text:
    William R. EDGAR, Executor of the Estate of Charles Monroe Fitzpatrick, Deceased, (Plaintiff) Respondent, v. Carl FITZPATRICK, Vesta Fitzpatrick and June Hitt, (Defendants), Marvin Fitzpatrick, Opal Williams and Jessica Rice, (Defendants), Appellants, and Faye Varnum, Guardian of the Person and Estate of Jettie Fitzpatrick, Incompetent, (Defendant), Respondent.
    No. 50369.
    Supreme Court of Missouri, En Banc.
    April 13, 1964.

      William H. Wyne, Jr., and Ray T. Dreher, Clayton, for defendants-appellants.
    Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, for defendant-respondent Faye Varnum, guardian of the person and estate of Jettie Fitzpatrick
    William R. Edgar, Jr., Ironton, for respondent executor.
    John B. Gage, Kenneth V. Butler, of Gage, Hodges, Moore, Park & Kreamer, Kansas City, for amicus curiae.
   HYDE, Judge.

Action for declaratory judgment by the executor of the estate of Dr. Charles Monroe Fitzpatrick, deceased, to construe his will, to determine whether personal property referred to in a revocable declaration of trust should be considered part of his estate, and to determine the distribution required to be made. The principal issue is whether personal property (shares of Keystone Fund of Canada, Ltd.) referred to in the declaration of trust made by him, before he made his will, should be considered as a part of his estate in determining the amount to be distributed to his widow. The trial court found in favor of the widow, entered judgment that the value of the trust property should be included in determining the amount which was to go to the widow and ordered all legacies and devises abated proportionately to realize the necessary funds. The three children of Dr. Fitzpatrick by a former marriage, who were named in the declaration of trust, have appealed.

The Springfield Court of Appeals reversed the judgment and remanded with directions to enter a decree which would not include the value of the trust property-in determining the amount to go to the widow (Edgar v. Fitzpatrick, Mo.App., 369 S.W.2d 592),' and on application of the widow’s guardian we transferred the case here. The “Revocable Declaration of Trust” and paragraph 7 of Dr. Fitzpatrick’s will (making provision for his widow) are set out in full in the opinion of the Court of Appeals (369 S.W.2d 594-595) and are incorporated herein by reference. We also refer to the opinion of the Court of Appeals for other material facts.

Sec. 474.150, subd. 1 provides: “Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse’s share, as in case of his election to take against the will.” The notes of the 67th General Assembly committee say this “is similar in effect to the case law in this state.” Thus the issue would still be whether the gift involved was in fraud of the marital rights of the surviving spouse. Certainly the provision that such a gift “be treated as a testamentary disposition” means that it would become an estate asset when the statute is applicable to the situation. In this case, the Court of Appeals (369 S.W.2d 1. c. 602) said “since we must determine the question upon the test of motive and purpose, we are forced to conclude that the evidence does not show the transfer was in fraud of the widow’s marital rights.” The basis of this view of the Court of Appeals was that the amount of the assets involved in the transfer were not so disproportionate (about one-third of property he then owned) as to permit inference of fraudulent intent to deprive his wife of her marital rights, relying on Potter v. Winter, Mo.Sup., 280 S.W.2d 27, and Wahl v. Wahl, 357 Mo. 89, 206 S.W.2d 334. Although the income tax claim against Dr. Fitzpatrick later reduced his estate to such an extent that the final result would be disproportionate, the Court of Appeals noted there was no evidence that he knew of this claim.

Support for the view of the Court of Appeals may be found in the American Law Institute Restatement of Trusts, Second, Sec. 57, stating: “Where an interest in the trust property is created in a beneficiary other than the settlor, the disposition is not testamentary and invalid for failure to comply with the requirements of the Statute of Wills merely because the settlor reserves a beneficial life interest or because he reserves in addition a power to revoke the trust in whole or in part, and a power to modify the trust, and a power to control the trustee as to the administration of the trust.” Comment c, Sec. 57, states: “The rule stated in this Section is applicable although the trust is one which could not be created by will. * * * Thus, if it is provided by statute that the wife of a testator shall be entitled to a certain portion of his estate of which she cannot be deprived by will (see § 146A), a married man can nevertheless transfer his property inter vivos in trust and his widow will not be entitled on his death to a share of the property so transferred, even though he reserves a life estate and power to revoke or modify the trust. Where, however, an outright gift would not operate to deprive the wife of her distributive share, a trust created under the same circumstances would be equally ineffective.”

There is authority for holding that a trust reserving such broad powers as this one does is illusory and not real and therefore ineffective to deprive a wife of her marital rights. A leading case on this subject is Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966, 112 A.L.R. 643, a more extreme case than this because the trust was created much nearer to the time of the testator’s death and transferred all his property.' (See discussion of this case in 1 Scott on Trusts 472, Sec. 57.5.) In that case, the settlor reserved the power to revoke the trust and provided that the trustees should be subject to his control during his lifetime and should exercise their powers only in such manner as he should direct. The Court said: “Perhaps ‘from the technical point of view such a conveyance does not quite take back all that it gives, but practically it does.’ That is enough to render it an unlawful invasion of the expectant interest of the wife. * * * Judged by the substance, not by the form, the testator’s conveyance is illusory, intended only as a mask for the effective retention by the settlor of the property which in form he had conveyed.” See annotation 49 A.L.R.2d 521. In this case, the settlor was the sole trustee and it would seem that he had every power he would have over his own property not in trust. See Atlantic National Bank of Jacksonville, Florida v. St. Louis Union Trust Co., 357 Mo. 770, 211 S.W.2d 2. No doubt, nearness to time of death, the proportion of the settlor’s property involved and fairness to the wife of the trust involved are all matters to be considered; but the evidence in this case does not clarify the situation as to all these matters.

However, we find an even more essential reason why the validity of this claimed trust cannot be sustained, namely: "A trust cannot be created unless there is trust property.” A.L.I. Restatement of Trusts, Second, Sec. 74. “An interest which has not come into existence * * * cannot be held in trust.” Sec. 75, Restatement of Trusts. This applies, Comment a, Sec. 75, “where the settlor has not acquired an interest in the thing which is the subject matter of the purported trust, although other persons have interests in it.” Furthermore, “A trust cannot be created unless the subject matter is definite or definitely ascertainable.” Sec. 76, Restatement of Trusts, Comment a, Sec. 76, states: “A trust is not created if the identity of the subject matter remains wholly in the control of the settlor, or if the description of it is so indefinite that it cannot be ascertained.” Comment b, Sec. 76, states: “Although no trust is created where the subject matter is not definite or definitely ascertainable, a trust may subsequently arise when it becomes definite or definitely ascertainable if the trustee at that subsequent time manifests an intention to create a trust.” No declaration making a subsequent manifestation of intent to create a trust in specific property appears in this case.

It is also stated in Sec. 86, Restatement of Trusts: “An expectation or hope of receiving property in the future cannot be held in trust.” Comment c, Sec. 86, states: “If a person promises to declare himself trustee of property which he hopes to acquire in the future or to transfer such property to another in trust, or if he purports to declare himself presently trustee of such property or to transfer such property to another in trust, no trust arises even when he acquires the property in the absence of a manifestation of intention at that time.” There is no claim of any subsequent declaration of trust in this case.

The declaration of trust herein involved, executed July 29, 1957, designated no amount of money for the trust, specified no number of shares intended, described no specific property owned by the settlor, and referred to no schedule of included property. It only stated “having purchased or declared my intention to purchase certificates of participation in one or more Series of the Keystone Custodian Funds and/or shares of Keystone Fund of Canada, Ltd., do hereby declare that such certificates or shares, which may he under a Keystone Open Account, are to be in trust” The emphasized part looked to the future and even the reference to Keystone Funds left uncertain the Keystone securities intended. The inventory of Dr. Fitzpatrick’s estate showed in his name as trustee Keystone Custodian certificates all dated after the date of the declaration of trust, namely, August 13, 1957, August 16, 1957, August 19, 1957, November 1, 1957 and June 3, 1959. There was testimony that Dr. Fitzpatrick owned some Keystone shares at the time he executed the declaration of trust which were later reissued in his name as trustee; but these were not specified in the declaration of trust by either number or value and the declaration indicates that it also was intended to apply to future acquired property, necessarily impossible to specifically describe. Dr. Fitzpatrick, at the time of his death, also owned some Keystone shares issued “in his name individually” so it appears that all of his shares were not intended to be included in the trust. An appropriate illustration under Sec. 76, Restatement of Trusts, is: “A declares himself trustee of ‘the bulk of my securities’ in trust for B. No trust is created.” The statement in the declaration of trust as to the property to be included was just as indefinite as that.

On this subject, it is stated in Scott on Trusts, Sec. 75: “A person cannot create a trust of property which he does not own. It is not enough that he once owned it, and it is not enough that he expects to own it in the future. He can, it is true, make a contract to create a trust in the future, provided that the requirements for the formation of a contract are complied with. He cannot, however, create a present trust, either by making a transfer to another in trust or by declaring himself trustee, unless he is the present owner of an interest in the property.” Sec. 76: “A trust cannot be created where the subject matter is not definite or definitely ascertainable from facts existing at the time of the creation of the purported trust. Until the trust property is ascertained, no trust arises. Where the settlor purports to transfer property in trust, the conveyance is ineffective to transfer the property unless it is ascertained. Similarly where the settlor purports to declare himself trustee of property not yet ascertained, no trust is created.” Sec. 86: “It is obvious that a person cannot create a trust of property in which he has no interest. The mere fact that he hopes and expects to acquire the property in the future does not give him any interest of which he can be trustee, or of which he can make another trustee, before he acquires it. Where he purports to create a present trust of property which he does not own but which he expects thereafter to acquire, no trust is presently created. This is true whether he purports to make a transfer in trust or to declare himself trustee.”

