to properly inform the defendant. 27 Am.Jur., Indictments and Informations, §§ 75-76. The allegation of a place in the indictment is of no value, either for venue or information, if the State is to be allowed to fix the crime at a different location at the trial. The State relies upon § 541.070, Amended Laws 1955, which is as follows: “When property is stolen or taken by robbery in one county and brought into another the offender may be prosecuted for such stealing or robbery in the county into which such stolen property was brought in the same manner as if such stealing or robbery had been committed in that county.” A similar act has been on our statutebooks since 1835. RSMo 1835, p. 483, § 14. The basic theory of a larceny is a wrongful taking of possession from the owner, a trespass. State v. LaFrance, Mo., 165 S.W.2d 624, 625, 146 ALR 529; thus a larceny is complete when the property is wrongfully taken from the owner’s possession. This concept has been considerably broadened in our stealing statute, § 560.156, Laws 1955, p. 507, which now includes the prior offense of embezzlement {and others) as well as larceny. The transportation statute, § 541.070, supra, was amended in 1955 to conform to the stealing statute. Questions have arisen in the past as to whether the transportation of stolen property from the county where it was stolen in this state into another county constitutes a new or continuing offense of larceny or stealing in the second county, or whether § 541.070 merely provides an alternate venue for prosecution of the offense committed in the original county. State v. Bockman, 344 Mo. 80, 124 S.W.2d 1205, 1206, and cases therein cited; State v. Parker, 301 Mo. 294, 256 S.W. 1040. And see the excellent discussion in Washington University Law Quarterly, 1958, No. 1, p. 33 et seq., particularly pages 48-53, and 80-83, and cases cited in Note 77 on page 50. That question may better be discussed in a case where it is directly and necessarily involved. Bockman, supra, considers the section as a venue statute, and it is the last decision to which we have been cite'd. Here the State alleged the offense in one county (the City of St. Louis) and submitted it as occurring in a different county. That is not permissible under any construction of § 541.070 for, even under the broadest construction of the transportation theory, the offense must be both alleged and submitted as occurring in one county. Upon remand the State may pursue such course as it deems proper, but it must be a consistent one. We do not pretend to hold whether or not the evidence would have supported a charge of stealing in St. Louis County, for no objection is made to the sufficiency of the evidence, and there was no such charge; we merely hold that there was a fatal variance between the charge and the submission, and that the reasonable and probable result was to mislead the defendant. He is entitled to know the nature and cause of the accusation. State v. Fenner, Mo., 358 S.W.2d 867, 870. And this, as we conceive it, applies to the accusation made at the trial, as well as that stated in the information or indictment.

The cited case of State v. Dobson, Mo., 303 S.W.2d 650, certiorari denied 355 U.S. 964, 78 S.Ct. 554, 2 L.Ed.2d 539, is inapplicable here because that prosecution involved the theft of property outside Missouri, for which the defendant was prosecuted in Missouri. The statute involved there was § 541.040, which specifically provides that the “stealing or robbery may be charged to have been committed, * * * in any county into * * * which * * * such stolen property shall be brought.” Section 541.070 contains no such authorization, and the inference is perhaps to the contrary by virtue of the words: “* * * as if such stealing or robbery had been committed in that county.” (Italics are ours.) We suggest that, in an offense which would have constituted larceny under the old law, the State might well allege the commission of the offense of stealing in the original county, the transportation of the property into the second county, and the institution of the prosecution there under authority of § 541.070. See People v. Prather, 134 Cal. 386, 66 P. 483, 724; People v. Bundy, 324 Ill. 190, 154 N.E. 900; and note, again, State v. Bockman, 344 Mo. 80, 124 S.W.2d 1205.

For the reasons stated, the judgment is reversed and the cause remanded for such further proceedings as the State may see fit to take.

All of the Judges concur.

        . All statutory references are to RSMo 1959, V.A.M.S.


text:
    STATE of Missouri, Respondent, v. Robert Joe MASON, Appellant.
    No. 51203.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Wilbur L. Pollard, Sp. Asst. Atty. Gen., North Kansas City, for respondent.
    Austin F. Shute, Kansas City, for appellant.
   WELBORN, Commissioner.

Robert Joe Mason was charged by information and convicted of robbery in the first degree in the Jackson County Circuit Court. The jury fixed the punishment at five years’ imprisonment. After motion for new trial had been overruled, defendant appealed to this court.

Because of the issue raised on this appeal, only a brief recital of the facts is necessary. Two state’s witnesses, a Mrs. Miller and a Mrs. Ladd, employees of one Southern Pride Doughnut Shop located in Kansas City, identified Mason as one of two men who entered the store on February 23, 1964. The man other than Mason carried a gun which he pointed at Mrs. Miller and ordered her to give him her money. The order was obeyed and the two men left with approximately $25.00 taken from the cash register.

On this appeal the sole matter presented as grounds for reversal of the -conviction relates to testimony by the state’s witnesses, Mrs. Miller and Mrs. Ladd, and by a police officer who investigated the offense. All testified that, following the preliminary hearing in Jackson County Magistrate Court, the defendant, who was seated on one side of the counsel table, leaned across the table and said to Mrs. Miller, seated on the other side: “I will get you before they try me.” On this appeal, the appellant contends that this testimony constituted evidence of another offense committed by the defendant not directly tending to -prove his guilt of the crime for which he was prosecuted and that its admission was prejudicial error.

