text:
    STATE of Missouri, Respondent, v. William Joseph WILEY, Appellant.
    No. 52088.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Stanley D. Rostov, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   HIGGINS, Commissioner.

Appellant was convicted by a jury of felonious stealing. The court assessed his punishment at two-years’ imprisonment in the penitentiary and sentenced him accordingly.

After charging appellant with felonious stealing from Macy’s Clay County store, the sufficiency of which charge is not challenged, the amended information proceeds:

“It is further charged that the said defendant, WILLIAM JOSEPH WILEY, on or about June 4, 1951, was convicted of grand larceny in the Circuit Court of Benton County, Missouri, and sentenced to two years in the Missouri Department of Corrections :
“On January 14, 1960, defendant was convicted of robbery in the first degree and sentenced to five years in the Missouri Penitentiary * *

Appellant contends that the amended information was “insufficient to allege the second offender act, in that it did not allege that the defendant had previously been imprisoned in compliance with the prior conviction, and the issue of punishment was erroneously not submitted to the jury *

The second offense statute, Section 556.-280, V.A.M.S., provides:

“If any person convicted of any offense punishable by imprisonment in the penitentiary * * * shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows:
“(1) * * * shall receive such punishment * * * as the trial judge determines after the person has been convicted.”

This section is “highly penal and * * * must be strictly construed,” and both the prior conviction and subsequent-probation, parole, fine or imprisonment therefor must be pleaded and proved. State v. Hacker, Mo., 291 S.W.2d 155, 157 [1]. It is apparent that this amended information fails to allege the statutory requirement of being “subsequently placed on probation, paroled, fined or imprisoned therefor,” in connection with either of the purported prior convictions and, for that reason, is not sufficient to invoke the statute here. State v. Watson, Mo., 383 S.W.2d 753, 756 [2], Prior to 1959 this part of the statute read, “shall be discharged, either upon pardon or upon compliance with the sentence,” and an information which failed to contain such an allegation was fatally defective. State v. Watson, supra; State v. Franck, Mo., 260 S.W.2d 52.

The court made no finding (State v. Caffey, Mo., 404 S.W.2d 171, 176 [3]) of the applicability of Section 556.280, but apparently assumed that it did apply and did not submit the issue of punishment to the jury, the verdict being limited to a finding of “guilty of felonious stealing.” Section 560.161, V.A.M.S., provides punishment for felonious stealing at “imprisonment in the penitentiary for not more than ten years nor less than two years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment.” It is only when the second offense statute is applicable that the court alone fixes the punishment and, when not applicable, “then the jury shall determine guilt and punishment as in other cases.” Section 556.280(2), V.A.M.S. Appellant was prejudiced because the jury might have imposed a lesser punishment than that fixed by the court. State v. Young, Mo., 366 S.W.2d 386, 390 [8]; State v. Kiddoo, Mo., 354 S.W.2d 883, 886 [5].

Respondent, in an attempt to avoid a new trial, argues that the proof of prior conviction, sentence and imprisonment prior to the jury being sworn “were in effect an amendment to the information under * * * Sections 545.290 and 545.300,” V.A. M.S., and Criminal Rule 24.02, V.A.M.R. See State v. Williams, Mo., 382 S.W.2d 597, 600 [3], holding that proof of prior convictions under the act may be made by certified transcripts of serial records kept by the Missouri Department of Corrections, and State v. Crow, Mo., 388 S.W.2d 817, 820 [3], permitting amendment of an information under Rule 24.02 at any time before verdict to incorporate allegations invoking the second offense act because such does not constitute a separate or different offense.