We said in Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, 139, “[A] trust must arise at the time it is attempted to be created, instead of being brought forth by subsequent and independent circumstances. * * * In order to create a valid express trust, it is necessary that some estate or interest be conveyed to the trustee, and, when the instrument creating the trust is other than a will, that estate or interest must pass immediately.” See also Van Studdiford v. Randolph, Mo.App., 49 S.W. 2d 250, 255; 54 Am.Jur. 44, Trusts, Sec. 32; 89 C.J.S. Trusts § 9, page 720.

We hold that no trust was created by the declaration of July 29, 1957 and, therefore, the Keystone shares must be considered as assets of the estate of Dr. Fitzpatrick. The trial court did not base its judgment on these reasons (see 369 S.W.2d 1. c. 596) but a correct decision will not be disturbed because the court gave a wrong or insufficient reason therefor. See cases cited West’s Missouri Digest, Vol. 3, Appeal and Error, Certainly this should apply to a correct result in a declaratory judgment action. Therefore it is ordered that the judgment be modified in accordance with the views herein expressed and as modified affirmed.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Wallace Kirk DAVIS, Respondent, v. Arthur Harry WERREMEYER, Appellant.
    No. 50253.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Harry M. James, John D. Hasler, St. Louis, Allen D. Churchill, St. Louis, of counsel, for appellant.
    Gerritzen & Gerritzen, by Ray A. Ger-ritzen, St. Louis, for respondent.
   HOUSER, Commissioner.

A trial jury returned a verdict for $15,-663 in favor of Wallace Kirk Davis in his personal injury and property damage suit against Arthur Harry Werremeyer. Defendant has appealed from the judgment entered upon the verdict, following the filing of an unavailing motion for new trial.

Plaintiff’s Chevrolet collided with defendant’s automobile in a three-vehicle collision on Lindbergh Boulevard in St. Louis County, a four-lane, north-south trafficway. A Volkswagen Microbus, proceeding south, its driver intending to turn left into a filling station, stopped in the southbound lane next to the center line to permit northbound heavy traffic to pass. Defendant, driving a Thunderbird, coming from the north in the southbound lane next to the center line at a speed of 45-50 miles an hour, approached and struck the Microbus from the rear, then struck plaintiff’s Chevrolet.

Defendant testified that he did not see the Microbus until he was 150 feet north of it, although under the evidence he could have seen it for as much as 443 feet. According to defendant, when he saw the Microbus in front of him and that it was stopped in his path he made a very sudden, hard application of the brakes. Proceeding on the straight highway the brakes held and nothing happened for 75 feet, but as he kept applying the brakes the Thunderbird went into a skid or slide, went over into the northbound lane, spun sideways and went sliding down the highway “sideways” for another 75 feet, started to pivot counterclockwise, swung around “somewhat across the lane” and on the wrong side of the highway, going south and east sideways, until the right rear of the Thunderbird hit the rear of the Microbus. Then the Thunderbird went another 5 or 10 feet and, either “instantaneously” or within a couple of seconds and while still in motion, collided with plaintiff’s Chevrolet, which was northbound in the lane next to the center line. Defendant could not say what happened except that he applied his brakes and that the car went into a skid. He could not say whether he attempted to turn the steering wheel in any direction at this time, and testified that he lost control of the Thunderbird.

Plaintiff testified that when he first took particular notice of the Thunderbird in the oncoming line of traffic the Thunderbird was about 30 feet north of the Microbus and plaintiff’s Chevrolet was 50 feet south of the Microbus. Plaintiff was then traveling 40-45 miles an hour. Plaintiff observed that at that instant the Thunderbird started to veer over and come across into plaintiff’s lane, swerving sideways, “coming sideways” into the lane of traffic the Chevrolet was occupying. The Thunderbird kept coming sideways, at 50 miles an hour. Plaintiff applied his brakes, reducing his speed from 40 to 20 miles an hour, the Thunderbird still moving and still coming sideways in the northbound lane until it collided with the Chevrolet. At the moment of impact the front portion of the Thunderbird was in the northbound lane, the rest of the Thunderbird in the southbound lane, astraddle the center line, headed generally southeasterly. When the Thunderbird and Chevrolet came to rest they were both in the northbound lanes, headed north, parallel to each other.

In this factual situation plaintiff offered and the court gave three verdict-directing instructions, No. 1 on “vigilant watch and lookout,” No. 2 on excessive speed, and No. 3, which it is alleged submitted negligent failure to drive to the right of the center line so as to pass plaintiff’s automobile without interference, and give plaintiff his half of the major traveled portion of the highway (violation of § 304.015, par. 5, V. A.M.S.), combined with negligent failure to keep a “vigilant watch,” stop or slacken speed (antecedent negligence).

Defendant-appellant’s first complaint is that the court erred in giving Instruction No. 1 on lookout, directing a verdict for plaintiff upon a finding that defendant “operated” his Thunderbird southwardly on Lindbergh, and east of the center line and over and upon the wrong side of the highway; that while defendant was “operating” his Thunderbird southwardly there was a Volkswagen Microbus standing still in the inside southbound lane “at said point mentioned in evidence”; that by keeping a vigilant watch and lookout for plaintiff’s automobile and the Microbus defendant could have discovered them “in time thereafter to have avoided a collision” between plaintiff’s and defendant’s automobile; that defendant failed to exercise the highest degree of care to keep a vigilant watch and lookout, and that such failure constituted negligence, “and that defendant knew, or by the exercise of the highest degree of care, would have known that a collision was likely to occur if he did not take precaution to prevent a collision,” and that as a direct result of such failure there was a collision with the Microbus and immediately thereafter a collision with plaintiff’s automobile “at said point mentioned in evidence,” with consequent injury and damage to plaintiff, and that plaintiff at all times was exercising the highest degree of care in the operation of his automobile.

Defendant claims that No. 1 completely ignored the essential factual element of the skidding of defendant’s car, and does not hypothesize all of the necessary facts. Defendant asserts that his Thunderbird was not guided or driven or operated sideways, as submitted, but that the Thunderbird skidded sideways onto the wrong side of Lindbergh. Citing and relying upon Evans v. Colombo, Mo.Sup., 319 S.W.2d 549, 551— 552, defendant claims that No. 1 ignored the fact of skidding, which was “one material phase of the whole issue of negligence,” and therefore was not framed with reference to the facts; that the issue actually tried was whether the crossing of the center line by the Thunderbird onto the wrong side of Lindbergh and the subsequent collisions were “the result of negligent operation prior to the skid or accidental skidding”; that under Doyle v. Wilmesherrer, Mo.Sup., 358 S.W.2d 837, 841, a Thunderbird is not driven or guided sideways and if it moves sideways and injures someone in so doing “the facts must be hypothesized from which the jury may find that the cause of that movement was negligence.” Defendant says that No. 1 erroneously required a finding that defendant operated his car over and upon the wrong side of the highway, because the evidence showed that he did not drive and propel it over there; that No. 1 should have required a finding that defendant negligently operated the Thunderbird in such a manner as to cause it to skid across the highway, by failing to keep a lookout, as a result of which defendant was required to take evasive action which resulted in defendant skidding onto the wrong side of the road, colliding with the Volkswagen in the process and ultimately colliding with plaintiff’s car. Tied in with these considerations is the objection that the instruction assumes that the “operation” of defendant’s car on the wrong side of the road was the result of operation across the center line, thus excluding the possibility of being there by reason of skidding in an attempt to avoid colliding with the Volkswagen. Defendant also excepts to the language “at said point mentioned in evidence” on the ground that it is vague and confusing and gives the jury a roving commission as to when defendant could have discovered plaintiff’s car by maintaining a vigilant watch.