However, it has long been recognized that evidence of threats by the defendant against witnesses against him may be produced in order to establish his guilt on the original charge.

In State v. Mathews, 202 Mo. 143, 100 S.W. 420, evidence that the defendant had threatened the prosecuting witness was held admissible against the objection that it was evidence of another crime. In holding that there was no error in the admission of such evidence, the court stated (202 Mo. 148, 100 S.W. 421):

“ * * * This evidence was, we think, properly admitted for the purpose of showing an attempt upon the part of the defendant, by promises and threats, to dissuade or prevent the prosecuting witness from appearing against him.
“The defendant having resorted to unfair means to defeat the ends of justice, he must suffer the consequences. In Fulkerson v. Murdock, 53 Mo.App. l. c. 154, it is said-: ‘Evidence of the fact of an attempted -subornation is admissible as an admission by conduct that the party’s cause is an unrighteous one.’
“In Underhill on Crim.Ev., sec. 121, it is said: ‘Evidence to show that the accused has attempted to fabricate or procure false evidence, or destroy evidence against himself, * * * is always admissible as showing a consciousness of guilt.’ [State v. Alexander, 119 Mo. [447,] 461, [24 S.W. 1060.] ]”

See also State v. Smith, 355 Mo. 59, 194 S.W.2d 905; 2 Wigmore on Evidence (3rd ed.), §§ 277-278, pp. 119-120.

Appellant here argues that the alleged threat may well not have indicated guilt; that it might have been the remark of an angry innocent man. We find no such ambiguity in the remark attributed to appellant as would preclude its consideration by the jury as bearing upon the guilt of the appellant.

We find no error in the record matters which we have examined pursuant to Supreme Court Hule 28:02, V.A.M.R.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the -Judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Roosevelt JOHNSON, Appellant.
    No. 51219.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, William O. Sawyers, Jr., Sp. Asst. Atty. Gen., St. Joseph, for respondent.
    Lee Vertís Swinton, Kansas City, for appellant.
   PRITCHARD, Commissioner.

On September 30, 1964, by jury verdict', defendant was found guilty of the crime of burglar-y, second degree. Having ten days thereafter to file his motion for new trial under Supreme Court Rule 27.20 (a), V.A.M.R., and not having been granted additional time by the trial court, defendant filed his motion for new trial on October 12, 1964. The time fixed by said rule being mandatory, State v. Murray, Mo., 280 S.W.2d 809, nothing in the motion for new trial is preserved for review, and we are precluded from consideration of matters set forth therein. State v. Parker, Mo., 310 S.W.2d 923; State v. Franklin, Mo., 379 S.W.2d 526. We limit our review to the record proper and those matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R.

The case was tried upon an amended information charging burglary in the second degree of the residence of one Mildred L. Lloyd, in Kansas City, Jackson County, Missouri. It was also alleged that defendant had on May 3, 1962, been convicted of a prior felony of burglary in the second degree and was duly sentenced to serve a term of three years in the Missouri Penitentiary, which was served until commutation of sentence on April 7, 1964. The amended information is in due form and charges the crime within Section 560.-045, RSMo 1959, V.A.M.S.; and the allegation of a prior offense is within the Habitual Criminal Act, Section 556.280, RS Mo 1959, V.A.M.S. The verdict is responsive to the issue. The court assessed defendant’s punishment on the day of the verdict and later, on November 19, 1964, granted defendant allocution, then entered judgment of conviction and sentenced defendant to five years imprisonment in the Department of Corrections, State of Missouri, which is within the permissible limits of Section 560.095(2), RSMo 1959, V.A. M.S., of “not less than two nor more than ten years.” We find no error in said matters which we are required to review.

The judgment is affirmed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Charles HAYES, Appellant.
    No. 51230.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City,. Claude W. McElwee, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Robert B. Curtis, St. Louis, for appellant.
   STOCKARD, Commissioner.

Charles Hayes was found guilty of assault with intent to ravish with malice aforethought, Section 559.180 RSMo 1959, V.A.M.S., and as an habitual offender, see Section 556.280 RSMo 1959, V.A.M.S., his punishment was assessed by the trial judge at imprisonment for a period of ten years.

The jury verdict was returned on October 13, 1964, and final judgment was entered on November 30, 1964. Defendant’s notice of appeal was filed on December 15, 1964.

Supreme Court Rule 28.03, V.A. M.R., provides that an appeal in a criminal case “shall be taken by filing a notice of appeal * * * within the same time after final judgment as provided for civil cases.” Pursuant to Civil Rule 82.04, V.A.M.R., a notice of appeal in civil cases is required to be “filed not later than ten days after the judgment * * * appealed from- becomes final.” Supreme Court Rule 31.02, V.A.M.R., provides that the trial court “may not enlarge the period * * * for taking an appeal as provided by these Rules.” The notice of appeal in this case was filed fifteen days after the judgment became final. The “timely filing of a notice of appeal is ‘the vital step’ for perfecting an appeal and is necessary to invoke appellate jurisdiction.” State v. Robbins, Mo., 269 S.W.2d 27, 29; State v. Domini, Mo., 391 S.W.2d 206. The notice of appeal in this case was not timely and this court has no appellate jurisdiction of this case. State v. Johnson, Mo., 382 S.W.2d 674.

The appeal is dismissed.

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.