This contention must fail here because the record does not show any leave granted, any exercise of discretion, or any order, by the court, within the meaning of Sections 545.290 and 545.300 and Rule 24.02, from which it might be said that such an amendment was accomplished. See State v. Watson, supra, 383 S.W.2d 1. c. 758 [7]. And, as previously mentioned, the court made no finding of the applicability of the second offense provision. These inadequacies of the record are emphasized by the trial judge’s own words upon argument on this point: “I don’t think you need to take up any more time arguing that matter, because the Court is of the opinion that he was neither sufficiently and properly charged as being, as you call it, a second offender, some call it as an habitual criminal — and the Court now holds that he was neither sufficiently charged, definitely charged nor definitely proved, either one, and the Court so holds at this time.”

Nevertheless, the court assessed punishment. a jury function in this case, and for that error the judgment must be reversed and the cause remanded.

Appellant does not contend that the evidence is not sufficient to sustain a conviction for felonious stealing but, in an attempt to secure outright reversal, argues that the court should have suppressed certain evidence without which the conviction could not stand. His precise contention is that the court erred in overruling his motion to suppress and admitting in evidence "items obtained by unreasonable, illegal and unconstitutional searches and seizures of appellant’s automobile, said search not being an incident to a lawful arrest and the appellant not having intelligently and knowingly consenting (sic) to such search.”

A pretrial hearing was held on appellant’s Motion to Suppress evidence. Harry D. Quigley testified that on the date of the alleged crime, March 1, 1965, he was an officer of the Kansas City, Missouri, Police Department assigned to the Antioch Shopping Center area of Clay County, Missouri. He had occasion to observe appellant walking in the west parking lot at Antioch with a lady who was later found to be Mrs. Wiley. He placed him under arrest “at his automobile. * * He was standing beside the automobile when he was contacted.” Officer Quigley was accompanied by Lyndon Wynes, another Kansas City police officer. Prior to the arrest “We received a call to Macy’s in the Antioch Shopping Center on a shoplifter. Upon our arrival we were contacted by the tailor * * who stated he had witnessed the parties involved take a suit or some clothing and walk out of the store without paying for it. * * * And he came from the store and pointed the people out as they were walking up the parking lot. We contacted them at the car * * When first seen by Officer Quigley, the Wileys were “twenty yards, maybe,” from their car, walking toward it. Officer Quigley advised appellant that “he was under arrest for shoplifting in the Macy store.” He searched appellant’s person, “we looked in the automobile and then we asked * * * Mr. Wiley if he would open his trunk. He took the keys and opened the trunk lid. * * * we found in the trunk two suitcases and several items of clothing laying inside the trunk.” He did not think the suitcases were opened at that time. The automobile was later removed to the police department, opened again, and the contents, including items not the subject of this case, removed. There was no search warrant. “ * * * the items which the tailor said the parties had taken were identified * * * at the scene. The tailor came to the car behind us and identified the clothes at the scene.”

Lyndon Ray Wynes was the first of the two officers to arrive at Macy’s in response to the theft report. He identified the informant as the tailor at Macy’s, Mr. Nichols. He said that Sergeant Charles Thorp also arrived at the scene and participated in the search there. Officer Wynes was with Officer Quigley and also saw appellant for the first time when he was “approximately twenty yards away from his car.” He arrested appellant when he was about ten yards from the automobile. He did not touch appellant but there was no question of an arrest having been made. “I walked up to him after we first got to the scene, there, and I asked him if he would mind opening his trunk. He didn’t say anything at all, just went around and opened the trunk.” He observed “a lady’s suit laying on top in a sack, and I believe a suitcase.” He didn’t recall if the suitcases were opened at the scene. He also had no search warrant and no written consent to search was given.

The motion to suppress was overruled but was renewed at trial in connection with objections to the introduction in evidence of two pairs of men’s pants and a lady’s suit. There was some confusion in the evidence both on pretrial hearing and upon trial on whether the items were in the suitcase or on top and whether the suitcases were opened in the parking lot as well as later at the police station. Irrespective of confusion, however, Officer Quigley at the trial testified that the trousers which were admitted as part of the subject matter of this prosecution were found on top of the suitcase and that the suitcase in which the lady’s dress in evidence was found had been opened in the parking lot.

“Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime * *. This right to search and seize without a search warrant extends to things under the accused’s immediate control.” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777.

In determining whether an accused’s arrest is lawful, “the evidence will be viewed in the light most favorable to the state,” State v. Cantrell, Mo., 310 S.W.2d 866, 868 [3], and under Section 84.710, V.A. M.S., Kansas City police officers Quigley and Wynes had the power to arrest appellant if they had reason to believe him to have violated any law of the state. These officers were given reliable information by Mr. Nichols when he showed them the accused on the way to his car and described the items which he accused appellant of stealing. The evidence shows also that they informed appellant he was under arrest at a point beside or in close proximity to his automobile. Such circumstances gave rise to a reasonable and lawful exercise of the officers’ power of arrest; and the search which is shown to have followed immediately after appellant was told he was under arrest was an incident of lawful arrest which required neither warrant, advice on rights against self-incrimination, nor consent, and the evidence introduced in this case, found in the course of that search, is admissible. State v. Edwards, Mo., 317 S.W.2d 441, 445 [1-3]. In other words, the search and seizure was accomplished here at the time of and incident to the arrest, with removal of the discovered property being postponed until the accused, the arresting officers, and the automobile arrived at the police station. Such circumstances distinguish this case from State v. Edmondson, Mo., 379 S.W.2d 486, and Preston v. United States, supra, where the searches and seizures were unlawful because not conducted as an incident to the arrests but only after the cars were taken away to the police station or to a garage.

Appellant complains also of remarks of the judge in connection with his oral instruction to the jury on the desirability of reaching a verdict. This need not be discussed because it is unlikely that such remarks would reoccur upon retrial.

Judgment reversed and cause remanded.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John CRUMP, Appellant.
    Nos. 51668, 51669.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HIGGINS, Commissioner.

Appellant pleaded guilty to two charges of murder in the first degree, Section 559.-010, V.A.M.S., and was sentenced by the court to life imprisonment on each charge. He moved thereafter under Criminal Rule 27.26, V.A.M.R., to vacate the judgment and sentence in each case, and his appeals from the orders denying such motions have been combined.

These cases began with the filing of felony complaints in the Magistrate Court of Washington County, Missouri, arising from two homicides on July 18, 1959. The complaints were made by Robert L. Carr, Prosecuting Attorney of Washington. County. On July 27, 1959, appellant waived preliminary hearing in both cases and was ordered held for trial in the circuit court.

On August 8, 1959, the prosecuting attorney filed information on his oath in each of the cases. On September 4, 1959, defendant, by attorney of his own selection, David L. Colson, filed Affidavit for Change of Venue and Disqualification of the Judge in each case and, on September 8, 1959, venue in each case was awarded to Jefferson County in the 23rd Judicial Circuit of Missouri.

On November 16, 1959, Honorable Emery W. Allison of the 25th Judicial Circuit assumed jurisdiction of these cases and, on that date and in each case, the defendant appeared in person and by his attorney, David L. Colson. Further record at that time in each case shows: “And now the defendant being duly arraigned, waives the reading of the information and enters his voluntary plea of guilty to the charge of Murder in the First Degree, the nature of said charge and the range of punishment therefor having been fully explained to the defendant. And the Court states to the defendant that he has voluntarily entered his plea of guilty to the charge of Murder in the First Degree, a felony, and now asks the defendant if he has any legal reason to give why judgment should not be pronounced upon him in accordance with his plea of guilty and the defendant says nothing.” The court thereupon assessed defendant’s punishment at life imprisonment and entered sentence and judgment accordingly in each case.

On February 25, 1965, appellant filed his motions to vacate judgment and sentence. The motions are identical except for case number and name of victim. On April 20, 1965, John Anderson, Attorney at Law, Hillsboro, Missouri, was appointed counsel for appellant in respect to these motions.