The instruction attacked is a lookout instruction. “In that type of submission it is generally considered sufficient to hypothesize failure to keep a lookout and require a finding that such failure was negligence and directly caused the collision.” Moore v. Ready Mixed Concrete Co., Mo. Sup., 329 S.W.2d 14, 25. No. 1 meets these requirements. It sufficiently hypothesizes a factual situation which gave rise to a duty on defendant’s part to maintain a lookout and his failure to keep such a lookout, and submits that such failure was negligence, and causation. Language that defendant “operated” his automobile east of the center line and over and upon the wrong side does not make the instruction bad. Such operation was not submitted in No. 1 as an independent act of negligence upon which plaintiff was counting for an ultimate finding of negligence. Failure to keep a “vigilant watch” and lookout was submitted. That the crossing over was characterized as “operation” rather than “skidding” does not affect the validity of the submission. That defendant skidded across the center line (as distinguished from driving or guiding the vehicles across) was not a fact essential to be found to authorize a verdict for plaintiff. Skidding was not the cause of the collisions, but was the result of defendant’s antecedent negligence. The reference to “op•eration” was nothing more than connective tissue leading up to the fact of the colli•sions. Whether defendant’s Thunderbird crossed the center line with the defendant in control of it, driving and operating in the conventional sense, or crossed over while the car was skidding and out of control, was immaterial to plaintiff’s submission on the theory of failure to keep a lookout. The issue was whether defendant failed to see the Volkswagen Microbus and plaintiff’s Chevrolet in time to avoid the collision by reducing the speed of his fast-moving Thunderbird and keeping it under control as he approached the two cars. The act relied upon to form the basis of a finding of negligence in No. 1 (failure to keep a lookout) occurred in time prior to the commencement of the skidding. Skidding was a subsidiary evidentiary fact. Under the evidence defendant, as a result of his failure to keep a lookout, suddenly found it necessary to apply his brakes hard. Defendant testified that the application of the brakes at the speed he was going was the “only thing” that caused the Thunderbird to go over into the northbound lanes. Under these circumstances the description of the going over as “operation” rather than “skidding” was not prejudicial. Facts from which the jury could find that the cause of the movement over was negligence were sufficiently hypothesized. In this connection see Anderson v. Bell, Mo.Sup., 303 S.W.2d 93.

Nor was there an improper assumption that defendant operated the Thunderbird across the center line. It was required to be found as a fact, and if plaintiff desired any more accurate terminology, or an equating of skidding with operating, or deemed the fact not clearly or sufficiently hypothesized in any particular, he should have offered a clarifying or amplifying instruction. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 501.

The effort to stretch Evans v. Colombo, supra, to fit the instant case must fail. The instruction condemned in Evans was not a lookout instruction, but a “crossing over the center line” instruction in which the crossing was the negligence counted upon, and where the cause of the crossing was not in issue and was not submitted. The instruction commenced at the time defendant crossed over the center line of the cross street. The evidence clearly showed that defendant’s automobile skidded across the center line. Not merely an “evidentiary fact,” this evidence of skidding “pervaded the whole case”; was “a vital element in the case,” “a material phase of the whole issue of negligence.” The case was tried on the theory that the car skidded. The instruction did not define the issue actually tried, but completely ignoring the matter of skidding, hypothesized only the crossing of the center line, the collision and the injury. Thus it enabled the jury to return a verdict for plaintiff if defendant’s' automobile crossed the center line and struck plaintiff’s automobile, “regardless of the reason for the crossing, whether excusable or inexcusable, without any consideration of the manner in which the crossing occurred (while skidding) and without requiring the finding of any negligent act on the part of defendant which caused the skidding-crossing.” Evans v. Colombo, Mo. App., 311 S.W.2d 141, 1. c. 146. In No. 1 the cause of the crossing of the center line (failure to keep a lookout, followed by hard jamming of the brakes) was the issue tried and submitted; the crossing and the skidding in so doing was a mere evidentiary fact — not an element vital to the plaintiff’s case — and the negligent act which caused the skidding-crossing was required to be found. The cases are not apposite.

We have examined the numerous other cases cited by defendant under Point I, A and B, and find them distinguishable either on the facts or the principles of law announced therein.

The reference to “said point mentioned in evidence” is not vague and confusing, and does not give the jury a roving commission as claimed. Defendant concedes that it has been held “that a specific location of the automobile the other party is charged with the duty of seeing is not an essential fact so long as the instruction properly states the duty to keep a lookout and that the failure to do so proximately caused the collision,” but seeks to distinguish those cases because none of them involved multi-car collisions with the final collision involving the plaintiff. We do not find that fact to be a distinguishing factor in this case.

Defendant’s second point is that the court erred in giving Instruction No. 2, on excessive speed, directing a verdict for plaintiff upon a finding that while plaintiff was “operating” his automobile north on Lindbergh Boulevard the defendant was “operating” his automobile southwardly thereon, “and that the defendant’s automobile spun sideways and over onto the wrong side of Lindbergh Boulevard and the right rear thereof struck a Volkswagen Microbus stopped and standing still there, and immediately thereafter there was a collision between plaintiff’s automobile and defendant’s automobile in the inside northbound lane of Lindbergh Boulevard,” and that “at and prior to the time of said collision the defendant drove and operated his Thunderbird automobile at a rate of speed that was high, excessive and unreasonable under all the circumstances that you find and believe from the evidence then and there existed, and that the rate of speed was such as to endanger the life and limb of plaintiff,” and that in driving at said rate of speed the defendant failed to exercise the highest degree of care and was negligent, and that defendant knew, or by the exercise of the highest degree of care would have known, that a collision was likely to occur if he did not take precaution to prevent a collision, and that as a direct result there was a collision between plaintiff’s and defendant’s automobiles with injury and damage to plaintiff and that plaintiff was exercising the highest degree of care in the operation of his Chevrolet automobile.

Defendant claims that No. 2 is “too broad, indefinite, uncertain and confusing, in that it relates a high, excessive and unreasonable rate of speed to ‘said collision,’ when the instruction refers to two separate collisions, and there is no evidence to support a charge of high and excessive speed at the time of the collision with plaintiff’s car.” Defendant seeks to draw the fine distinction that there is no evidence of high and excessive speed of the defendant’s Thunderbird after the collision with the Microbus and at the time of the collision with the plaintiff’s Chevrolet.

This argument is unrealistic and impractical. “Said collision” occurs in the clause which immediately follows the reference to “a collision between plaintiff’s automobile and defendant’s automobile.” This is the only time the word “collision” is used in this frame of reference, and therefore the term is not indefinite or uncertain. “Said collision” is not confusing. Since the collision with plaintiff’s automobile immediately followed the striking of the Microbus, and since plaintiff obviously was suing for damages resulting from the collision between plaintiff’s and defendant’s automobiles, the term “said collision” must have been understood by the jury to refer to the latter. There was ample evidence to support the charge of excessive speed, namely, that the Thunderbird was “moving very fast — around SO miles an hour,” sliding down the highway sideways, at the time of the impact with plaintiff’s Chevrolet.

Defendant claims that No. 2 “completely ignores the factual element of skidding and does not hypothesize all the necessary facts in regard thereto.” On the basis of Doyle v. Wilmesherrer, Mo.Sup., 358 S.W.2d 837, defendant makes the argument that an automobile is not driven or guided sideways and if it moves in that direction and inflicts injury the plaintiff must hypothesize facts from which the jury may find that the cause of the movement was negligence; that this instruction does not require a finding that excessive speed caused the sideways spin, but improperly submits a finding that at and prior to the time of the collision defendant “drove and operated” his automobile at an excessive rate of speed, which would include the time defendant’s car was on the wrong side of the highway. A careful reading of No. 2 satisfies us that it properly hypothesizes all necessary facts to submit the charge of negligently operating the Thunderbird at an excessive speed, causing the collision with plaintiff’s automobile, immediately following the spinning of the Thunderbird sideways and over onto the wrong side of the highway and the striking of the Microbus; and that under No. 2 the jury could find that the movement was caused by defendant’s negligent high speed.

Defendant claims that No. 2 is “misleading in that contrary to the evidence it requires the jury to find that the Volkswagen was on the ‘wrong side of Lindbergh’ when struck by the defendant.”

All of the evidence indicated that the Volkswagen was on the west side of Lindbergh at all times, which was the “right side” for it. The only evidence that any of the three vehicles was on the “wrong side” was that defendant’s Thunderbird came over onto its wrong side. That the Thunderbird was on the wrong side was a fact conceded by both parties. In this situation the reference in No. 2 to “the wrong side of Lindbergh,” following the direct reference to the course and movements of defendant’s automobile, reasonably could not have been interpreted as a reference to the Volkswagen, but plainly referred to defendant’s Thunderbird.

Defendant’s third point is that the court erred in giving Instruction No. 3 which, after instructing the jury on the duty of the operator of an automobile to operate it upon the right half of the highway, and that when two motor vehicles are proceeding in opposite directions they shall pass each other to the right and each driver shall give the other one half of the main traveled portion of the highway, directed a verdict for plaintiff upon a finding that plaintiff was operating his Chevrolet north-wardly ; that while defendant was “operating” his Thunderbird southwardly on Lindbergh and east of the center line and on the wrong side of Lindbergh, the Microbus was stopped and standing still facing south on the highway; that there was a collision between the Thunderbird and the Microbus, and a second collision between the Thunderbird and plaintiff’s automobile; that as the Thunderbird approached the plaintiff’s automobile the Thunderbird “was spinning sideways east of the center line” and on the left hand side and wrong side of Lindbergh, “and sideways into and against plaintiff’s automobile”; that defendant “failed to drive his Thunderbird automobile to the right side of the center line of Lindbergh Boulevard so as to pass the plaintiff’s automobile without interference, after defendant * * * saw, or by the exercise of the highest degree of care, could have seen the * * * Microbus stopped and standing still on said highway there and plaintiff’s automobile approaching on said highway, if so, in time to have stopped his said Thunderbird automobile and slackened the speed thereof and passed the plaintiff’s automobile without interference, if you so find defendant * * * could have done so, and in so doing would have given the plaintiff the northbound half of the major traveled portion of Lindbergh Boulevard there, if you so find, then if you so find the facts to be, the Court instructs you that the defendant * * * was guilty of negligence, and if you find that such negligence” directly caused the collision, injury and damage to plaintiff and that plaintiff at all times was exercising the highest degree of care in the operation of his said automobile, and was operating his automobile on the right hand side of Lindbergh Boulevard.