On July 30, 1965, the foregoing motions came on for hearing at which appellant was represented by Mr. Anderson, and “upon the pleadings and argument of counsel, the court, in causes entitled State of Missouri versus John Crump, Jefferson County Circuit Court Docket Number 19363 CR and State of Missouri versus John Crump, Docket Number 19364, denies the motion in each cause previously filed by defendant John Crump to vacate judgment and sentence.” Mr. Anderson secured an order granting appellant leave to appeal in forma pauperis, filed notice of appeal and, thereafter, with leave of court, withdrew as counsel.

Appellant says first that his convictions violate his constitutional rights because they were had upon information rather than on indictment of a grand jury as provided by Amendment V, United States Constitution.

The Fifth Amendment does provide, with exceptions not involved here, that no person shall be held to answer for a capital crime unless on a presentment or indictment of a grand jury. Such limitation does not govern these prosecutions, however, because it has no application to state procedure, and Article I, Section 17, Missouri Constitution, V.A.M.S., authorizes criminal prosecution by indictment or information. State v. Waller, Mo., 382 S.W.2d 668, 671 [4]; State v. Martin, Mo., 395 S.W.2d 97, 99-100 [2-4] ; Hurtado v. People of State of California, 110 U.S. 516, 534, 4 S.Ct. 111, 292, 28 L.Ed. 232.

Appellant’s second contention, although making some observations about one Skiles who allegedly got him intoxicated, is that “the information is a null and void document, insufficient of verifications of an accusation.”

Both informations set out the method and means by which the killings were accomplished and they contain all the essential elements of the offense of murder in the first degree as defined in Section 559.010. The information in Case 19363 states “that one John Crump at and in the County of Washington and State of Missouri, on or about the 18th day of July, 1959, did then and there willfully, unlawfully and feloniously, after deliberation and premeditation, and of his malice aforethought, strike, kill and murder one Bobbie Lou Shipp, with a certain Stevens 12 gauge shotgun, serial #95803, which he, the said John Crump, then and there held in his hands and struck against and upon the head of the said Bobbie Lou Shipp, by which means fatal wounds were thereby feloniously and with deliberation, premeditation and malice aforethought inflicted upon the said Bobbie Lou Shipp; contrary, etc., * * *.” The information in Case 19364 is in the same form and contains the same allegations except to charge that John Crump did “shoot, kill and murder one G. L. Barr, by then and there discharging a certain Stevens 12 gauge shotgun loaded with powder and shot, etc., * * These informa-tions are similar to forms approved many times. See for examples: State v. Floyd, Mo., 403 S.W.2d 613, 615; State v. Finn, Mo., 243 S.W.2d 67, 70 [1],

In respect to verification, both the complaints and informations were made upon the official oath of Robert L. Carr, Prosecuting Attorney of Washington County, Missouri, and Criminal Rule 24.16 and Section 545.240, V.A.M.S., expressly provide that the prosecuting attorney may verify an information upon information and belief. “It is only where the information is supported by the affidavit of a private individual that such person must have actual knowledge of the offense.” State v. Pace, Mo., 402 S.W.2d 351, 354 [3, 4]; State v. Statler, Mo., 383 S.W.2d 534, 536 [1]. So also in appellant’s State v. Simpson, 136 Mo.App. 664, 118 S.W. 1187.