Defendant claims that No. 3 “injects a false issue into the case and fails to hypothesize all of the essential facts”; that it improperly injects the issue of liability under § 304.015, par. 5, V.A.M.S.

The portions of § 304.015, par. 5, V.A.M.S. pertinent to the inquiry follow:

“Whenever any roadway has been divided into three or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply: * *
“(5) Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and except when a roadway has been divided into traffic lanes, each driver shall give to the other at least one-half of the main traveled portion of the roadway whenever possible.”

Instruction No. 3 did not inject a false issue in the case.

Liability under § 304.015, V.A.M.S. was not a false issue in the sense that it was foreign to the issues pleaded. It was specifically and separately pleaded as one ground of liability, in paragraph 2-f of plaintiff’s amended petition. Defendant did not move to strike paragraph 2-f but joined issue thereon by pleading the gen■eral denial to paragraph 2-f by number and letter.

It was not a false issue in the sense that it contained allegations of fact that were not true. The truth of the fact that the Thunderbird went over, onto and upon the wrong side of the highway was established by all of the evidence, including defendant’s own express admission.

The issue which defendant claims is a false issue thus was pleaded and proved, and we note further that when the evidence of the fact was offered, defendant made no effort to exclude it on the ground that it was a false issue.

There may be merit to the idea that the issue was not genuine, in the sense that it was not necessary for plaintiff to invoke the statute as a basis or predicate of liability, since plaintiff had two perfectly good theories of liability: antecedent negligent failure to maintain a lookout and excessive speed, and it might have been argued that the unnecessary injection of the issue was confusing and misleading. Defendant, however, has not raised this point, indeed has taken the opposite position, that in No. 3 there is no instruction on antecedent negligence. In passing we will say that we have considered and rejected the possibility that the jury was confused or misled by Instruction No. 3.

Defendant’s thesis is that the giving of Instruction No. 3 constituted reversible error because “there is again a total absence of instruction on the essential negligence, defendant’s negligence antecedent to the skid.” On that basis defendant cites and relies upon Kitchen v. Wilson, Mo.Sup., 335 S.W.2d 38, in which it was stated that an instruction under § 304.015, subd. 5, under similar facts, should not have been given because there was no contention that defendant could have done anything to avoid the collision with plaintiff’s automobile after defendant’s vehicle struck the third vehicle. In our judgment the rule of Kitchen v. Wilson has no application for the reason that plaintiff’s instruction under § 304.015, subd. 5, in that case, did not include a requirement of a finding of antecedent negligence in the operation of defendant’s automobile so as to permit it to collide with the third vehicle. It submitted only facts which, if found, constituted a violation of the statute. By way of contrast, Instruction No. 3 properly and fully submitted defendant’s antecedent negligent operation of the Thunderbird so as to permit it to collide with the Microbus, come over onto the wrong side of the highway, and strike plaintiff’s Chevrolet. Under the evidence and under No. 3 a jury reasonably could find that a sudden, hard application of the brakes was made necessary by defendant’s negligent failure to keep a lookout and see the obstruction in his path, and to timely sense the danger, and his negligence in speeding under the circumstances, as a result of which negligence he violated the statute. In other words, the subniission of the failure to pass to the right was based, and dependent upon, a finding of defendant’s antecedent operation of his automobile so as to permit it to come into collision with the Microbus.

While No. 3 emphasizes the statutory duty to pass to the right and submits defendant’s operation of the Thunderbird on the wrong side and defendant’s failure to drive to the right side of the center line we think, considering the instruction as a whole and considering its component parts, that the gist and essence of what No. 3 submits is defendant’s failure to drive to the right based upon and as a result of defendant’s failure to see the stopped and standing Microbus in time to stop or slacken the speed of the Thunderbird which, if done, would have permitted the Thunderbird to pass plaintiff’s Chevrolet without interference and would have given plaintiff the northbound half of the highway. We do not think that the emphasis placed upon the statutory duty prevented the jury from deciding the case upon the basis of the central fact that defendant was guilty of antecedent negligence, because all of the evidence points directly to,the antecedent negligence of defendant as the efficient, producing and proximate cause of the skidding, the sideways movement, and the crossing of the center line.

Nor do we think that defendant should be permitted to claim protection from a submission under § 304.015, par. 5, V.A.M.S., on the ground that he was powerless to avoid a violation of the statute after his automobile went into the skid, where the facts plainly permit, and almost compel, the inference that defendant went into the skid by reason of his own fault, and:, there is a total absence of evidence that the-skid resulted from accident or emergency-conditions for which defendant was not responsible.

Next, defendant objects that No'. 3 fails to hypothesize all of the essential facts, but does not specify what essential facts No. 3 fails to hypothesize, except to refer to “all of the essential facts of the skidding,” and we find no such failure. Defendant argues that No. 3 assumes that defendant was driving and operating his car “sideways” on the wrong side of the road at the time of collision, ignoring all of the essential facts of skidding. All these postulates are preceded by an “if you find and believe from the evidence,” and interspersed throughout the instruction are several “if you so find[s],” and the spinning and sideways movements are twice referred to in the instruction. The instruction is not subject to these criticisms.

Error is assigned in permitting plaintiff’s counsel to cross-examine plaintiff’s witness Mr. Wilkinson on what defendant said in his presence immediately after the collision. The witness had previously signed a written statement reciting that defendant had said “it was my fault; I looked up and I didn’t have time to stop or words to that effect.” On the stand the witness testified defendant said that it was his fault, but did not add the admission of defendant with reference to looking up and not having time to stop. When asked if he heard defendant say anything further the witness did not recall. Plaintiff’s counsel asked if the witness heard defendant say “I looked up, I was on top of the man,” but an objection on the ground that he was using a statement was sustained. Plaintiff’s counsel claimed surprise, asked leave to cross-examine the witness on the basis of his signed statement, handed the statement to the witness and asked him to use it and refresh his memory. Defendant objected on the ground that the plaintiff was impeaching his own witness. The court overruled, and the witness then testified according to the written statement. Defendant, treating this as a question of surprise and cross-examination of a hostile witness, claims error in permitting plaintiff to impeach his own witness without a proper foundation for surprise existing. Plaintiff joins issue on the right to claim surprise and the right to cross-examine a hostile witness on previous “inconsistent” statements, but the parties have misconceived the problem. This is not a question of surprise and cross-examination of a hostile witness, hut is a simple case of- a witness temporarily-forgetting one item of evidence, of having his memory refreshed by reference to his previous written statement, and then testifying in full accord with the contents of the writing. There was no hostility. His testimony was not adverse to or contradictory of the writing. The “cross-examination” consisted of identifying the writing, asking the witness to refresh his memory and, after he had done so, asking the witness to tell what defendant told him about how the accident happened. The witness answered “To the best of my recollection he said Tt was my fault; I looked up and I didn’t have time to stop or words to that effect.’ ” Counsel then asked “But it [the writing] did say he looked up ? ” The witness answered “Yes.” The witness merely supplemented his original testimony by the addition of a fact which slipped his mind, after refreshing his recollection. We find no error in the rulings of the court with respect to the so-called “cross-examination” of plaintiff’s witness.

Finally defendant claims error in allowing plaintiff’s counsel to read to the jury the entire contents of the written statement of plaintiff’s witness Mr. Wilkinson, on the ground that it was hearsay. This point was waived by defendant’s failure to object to the introduction of the statement in evidence. Defendant’s previous objections to its use for impeachment or for refreshing the memory of the witness were not sufficient to raise the point that it was error to admit the entire contents of the writing, which was offered in evidence for the asserted reason that “this statement has been questioned.” Defendant asks us to invoke the plain error rule, Sup.Ct.Rule 79.04, V.A.M.R. 'A consideration of the contents of the written statement does not lead us to the conclusion that the reading of the contents of the statement, if error, affected the substantial rights of the defendant.

The judgment is affirmed.

COIL and WELBORN, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: COIL, Commissioner. PER CURIAM:

text:
    STATE of Missouri ex rel. ST. LOUIS COUNTY, Missouri, Respondent, v. Robert C. KELLY, Constable for the Third Constable District, St. Louis County, Missouri, Appellant.
    No. 50019.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      George E. Murray, Clayton, for appellant.
    Norman C. Parker, St. Louis County Counselor, Joseph B. Moore, Asst. County Counselor, for respondent.
   COIL, Commissioner.

In February 1958 the state at the relation of St. Louis County filed a petition for a writ of mandamus against Robert C. Kelly as the constable for the third constable district of St. Louis County. We shall sometimes herein refer to relator as “county” and to respondent below as “the constable.” The petition for the writ averred, inter alia, that certain county ordinances required the constable to pay into the county treasury money which had come into his possession and was in his bank accounts, and prayed that he be directed “to forthwith deposit all monies which he presently has in his possession and which shall in the future come into his possession, according to and under the terms of” specified county ordinances (present sections 104.390, 303.010, and 303.020). An alternative writ of mandamus was issued, directing the constable to deposit the money in accordance with the prayer of the petition for the writ. The constable filed his return, to which was attached a copy of a letter from the Missouri Attorney General pertaining to the disposition of money in a constable’s possession and a copy of the constable’s bond executed pursuant to the requirements of Section 63.030. Further reference will be made to both those documents. After rela.tor filed a reply to respondent’s return, the •parties filed an “agreed stipulation of facts,” ■subject to the right of either to object to •their relevancy or materiality, and the case \was submitted in January 1962.

'The facts so stipulated, in so far as necessary to a disposition of this case in the view we take of it, are here set forth.

Respondent was duly elected constable of the third magistrate constable district in St. Louis County, took office on January 1, 1947, and served continuously and was serving at the time of the stipulation. The magistrate for the third district had since 1947 required a litigant at the time of filing a case to deposit as security for court costs and constable fees an amount fixed by the magistrate. A part of that sum was transferred by the magistrate to the constable as security for constable fees which might be earned in accordance with the constable fee schedule set forth in Section 63.140. The constable kept a record of earned fees in accordance, we assume, with the schedule set forth in Section 63.140, and paid those •earned fees monthly into the county treas-tiry. The excess or unearned portion, if any, of the so-called cost deposit which had been received by the constable was retained by him and was thereby “a credit in favor of the litigant or his attorney.” Upon request of any such depositor, the amount of such credit would be paid to him. We interpolate as the logical corollary, that in the absence of any such request the amount of such credit would remain indefinitely in the constable’s bank account in which he Rad deposited funds received by him as ■constable as well as his own private funds.

The stipulation included these sentences: '“That the funds referred to in the pleadings and now in controversy as money in respondent Constable’s control, has varied in .amounts from day to day and from time to time as deposits have been made and payments disbursed from said funds in accordance with the practice of the respondent. That said balance, if any, would be adjusted as the date of filing of judgment herein, if a judgment would be rendered in favor of the relator and against the respondent; provided further that if judgment should be rendered in favor of the relator and against the respondent the court’s order shall provide for and direct the respondent to make and present a complete and proper accounting to relator and to make payment to relator in accordance therewith and it is understood and agreed that respondent will make and present such accounting to relator and make such payment.”

It was further stipulated that the constable had executed and deposited with the county his official bond, a true copy of which was, as aforenoted, attached to respondent’s return.

The relator objected to certain facts contained in the stipulation which pertained to money in the hands of the constable other than the “earned fees” heretofore described on the ground that they were “not at issue in this case.”

The trial court found the ordinances, hereinafter referred to, to be valid and constitutional and in the exercise of what it termed “extraordinary injunctive relief” and in the exercise of its power as a court of equity, ordered the constable to “deposit all funds now in his possession over to the Treasurer of St. Louis County, together with any interest accumulated thereon, if any, * * * ” and to provide a complete and proper accounting of such funds in his possession, reserving to the court the right to order a complete audit of the constable’s books and accounts.

The constables in St. Louis County, including the respondent, are paid a monthly salary and transportation allowance and there is no provision for them to receive any additional amounts. There was and, so far as we are aware, there is no provision in the law requiring or authorizing a “cost deposit to secure the payment of constable fees.”

The ordinance requirements relied upon by relator are portions of the following sections of the St. Louis County Ordinances then in effect: Sections 104.390, 303.010, and 303.020. Relator says that the pertinent provisions of those three sections are:

“Sec. 104.390 * * * All fees, costs and any other monies received or collected by any elective official of St. Louis County shall be paid by him into the County Treasury at least once each month * *
“Sec. 303.010 * * * Any officer, employee, or agent of St. Louis County who shall receive any moneys belonging to the County, or any moneys not belonging to the County, which may be obtained by him by virtue of, or under color of such office or employment, which are to be held, paid out, or transmitted by the County or any officer, employee, or agent thereof, shall promptly deposit all such moneys in the County Treasury; * * *. The County Treasurer shall deliver duplicate receipts for all such moneys received, one to the officer, employee, or agent making the deposit, and the other to the County Auditor. Each such deposit shall be entered on the hooks of the County Auditor, showing the source, the amount and the fund or account to which credited. Any such monies not belonging to the County shall be placed in a special fund or account, distinct and apart from any moneys belonging to the County
“Sec. 303.020 * * * The County Treasurer shall pay out such moneys not belonging to the County held in any special fund or account for disbursement or transmittal by the County or any officer, employee, or agent thereof, on warrants approved and signed by the County Auditor and the County Supervisor and not otherwise. The County Auditor and the County Supervisor shall'approve the disbursement: of such moneys not belonging to the County only as provided by the laws, ordinances*, rules, regulations or agreements pertaining to said moneys * *

It has been made clear by the portion of the stipulation of facts heretofore quoted, by the objection of relator to the materiality and relevancy of certain of the stipulated facts, and by the position of relator in this court that the money which the county wants paid into its treasury in this case is only the amount of so-called “unearned fees” which is or should be in the hands of the constable. The stipulation of facts, however, included the statements that the constable, in addition to the advance-deposit for costs heretofore described, received in the course of his official duties-sums of money as a result of executions, levies, garnishments, and other processes of! the court which in due course are paid by the respondent constable to respective - parties litigant, and that he received also-sums of money advanced by litigants to< cover constable expenses incurred on behalf of litigants, such as trucking charges> moving expenses, storage expenses, etc.

Appellant points out that the prayer of the petition and the alternative writ sought and issued directed the constable “to forthwith deposit all monies which he presently-has in his possession and which shall in-the future come into his possession, according to and under the terms of” county ordinance sections 104.390 and 303.010. (Our italics.) It is also true that county ordinance section 104.390 refers to “fees, costs- and any other monies received or collected', by any elective official” and that section-303.010 refers to “any moneys belonging to-the County, or any moneys not belonging to • the County” which are obtained by any county officer by virtue or color of his office- or employment. Appellant argues as a result of the facts noted above that while the-county may wish on this appeal to talk about and deal with only so-called “excess cost deposits or unearned constable fees,” the petition for the writ of mandamus, the ord'i-nances set forth therein, the alternative writ, and the trial court’s final judgment referred to and gave directions concerning “all monies” or (in the case of the judgment) “all funds,” and that none of those documents even purported to refer only to so-called unearned constable fees; thus, says appellant, the alternative writ and the judgment include and cover money in the hands of or to come into the hands of the constable which clearly, in accordance with the law, should not be, in any event, deposited in the county treasury and money which relator tacitly at least, concedes has been and continues to be properly disposed of by the constable by paying such other money to persons or entities other than the county.

We agree with appellant that “the extraordinary writ of mandamus ‘is a stern, harsh writ, and, when issued is an unreasoning, inflexible, peremptory command to do a particular thing therein specified without condition, limitation, or terms of any kind. * * * ’ The final or peremptory writ must be based upon and strictly follow the alternative writ, and (it is usually said) the alternative writ must follow and conform to the petition.16

“It is frequently stated and held by the Missouri courts that ‘he who seeks mandamus “must specify just what he wants, nothing more or less.” * * * Thus, unless we can grant the relief sought we can grant no relief.’17 This salutary rule we approve in principle and we expect to follow it as a general course in dealing with these writs. One who chooses to invoke the aid of this extraordinary writ should first know exactly what relief he is entitled to and ask for it alone, not leave it to the superintending court to cull out the whole bushel in order to search for one good apple. But this rule, like many others, is subject to indulgence and discretion. In order to avoid injustice the courts have sometimes gone around to enter at the back door by allowing the petition to be amended and then amending the alternative writ.18” State ex rel. Standefer v. England, Mo. App., 328 S.W.2d 732, 737. (Footnotes indicated by the numbers in the above quotation contain citations to authorities relevant to the propositions stated.)

We are of the i view that inasmuch as the public has an interest in seeing to it that duly-elected public officials shall not unjustly enrich themselves by retaining unearned and unauthorized money which, in truth and in fact, belongs to the depositors thereof, we should, in order to avoid injustice and in the exercise of our discretion, consider that the petition and the alternative writ have been so amended as to make this action, in its present posture, one for a peremptory writ of mandamus commanding the constable to deposit in the county treasury any sum representing so-called “unearned fees” which is or should be in his possession as a result of the “cost deposits” made as hereinbefore described. “A public officer owes an undivided duty to the public whom he serves, and is not permitted to place himself in a position which will subj ect him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interests of the public.” 43 Am.Jur., Public Officers, § 266, p. 81.

The recent case of St. Louis County v. Litzinger, Mo., 372 S.W.2d 880, decided by Division Two of this court, held that a St. Louis County constable had the ministerial duty, by reason of the provisions of the ordinances heretofore mentioned, to deposit in the county treasury all funds which came into his hands “in connection with constable fees.” That holding applied to the present fact situation clearly means that it is the ministerial duty of the constable to pay into the county treasury money deposited with him as security for constable fees and in excess of earned constable fees, and, consequently, he may be properly directed to do so by a peremptory writ of mandamus.

Appellant seeks to distinguish the Lit-zinger case on the ground that the action 'there, as finally submitted, was a “mandatory injunction action to compel a former office holder to relinquish funds retained by him after his term of office had ended,” while the constable in the present case is still serving and “is seeking to comply with the Constitution and Laws of the State of Missouri and the Magistrate Court under whose direction he acts.” While it is true that Litzinger was a former officer and appellant was a presently serving officer, that factual difference does not militate against the fact that the holding in the Litzinger case is controlling here in so far as that case held that a St. Louis County Constable had a ministerial duty to pay over to the county treasury so-called “unearned constable fees.”