Appellant next “presents he has never premeditated, deliberated nor wanted to kill any person in his life * * He urges several propositions, namely, that circumstances may create a suspicion of guilt but are also consistent with innocence; that elements of premeditation and deliberation are not presumed from a killing with a deadly weapon; that premeditation means thought beforehand and deliberation means the act is done in a cool state of blood, and then argues on these propositions and that of his intoxication. None of these matters is the point here, however, and appellant states his situation correctly only when he recognizes by his own citation, State v. Reppley, 278 Mo. 333, 213 S.W. 477, 479 [3], that a plea of guilty is a confession of the truth of the facts stated in the information. It has been demonstrated previously that these informations contain all the elements and factual allegations essential to the offense of murder in the first degree, and the record clearly shows that on November 16, 1959, the appellant appeared in court in person and with counsel of his own choosing; that he was duly arraigned and waived reading of the informations; that he voluntarily entered pleas of guilty to the charges of murder in the first degree contained in the informations, only after the nature of the charges and range of punishment were explained; that he was granted an opportunity to say why sentence should not be pronounced. He makes some references to youth, ignorance, fear, and to his alleged intoxication when he killed his victims, but he has failed to plead facts whereby those or any other allegations establish, if proved, any claimed invalidity of these judgments. State v. Warren, Mo., 344 S.W.2d 85, 87 [6], On the contrary, and under the circumstances here, appellant, by his guilty pleas to informations sufficient to charge murder in the first degree, admitted his guilt and the truth of all the charges, allegations, and elements contained in such informations. State v. Hadley, 249 S.W.2d 857, 860 [1]; State v. Gray, Mo., 406 S.W.2d 580, 583 [4]; Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94, 96 [5].

Appellant’s transcripts show second motions for relief under Rule 27.26 in which he couples attacks on his life sentences with attacks on sentences of 75-years’ imprisonment on charges of assault with intent to kill entered in cases C4013 and C4014 on November 20, 1959. The trial court does not appear to have considered these second motions and rightly so, because in a proceeding under Rule 27.26 it is improper to attack more than one judgment in a single motion. State v. Engberg, Mo., 391 S.W.2d 868, 869 [1]. And the judgments in C4013 and C4014 were not entered at the same time as the judgments in 19363CR and 19364CR (the differences in case numbering suggest even a different venue), and they are not shown to have involved related offenses to warrant consideration on this appeal as in State v. Macon, Mo., 403 S.W.2d 630, 631 [1].

Appellant’s motions stated no facts to raise an issue of the constitutional validity of his convictions, and the trial court, therefore, properly denied the motions on the files and records and the motion itself, without the necessity of an evidentiary hearing. State v. Engberg, supra, 391 S.W.2d 1. c. 871.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Troy CLARK, Appellant.
    No. 52219.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Special Asst. Atty. Gen., Pacific, for respondent.
   BARRETT, Commissioner.

A jury found Troy Clark guilty of murder in the second degree and fixed his punishment at 60 years’ imprisonment; the trial court reduced the punishment to 45 years’ imprisonment and he has appealed.

For eight or nine years Nick and Patricia Russo operated the Hanger Bar at 3800 E. 31st Street. The area residents once predominately white had become predominately Negro and the Russos changed their operation from a public bar or tavern to a private club in which the 1400 or 1500 members were admitted by card for which they paid a yearly membership of fifty cents. On September 3, 1965, about ten o’clock, Mrs. Russo was at the bar, her husband was in the office in a back room and there were three or four patrons, two sitting on stools at the bar, one about the middle and one at the back. The appellant Clark, a Negro, walked in, sat on a stool at the back end of the bar and asked Mrs. Russo for a beer. She asked for his club membership card and he asked to see the manager. Pat went to the rear and called her husband who came out and at the back end of the bar engaged Clark in conversation, there were no threats or heated words and the witnesses could not hear what they said to one another. They all agree, including Clark, that Nick and Clark started toward the front door, Nick holding onto Clark’s arm as if escorting him out. Pat, facing the bar, suddenly yelled “Nick,” and Clark whirled with a gun in hand, said “Here’s my card, buddy” and fired two shots, one striking Nick in the chest. Pat got a revolver from back of the bar and as Nick held onto Clark and they both fell to the floor fired one shot in their direction and she says that Clark from a kneeling position fired one shot at her. She handed the revolver to Tom Cook and went to call the police. At the second shot by Clark, Ted Harrison hit him over the head with a chair causing him to drop his umbrella and his gun, a .25 caliber Italian-made Delesi-Brescia automatic. Clark did not fall all the way to the floor but as he dropped his gun ran out the front door in a crouched position with Tom Cook in pursuit firing Nick’s .32 caliber Smith & Wesson revolver. Clark, one bullet through his right arm and a “grazing wound” on his stomach, was taken to St. Luke’s Hospital where he was arrested.

Clark’s version of the shooting was that Nick asked for his card and “I tell him T don’t have a card’ and, he say, ‘Well, I can’t serve you,’ he say ‘in the first place we don’t serve your kind here no way, in the second place we don’t serve no niggers at all, in this bar at all.’ ” Clark says he told him “I just want a beer,” but Nick says “Well, let’s go. I don’t want you in here,” and “He grabbed me, you know, by the shoulders, kind of pulled me down to the feet, kind of a motion like trying to throw me out, and I told him, ‘Well, I will go, you don’t have to push me out. I will be glad to go.’ ” And he said Nick had “ahold of my whole back, arms and all, he was trying to, like escorted me out” and he said that he told Nick “just move his hands from me. And he didn’t — well then I pushed him away, so at that moment, I guess he thought I was fighting or something, then he swung on me and I swung back. * * * Then we just started fighting, just him and I, then all of a sudden a couple more guys jumped in and was helping him. One guy hit me with a chair and one guy was kicking me, I was getting the best of him, and I was trying to get out but the commotion, you know, was — so when I couldn’t get away from them, fight and all, this guy, he pulled a pistol — I didn’t see the pistol but he just— I felt the shot when he shot me. * * * When I felt the shot, these guys on me, I didn’t know what to do, I thought that I was almost dying, and so I thought about this pistol I had and I pulled it. * * * It had about four, four or five shells in it. * * * Well, after I was shot I pulled my pistol and fired, I guess. * * * I just pulled it and fired but everybody was on me * * *. I wasn’t aiming at any particular one.” He denied firing at Patricia and finally said that he and Nick were about eight inches apart when he fired two shots, the second one, he said, “was kind of an accident because an automatic, when you pull it, it will go off, if you don’t know what you are doing, just squeeze it a little, it will go off.”

In these briefly narrated circumstances the court instructed the jury upon murder, manslaughter and self-defense. In the trial of his cause and here the appellant has been represented by the same experienced lawyer who urges three assignments of error, two of them directed to Instructions 4 and 8, 4 relating to manslaughter and 8 relating to self-defense. As to Instruction 4 it is urged that it does not include as an element of manslaughter a finding or requirement of “the death of the victim.” The state contends, since the appellant Clark was found guilty of murder in the second degree, that he may not complain of error in the manslaughter instruction. State v. Davis, Mo., 400 S.W.2d 141. And generally that may be true but the appellant here urges that by reason of the assigned error the jury could not have found him guilty of manslaughter, the lesser offense, and therefore he was prejudiced. “If, however, there were errors in the instruction on the lesser offense of manslaughter, possibly there could be ground for complaint on the theory that an erroneous manslaughter instruction prevented the jury from convicting of that lesser crime rather than of murder in the second degree.” State v. Brooks, Mo., 360 S.W.2d 622, 628; State v. Aitkens, 352 Mo. 746, 763,179 S.W.2d 84, 94.

The case upon which the appellant relies as requiring a finding “without a design to effect death, in a heat of passion,” State v. Colvin, 226 Mo. 446, 126 S.W. 448, is not too helpful because decided in 1909 when in addition to all other unnecessary complications there were at least three degrees of manslaughter (RSMo 1899, §§ 1821-1829) and as the Colvin case pointed out in second degree manslaughter the words “without a design to effect death” were “the very essence of this offense, this degree of manslaughter, that it must not have been an intentional killing.” In 1919, Laws of Mo. 1919, p. 256, these statutes and the degrees of manslaughter were all abolished and thenceforth, so far as material here, manslaughter has been defined as “Every killing of a human being * * * not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.” RSMo 1959, § 559.070, V.A. M.S. And of course under the latter statute there must have been a “death of the victim” but “All reference to manslaughter at the common law was omitted in the act of 1919. Every killing of a human being is now manslaughter unless done deliberately, premeditatedly, or maliciously, or under circumstances found by the jury to be justifiable or excusable. This statutory definition does away with ‘heat of passion’ as a necessary element of the crime, and such element need no longer be included in an instruction defining the facts necessary for the jury to find in order to return a verdict of guilty of manslaughter. Said Instruction No. 7 defining manslaughter excluded first and second degree murder and justifiable and excusable homicide and followed the language of the statute and is sufficient.” State v. Gore, 292 Mo. 173, 187-188, 237 S.W. 993, 997.