Appellant argues further that the ordinance sections in question are invalid and unconstitutional. But as held in the Litzinger case, supra, where an officer has a ministerial duty to perform a certain act he may not question the constitutionality of the ordinance or law requiring him to perform that act. 372 S.W.2d 881 [1]. Appellant contends, however, that he comes within two well recognized exceptions to that general rule: first, where one has a personal or property interest greater than the interest of any other citizen in the constitutionality of the ordinance or law and, secondly, where the officer has acted upon or under the advice of the state’s attorney general to the effect that the law in question is unconstitutional.

In support of his contention that 'he comes within the first exception, the constable says that he has a “personal and property interest, in that he is personally liable on his statutory bond for disbursement of monies received by him to all ■proper parties.” The condition of the 'bond executed by respondent was in the language of the statute requiring the bond, Section 63.030, and provided that respondent would “faithfully execute all process to him directed and deliver and pay to the proper parties all moneys received by him by virtue of his office, and pay into the county treasurer monthly all fees received by him by virtue of his office, and in every respect discharge all of the duties of a constable according to law, * * *.” As heretofore noted, we have confined the issue and shall direct that the command of the peremptory writ shall be confined to the deposit in the county treasury of money which is or should be in the possession of the constable which represents the excess of sums advanced by litigants for constable fees over the amount of earned constable fees. One of the ordinances which, according to the Litzinger case, supra, required the constable to perform the ministerial duty of paying into the county treasury so-called “unearned fees” (Section 104.390) required in part that “all fees * * * and any other monies received or collected” by an elected official should be paid into the county treasury; and the other section (303.010) required that any county officer who received “any moneys belonging to the County, or any moneys not belonging to the County, which may be obtained by him by virtue of, or under color of such office or employment” should deposit such moneys in the county treasury. Thus, it appears that under both the county ordinance sections (applicable on the authority of the Litzinger case) money received by a county constable “in connection with constable fees” is received either by virtue of or by color of his office. Thus, it would appear that the money with which we are presently concerned, while not belonging to the county, is received by the constable by virtue of his office, in which event he would not be liable on his bond because he would in accordance with the command of the writ pay it into the county treasury in strict accord with the condition of his bond. If it be argued that the money in question was received by color of Ms office, and was thereby not received by virtue of his office (a matter we do not decide), still the constable would not be liable on his bond because it purports to cover only money and fees received by him “by virtue of his office.” It follows that the requirement of a peremptory writ, limited to money represented by “unearned fees” as aforestated, would not make respondent liable on his statutory bond.

In support of his contention that he may raise the validity and constitutionality of the county ordinance because he acted under the advice of the attorney general that the ordinance was unconstitutional and that “his failure to follow the course of action sought by the Relator is based upon such advice,” respondent points to the letter, dated October 17, 1957, from the Missouri Attorney General to the then Prosecuting Attorney of St. Louis County.

Among the questions asked in the letter were whether, under the provisions of Section 50.480, “fees” included money deposited with the constable as security for the payment of court costs but not yet earned and if the unearned portion of the costs should be turned over to the county treasurer, and could St. Louis County operating under a charter form of government, require such by ordinance and, if not, what disposition should be made of unearned fees. The opinion, which, as stated, dealt with a construction of the 'provisions of Section 50.480, tentatively answered some of the questions. Section 50.480 provided: “It shall be the duty of each sheriff, marshal, coroner, clerk of the courts of record, and other officers, on the first day of January and the first day of July in each year, to pay over all fees in their hands belonging to others to the treasurer of the county, with the name and amount belonging to each person, date when collected and in what case, taking from the treasurer duplicate receipts therefor, one of which the officer shall file with the clerk of the county court, who shall immediately charge the treasurer with the same.”

It is true that in one portion of the tentative opinion, the attorney general stated that any unearned portion of any fund deposited as security of costs should not be paid into the county treasury under the provisions of Section 50.480, ■ RSMo 1949, V.A.M.S., and indicated that such unearned fees belonged to the depositor and should be returned to him. The attorney general then stated that he was at a loss to understand the discussion concerning earned and unearned portions of apparently cash deposits for security for costs because the statutory provisions relating thereto provided for an obligation to secure costs and not for cash deposits, and that, consequently, sufficient facts did not appear in the prosecuting attorney’s inquiry to justify the attorney general in assuming that security for costs required by magistrate courts took the form of money deposits. And, said the attorney general further, the prosecuting attorney’s inquiry needed clarification also with respect to how it occurred that any portion of any security for costs, whether a money deposit or otherwise, was paid to the constable rather than to the clerk of the magistrate court. The attorney general concluded his letter with this paragraph: “When you have clarified the fact situations referred to in this letter of instruction, this office will again direct attention to giving a formal opinion on the questions posed in your inquiry.”

It seems apparent that the attorney general did not advise that the ordinance itnder which relator seeks to have the constable directed to perform a ministerial duty was, unconstitutional; indeed, he did not deal with any ordinance. And, furthermore, the general’s opinion as a whole clearly shows that the conclusions reached were tentative and that any “formal opinion” pertaining to the questions posed would have to await a clarification of facts.

It follows that respondent does not come within either of the asserted exceptions to the general rule and therefore he is precluded from questioning the validity or constitutionality of the ordinance in question. St. Louis County v. Litzinger, supra, 372 S.W.2d 881 [1].

The county seeks to uphold and urges that we affirm the trial court’s conclusion of law that the sections of the St. Louis County ordinances here involved are valid and constitutional. It should be plain from what we have said heretofore, we do not reach the question whether the ordinances are constitutional and valid. City of St. Joseph v. Roller, Mo., 363 S.W.2d 609, 612 [6], Likewise, we do not reach questions suggested by appellant involving the disposition of money which comes into the hands of a St. Louis County constable other than the excess money remaining in his hands by reason of the fact that so-called cost deposits exceeded the amount of earned constable fees.

We have heretofore quoted a portion of the stipulation entered into by the parties by which it was agreed that in the event relator obtained a judgment (a peremptory writ of mandamus), the balance due from respondent at the time of any such judgment would be determined as a result of a proper and complete accounting by respondent to relator. We therefore approve the following portion of the trial court’s judgment (as modified by the bracketed insert) which “orders the respondent to provide a complete and proper accounting to relator of such funds in his possession [or which should be in his possession] reserving the right in the Court to order a complete audit ■of respondent’s books and accounts, in the event the Court deems same to be necessary,” it being understood that the words “such funds” include only the amounts of money, together with interest thereon, which are or should be in the constable’s possession as a result of the fact that the amounts of some so-called deposits for ■costs made by litigants and their attorneys exceeded the earned constable fees charged .against such cost deposits.

The case is remanded with directions to •fihe trial court to have completed, under its ■supervision and control, the accounting or .audit or both as provided above, within the time fixed by the court, and upon the completion of such and the determination thereby of the amount of “such funds” due, the ■court will issue to respondent constable its peremptory writ of mandamus commanding that respondent forthwith deposit in the county treasury the amount of “such funds” so found to be due.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.

      . All section citations refer to sections in RSMo 1959 and V.A.M.S. unless otherwise indicated.


author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. George Noble PURDIN, Appellant.
    No. 50231.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Charles J. Hulse, Kansas City, for appellant
    Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson, City, for respondent.
   DALTON, Judge.

Defendant was charged and convicted of the offense of robbery in the first degree under the Habitual Criminal Act and the court assessed defendant’s punishment at twelve years’ imprisonment in the state penitentiary. See §§ 560.120, 560.135, 556.280 and 556.290 RSMo 1959, V.A.M.S. The defendant on his own behalf and his court-appointed counsel for him filed timely motions for a new trial, which motions were considered by the trial court and overruled and defendant was duly sentenced in accordance with the verdict of the jury, the finding of the court as to the prior conviction of a felony, imprisonment and discharge, as charged in the information, and the punishment assessed by the trial judge under § 556.280 RSMo 1959, V.A.M.S. Defendant has appealed from the judgment and sentence entered against him. A free transcript on appeal has been provided and defendant has again been represented by his court-appointed counsel and a brief has been filed on his behalf in this Court. The assignments of error presented relate to the admission of evidence, the exclusion of evidence and the alleged improper closing argument by counsel for the State.

The cause was submitted to the jury by Instruction No. 2, authorizing the jury to return a verdict of guilty only upon the finding of the following facts, to wit: “ * * * that if you believe and find from the evidence in this case, beyond a reasonable doubt, that at the County of Jackson and State of Missouri, on the 27th day of November, 1962, the defendant herein, George Noble Purdin, did then and there with force and violence in and upon one Kenneth R. Anderson, unlawfully and felo-niously make an assault and took and carried away any money or property from his person or in his presence and against his will, by force and violence to his person, or by putting him in fear of some immediate injury to his person, with felonious intent to convert the same to his own use without any honest claim to said money or property on the part of the defendant, and with intent to permanently deprive the said Kenneth R. Anderson of his ownership and without the consent of the said Kenneth R. Anderson, * *

The State’s evidence tended to show that, on the evening of November 27, 1962, Kenneth R. Anderson and some five other persons, including Robert R. Street, had attended a meeting at Grain Valley and about 11 o’clock that evening they returned to Mr. Anderson’s Queen City Feed Store, at 23rd Street and Kiger in the City of Independence, Jackson County, Missouri, where they had parked their cars and gone to the meeting with Mr. Street in Street’s car, a “blue over white” 1958 Chevrolet Station Wagon. Mr. Anderson had left his 1955 Chevrolet Station Wagon parked directly in front of his feed store. When they returned Mr. Street drove up directly behind Anderson’s car and left his car lights on, and a Mr. Clark entered his “pickup” truck and turned its headlights on. There were also other lights burning, including a neon parking-lot light on a post and some night lights at the front of Anderson’s store. Mr. Anderson got out of Street’s car and walked forward to his 1955 Chevrolet Station Wagon and opened the right-hand front door. As he did so the courtesy light inside the car came on and Mr. Anderson saw a man, later identified as defendant, lying on the seat. This man raised up with a large flashlight in one hand and a gun in the other and ordered Anderson to get in. Anderson did not do so, but instead ran around behind the car and hollered to the others not to leave, because there was a man in his car with a gun. The man with the gun, later identified as defendant, followed Anderson and at gunpoint ordered Anderson to get in the Street station wagon and drive.

Anderson testified: “I just got in and drove. He got in the back seat and I got in the front seat and he told me to drive normal, not to attract no attention, so I just turned and he told me to turn north on Kiger, Kiger Road, which I did, and as we were going down the hill, why of course, one of the boys followed in his pick-up and then this fellow put the gun at the back of my head and I told him, Why don’t you take this car and go? ’ You know, Where-ever you want to.’ He said, Well, if you don’t get too close I will.’ So we turned on the first street, which happened to be Walnut Street in Independence, and over the first hill, why, we shut the lights out and he let me out. He told me he wanted my money and he let me go.” When the car was stopped on Walnut Street, both Anderson and the defendant got out of the station wagon, and defendant held the gun on Anderson and took his money, eight dollars. When Anderson and defendant got out of the car the courtesy light came on and Anderson more closely observed the man with the gun.

Before Anderson and defendant left the feed store with Street’s station wagon, Mr. Street sought to intervene, but defendant held the gun on him and ordered him back. The defendant came very close to both Anderson and Street and they viewed him from a distance of only a few feet. Anderson had viewed defendant on three occasions: (1) when Anderson opened his right-hand station wagon door; (2) when the gun was held on him in the light of two automobile headlights and the other lights mentioned, and defendant had ordered him to get in and drive Street’s station wagon; and (3) when both stood beside the station wagon on Walnut Street and defendant held the gun on him and took his eight dollars before releasing him.

The testimony of witness Robert R. Street tended to show that he heard Anderson’s statement about the man with the gun; and that he saw the man holding the gun on Anderson. Street made a lunge toward him, to grab him, but defendant whirled around and threw the gun in his face and ordered him to get back if he didn’t want to get hurt, so Street stepped back. He saw defendant force Mr. Anderson to get in the front seat of Street’s car, and defendant get in right behind him. Street then opened the door to the store and notified the police department, and was talking to the police before Mr. Anderson got the car backed out. He saw his station wagon turn east and then go north down Kiger Road, while he was talking to the police department and giving them the description of the car, and reporting what had happened.

Mr. Street testified that the area about the feed store was all lit up with night lights and other lights. He said the big fluorescent light sign lighted the driveway and parking area and that the car lights of his own car and Mr. Clark’s pickup truck were on when defendant emerged from Anderson’s car. Both Anderson and Street positively identified defendant as the man with the gun and as the man on trial in the case. Both thought the gun was a .45 Colt.

A few minutes after defendant left the Street’s car, with Anderson at the wheel, Street heard over the radio that his station wagon had been wrecked at the intersection of Crane and Pacific Streets. Street got in another car and went there at once. When he arrived he saw the wreck of his own car and he also saw the defendant, the same man who had held the gun on him and on Anderson, only a few minutes before. He saw the same man in the courtroom and pointed out the defendant on trial. Both Street and Anderson at the trial identified the cap pistol used by the defendant in the robbery. At that time both had thought it was a real gun. When Street arrived at the scene of the wreck within ten minutes after it happened, he saw the defendant lying on the ground in a driveway.

The evidence further showed that Merle L. Dove, a police officer of the City of Independence, was in his patrol car when he received a report of the holdup and that a 1958 Chevrolet Station Wagon had been taken. He drove at once to Walnut and Pearl Streets, which he assumed might be.an escape route from the location from which the holdup was reported. He parked his car, turned off the lights and was observing traffic when he saw a station wagon of the reported description enter Walnut Street two blocks to the east and come west. He reported these facts to headquarters, turned on his car lights and followed the station wagon as it turned left and went south on Hocker Street. When the car again turned left on Pacific, it sped east at high speed, but when it attempted to turn left on Crane Avenue, it failed to make the corner and went into a ditch, wrecked the car and the occupant was thrown out on the right-hand side of the car. No one else was in the car. Officer Dove was following only 200 feet behind when the wreck happened. He parked his car and took his riot gun and approached the person thrown from the car. As he did so, the party jumped up and ran east 40 or 50 feet and fell into, a dark area by a tree. At that time another patrol car had arrived and officer Dove approached the spot where the man went down and he located him lying flat on his back, but the officer could not determine how defendant lay until he stepped on defendant’s hand. He then held the riot gun on him, placed him under arrest and handcuffed him. He said that he arrested defendant within four minutes after receiving the report.

When he asked the man for the gun used in the holdup the man advised that it was on the front floorboard of the wrecked car. Dove had another officer retrieve it. As stated, the defendant was identified by Street and Anderson.

At the time of his arrest defendant was fully conscio.us and contended that he had been injured in the wreck. An ambulance was called and he was taken to a hospital for examination and treatment.

As to how the officer came to step on the mans’ hand, he stated, “I could tell it was a form there but I couldn’t tell which was an extremity.”

Appellant argues the insufficiency of this evidence on the issue of identification as “the crucial issue in this case.” In view of the State’s evidence, as hereinbefore set out, there is and can be no insufficiency on that issue. The issue was for the jury and the jury has resolved that issue against the defendant.

The record further shows that on December 12, 1962, when defendant appeared for arraignment the following proceedings were had, to wit: “ * * * the court informed said defendant of the nature of the charge against him and the punishment therefor, and of his right to counsel, and explained wherein the exercise of the said right might be of benefit to said defendant, and after interrogating said defendant, the court finds that defendant is mentally able and sufficiently informed to decide his need for counsel, and the court offered to appoint counsel for said defendant to conduct his defense, but defendant waived such right to counsel, thereupon said defendant, being duly arraigned before the court for plea, enters a plea of not guilty to the charge of Robbery, First Degree; * *

Thereafter, on December 24, 1962, on his own behalf the defendant filed a petition for a sanity hearing wherein he alleged “that on the night of November 27, 1962, that he was not sane when he committed two (2) crimes in the County of Jackson, Queen City [sic] Missouri, one (1) First Degree Robbery and (2) Second, Auto Thief, [sic] Subject claims that he was not in his right mind due to circumstances in the home of Mrs. Robert Yost, 9421 Winner Road, Independence, Missouri, * * * and that he did temporarily lose control of his mind and committed the above-mentioned crimes against the State of Missouri, *

Thereafter and apparently on his own motion the court recognized defendant’s need of counsel and appointed C. J. Hulse to represent him. Counsel then filed a motion to suppress an alleged involuntary written statement-previously given by defendant to the police officers. The motion was sustained. ■ Thereafter, in the course of. the trial, on motion of defendant’s'« cdunsel an extended oral confession allegedly given by defendant to a police officer was excluded as having been made prior to the defendant having been advised of his constitutional rights and on various other grounds.

In the brief filed in this Court, counsel for appellant has not specifically designated the evidence which he contends was erroneously excluded by the trial court. Appellant states that “the trial Court erred in not allowing facts to be presented to the jury regarding the omission and failure of the state’s witnesses to identify a criminal accused who was in the Court room preceding the trial of the present appellant as the wrong defendant.” The nearest approach to a specification of error under this head is the further statement that: “The refusal of the trial court to allow cross examination of the prosecution witness’ on their failure to distinguish in an earlier Court proceeding concerning the same charge of robbery was an improper infringement on the defendant’s right to have these witnesses examined during his trial.” These assignments are accompanied by a number of correct abstract statements of law about which there can be no dispute.

In the course of this trial (outside the hearing of the jury) it appeared from statements by counsel, the court and others that this case against this defendant had been set for trial on the preceding day and that the trial had started. After the lapse of 4 or 5 hours spent in qualifying a jury, etc., the court was advised that the defendant was not present; that the individual seated behind the court-appointed counsel for defendant was not the defendant, but a person by the name of Arnold; and that, while the mentioned abortive proceedings were in progress, the State’s witnesses, subpoenaed and then excluded from the courtroom were waiting in the hall and had frequently appeared at a glass door and looked in the courtroom while waiting to be called to testify.