Perhaps this alone is sufficient to dispose of the appellant’s claim of error, if not it must be kept in mind that his basic claim is that the instruction is erroneous in “not including as an element the death of the victim.” This despite the fact that in his brief “The appellant admitted the killing of Nick J. Russo” and thus while he claims it is a necessary finding to the degree of the offense, “the death of the victim” was not a disputed or questioned issue. Then too Instruction 4 begins “ ‘Manslaughter is the killing of a human being not herein declared to be murder or excusable or justifiable homicide” and then after hypothesizing the assault with a gun “under such circumstances that it is not excusable or justifiable homicide.” Subsequently “justifiable homicide” and “excusable homicide” are defined. In these circumstances it is difficult to believe that the jury was misled or confused and failed to find the appellant guilty of the lesser offense of manslaughter because in specific terms it did not require a finding of “the death of the victim.”

In this connection the appellant’s third assignment is that Instructions 4 and 8 defining “justifiable homicide,” “excusable homicide” and “self-defense” are erroneous in “not conforming with the statutory definitions” of these terms, RSMo 1959, §§ 559.-040 and 559.050, V.A.M.S. In the first place the appellant cites no case or authority other than the mere language of the statutes in support of this claim. And then he points to the definition of murder in the second degree (RSMo 1959, § 559.020, V.A. M.S.) and argues, despite the quotation from State v. Gore above, that the court was bound to “instruct on both common law and statutory excusable or justifiable homicide.” The assignment and assertions are not self-demonstrative and in the absence of some demonstration of prejudice “(i)t is not necessary to define expressions in general use such as these (“excusable”). No explanation could make their meaning clearer.” State v. Cade, 326 Mo. 1132, 1138, 34 S.W.2d 82, 84; State v. Gadwood, 342 Mo. 466, 494-495, 116 S.W.2d 42, 58-59; State v. Brookshire, Mo., 353 S.W.2d 681, 689.

The appellant’s other assignment is that the court erred in not declaring a mistrial because of the prosecuting attorney’s prejudicial argument to the jury that “he had filed the charge that he thought appellant was guilty of.” In connection with this assignment as with his other points appellant points to five or six other matters to which there were no objections, or objections were sustained and to other matters that were legitimate subjects of argument and these matters are not “so glaringly offensive and prejudicial” as to demand action by the court without objection and are not open questions here. State v. Goodwin, Mo., 352 S.W.2d 614, 620. In the second place the statement to which exception is now taken occurred at the outset of the prosecutor’s argument and there was no objection when it was made. After nine pages further in the record and after an interruption by the court, defense counsel called attention to the statement and objected “I think that this is prejudicial for the Prosecutor to express his opinion as to the defendant’s guilt and I move for a mistrial.” The court replied, “Well, I would have sustained your objection to ány personal comment of the Prosecutor, ahd I would have told the jury to disregard it, but I will deny your motion for mistrial.” And it should be noted, there was no request for any other relief than a mistrial. In the third place the statement is excerpted from its context and given a prominence and meaning all out of proportion to its place in the argument. It is too long to set out here but counsel for the state started out by telling the jury about the place of counsel and the purpose of argument, how, as he called it “(a) lawsuit begins,” he described the police investigation and arrest, the compiling of a report all of which is presented to the prosecuting attorney, and he said “at which time we lodge a charge or file a complaint against the party arrested. This complaint is labeled an information. This is the reason for the first instruction that the Court has given you. On this information we charge the crime of which we think the defendant is guilty. On the back we list witnesses, with their names and addresses,” etc. (Emphasis supplied to identify the specific language complained of.) Of course, it is not proper for a prosecuting attorney to express his personal opinion, especially one inferentially based on something not before the jury, of the defendant’s guilt but the quoted sentence is by no stretch of the imagination comparable to the instances upon which he relies. State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120. It is doubtful in context that the language is fairly open to the criticism that it was an expression of a personal opinion but if it possibly is subject to the appellant’s interpretation the trial court has some discretion in considering its prejudicial effect (State v. Satterfield, Mo., 336 S.W.2d 509, 515) and upon this record there is no manifest error or demonstrable abuse of discretion.