It also appeared from the testimony of witness Anderson on cross-examination, that he had appeared at 9 a. m. on the day before to testify in the case against defendant Purdin and that he had looked through the “glass door windows” into the courtroom and from 30 feet away he saw counsel for the State and counsel who had been appointed to represent this defendant seated at the counsel table; and that he had observed that the person seated behind counsel for defendant was not the defendant on trial but was another person. The witness, although noting this fact, did not enter the courtroom nor make any inquiries. When the court ruled that this evidence as to what took place on the day before did not have anything to do with the issues on trial, 'the defendant undertook to intervene and address the court, contending repeatedly : “This trial is a mockery.” In any event, as to witness Anderson, there was no exclusion of any competent evidence on the issue of identification as contended by appellant.

The same matter arose again in the cross-examination of witness Street who on the day before had stood out in the hall awaiting to be called in the Purdin case, which he assumed was being tried. When these facts were again developed, the State objected and the court sustained the objection. Counsel for the defendant then made an offer of proof as follows: “I would like to show he stood out there most of the morning, he knew that he was going to testify in the George Purdin trial and yet another man was in court here and he did not say anything to anybody. I feel that he failed to identify the person then.” The court then overruled the defendant’s offer of proof. The court did not err in excluding the mentioned evidence. It did not tend to impeach the testimony of the witness identifying the defendant as the robber.

Out of the presence of the jury the court stated: “I am addressing both of you, there’s no question that yesterday morning this case was called for trial, one panel was examined. There was a man sitting behind Mr. Hulse. I assumed it was the defendant. Was I ever apprised that he was not the defendant?” Counsel for the State and for defendant then both insisted that they did not know they were trying the wrong person on the day before. Defendant then spoke up and said that his court-appointed counsel had seen him perhaps four times, but that he (defendant) had now cut off his beard. When defendant continued to make various statements, the court told him to stop, and advised defendant that he could take the witness stand later. Defendant replied: “I can’t afford to take the witness stand. I have got a record, that automatically brings it up. Your Honor, I am trying to break my identification.”

When officer Dove testified the defendant’s counsel asked him about being in the hall and looking into the courtroom on the day before, while waiting to testify in the Purdin c.ase, and counsel inquired whether the defendant on trial the day before was the person then seated behind counsel for defendant, the witness stated that he had no way of knowing because he never at any time saw the face of the man who was in the courtroom. He further answered: “When you came up to me yesterday and identified yourself as being the defense attorney, first thing that you told me was that you had found out that the man was not the defendant. At that time I told you the man had a lot more hair than he had when I arrested him. * * * I was talking about the man that you had identified to me, because I said, ‘That guy in there’ (indicating) at that time, and I said, ‘He appeared to have more hair than he did at the time that I arrested him.’ ” The witness then positively identified the defendant on trial as the man he had seen thrown from the station wagon at the time of the mentioned wreck and who had gotten up and run 40 or 50 feet.

The record wholly fails to show that any competent, material evidence on the issue of identity of defendant was erroneously excluded or that the court unduly limited the cross-examination of any of the State’s witnesses who had looked through the glass door on the day before and had assumed that defendant’s trial was in progress.

The witnesses subpoenaed by the State for the trial of defendant on the day before had no duty to determine who was seated behind attorney Charles J. Hulse, whether friend, defendant or another attorney, or to interfere. Assuming that they thought or assumed that the man behind attorney Hulse was defendant Purdin or someone else, they did not undertake to identify him as defendant Purdin. The record fails to show that the cross-examination of the State’s witnesses was unduly limited or that the court erred in denying the offer of proof, as made, to impeach the testimony of the State’s witnesses on the issue of identification of defendant.

Appellant further contends that: “The court erred in allowing the use of documents not properly certified as evidence against the defendant to establish that he had been convicted of prior crimes.” It is contended that the copy of the records of the Federal Penitentiary at Leavenworth, Kansas, lacked the notary seal required in such certification and objection was duly entered on the lack of certification requirement due to the absence of any seal on the records introduced and allowed. No seal appears on the exhibit.

The document in question purported to be a certified copy of the records of the U. S. Penitentiary at Leavenworth, Kansas, and to show a judgment against defendant under which he was incarcerated there, including commitment papers, finger prints, photographs, sentence and other data and the date of his release. The judgment showed that he had entered a plea of guilty in the U. S. District Court for the Western District of Texas, El Paso Division, to a charge of interstate transportation of a stolen Buick automobile from Ohio to El Paso, and that he had received a three-year sentence.

The instrument purported to be a certified copy of the records of said penitentiary signed by the warden and their correctness sworn to on March 4, 1963, before an Administrative Assistant “C. & P. U. S. Penitentiary, Leavenworth, Kansas,” and the instrument purported to show the authority of the administrative assistant to administer oaths under 18 U.S.C. § 4004. The document was admitted over objection and appellant complains thereof on this appeal, as stated. We think it unnecessary to determine the issue so presented in view of other matters shown by this transcript. We have hereto mentioned the fact, supra, that defendant had volunteered a statement to the court as to his record, and why he could not testify.

The transcript on appeal further shows that after the jury returned its verdict of guilty the following proceedings were had before the trial judge:

“THE COURT: Now, this man, stand up here. You have one previous conviction for a felony in El Paso, Texas ?
“MR. PURDIN: That is right.
“THE COURT: How old are you?
“MR. PURDIN: Thirty-two.
“THE COURT: What was his sentence there?
“MR. PURDIN: Dyer Act.
“THE COURT: Dyer Act; what did you do?
“MR. PURDIN: I did twenty-seven months.
“THE COURT: Well, we have no facilities, the State is not in here yet with their Parole Officer for investigation. What do you do for a living when you work?
“MR. PURDIN: Radio and television technician, tailor, and sewing machine work.
“THE COURT: Well, there isn’t any question in my mind but what you are guilty of this charge and we have got to stop these hold-ups.”

The court thereafter assessed defendant’s punishment at twelve years in the state penitentiary.

While apparently no effort was made to see that the documents purporting to show the records of the U. S. Penitentiary at Leavenworth, Kansas, were certified in accordance with 28 U.S.C.A. §§ 1738 and 1739, nevertheless, in view of the admissions of defendant we think the proof sufficient on the issue of a prior conviction of a felony. State v. Baugh, Mo.Sup., 323 S.W.2d 685, 690 [6, 7]; State v. Reagan, Mo.Sup., 328 S.W.2d 26, 30 [9-11].

In this situation, in view of the admissions we find it unnecessary to rule the admissibility of the mentioned exhibit.

. The closing assignment of error in appellant’s brief complains of a number of matters. The assignment is as follows: “The remarks made by the prosecutor regarding not having sympathy for robbers and vandals, about defense counsel apparently desiring that when a group is held up that all of them should he robbed, assumed that the defendant was guilty, were inflammatory, and highly prejudicial to the just outcome of the case.”

While the specific part of the record relied upon is not definitely pointed out, this claim could only relate to the following proceeding as shown by the-record: “Now I just can’t have any sympathy for a man that goes out jumping on good citizens of this community, taking their property away from them, converting it to his own use, destroying other people’s property. What kind of an excuse — you have heard only from Mr. Hulse who has told you— * * * that the State’s case is weak, because we didn’t bring in more witnesses. If we had brought in more witnesses every one of them would have said, ‘That is the guy.’

“MR. HULSE (interrupting): I object to that, it is a conclusion as to what they' might have testified.
“THE COURT: The objection is sustained. Disregard the statement.
“MR. RODARTE: You have heard positive identification by the state’s witnesses, and the only argument that you have heard from Mr. Hulse is that — well, if he really intended to rob the man, why didn’t he rob all six of them? I can’t see anything in that argument.”

It will be noted that counsel obtained all of the relief requested and more. No reversible error appears.

While not required to do so, we shall refer to some other matters. In defendant’s pro se motion for a new trial he complained of many matters that are not supported by the record and since these complaints do not prove themselves there is nothing before the court for review. Defendant also repeatedly complained in most general terms that he did not have a fair trial, but the record does not support his complaints in this respect. He further insists that “he did not have an adequate defense attorney to handle this case”; and that his attorney failed to call him as a witness in his own behalf. This last complaint is made, although defendant had previously stated to the court that he could not testify without disclosing to the jury his prior conviction.

In connection with his complaints against his attorney in not handling his defense in a more satisfactory manner, it should be pointed out that the attorney was not responsible for the facts shown by this record, nor for the testimony of the State’s, witnesses, nor was there any duty on the attorney to fabricate a defense, and the attorney could properly exercise his own judgment as to the proper cross-examination of the witnesses. Much of the motion is devoted to mere argument and to a review of the record and many things outside the record, all-from defendant’s own viewpoint. He also reviews minor matters of conflict between the testimony of the several State’s witnesses and states his personal ideas on ■certain minor matters concerned with the impeachment of witnesses. He also complains of a matter not connected with the trial, to wit, that he was denied proper medical care and treatment while confined in the Jackson County Jail, and he further says that he was not permitted to show the extent of the personal injuries sustained by him at the time of the wreck when he was seeking to escape arrest. It was pointed out in the trial that the extent of his injuries did not tend to prove or disprove any issue in the case. Appellant has pointed to no material or prejudicial errors appearing in the course of the trial.

We have also examined other matters required to be reviewed under Supreme Court Rule 28.02, V.A.M.R., and find no reversible error. The judgment is affirmed.

All concur.