Questions not required to be presented in a motion for new trial have also been examined and the transcript shows compliance with all matters necessary to be considered by this court “upon the record before it” (Cr. Rule 28.02, V.A.M.R.; RSMo 1959, § 547.270, V.A.M.S.) and since no prejudicial error is found or demonstrated the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    Jerry M. JANIS and Joseph R. Janis, Minors, by Pearl Clark, Their Next Friend, Appellants, v. Charles L. JOST and Beatrice L. Jost and Laclede Gas Company, Inc., Respondents.
    No. 51561.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      Marvin Klamen, Klamen, Fletcher & Weisman, Clayton, Burton H. Shostak, Hoffman & Shostak, St. Louis, of counsel, for appellants.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, Harlan & Harlan, J. L. Harlan, Jr., Clayton, of counsel, for respondents, Charles L. Jost and Beatrice L. Jost.
    Charles F. Hamilton, St. Louis, for respondent Laclede Gas Co.
   HIGGINS, Commissioner.

Action by minors for $25,000 damages for wrongful death of their father allegedly caused by landlords’ negligence in failing to repair or maintain a flue in reasonably safe condition, and by natural gas supplier’s negligence in respect to repair and inspection of a gas heater and failure to discover a dangerous condition in the flue. Answers were denials of the charges and pleas of contributory negligence. Judgment was for defendants on a directed verdict at the close of plaintiffs’ case. Plaintiffs’ evidence, then, circumstantial and direct, viewed in its most favorable light, Schneider v. Prentzler, Mo., 391 S.W.2d 307, 309[1, 2], established these facts:

On January 9, 1962, Oval Janis, age 49, father of plaintiffs, died as a result of carbon monoxide poisoning. At the time of his death, Mr. Janis was a tenant of Charles L. and Beatrice L. Jost at 2928 Lemp Avenue, St. Louis, Missouri. The Josts acquired this 50-year-old property in 1950. A center wall divides the building into two symmetrical parts, each with a basement, first-floor apartment of three rooms and bath, second-floor apartment, and third-floor apartment of two rooms and bath. The Janis family occupied the south first-floor apartment. The westernmost chimney on the south side was made of brick and contained two 9" x 9" stacks, one for the south second floor apartment and one for the Janis apartment. The flue opening into the front room of the Janis apartment was about 29 feet below the top of the chimney and approximately three feet of this flue were within the south wall of the apartment. A pocket about 12 inches deep extended below the flue opening to catch residue.

Mr. Janis rented the apartment in 1957 at which time he received keys to the doors. Jost retained a key to avoid breaking doors and installing new locks in case the tenant left with the keys; it was never used to enter the Janis premises. The Janis family was given complete control of its 3-room unfurnished apartment and was privileged to exclude all persons from the premises during their occupancy as month-to-month tenants. Mr. Janis owned and installed his own 28,000 BTU circulating space heater and it burned natural gas through a separate gas meter and piping serving only the Janis apartment. Mr. Janis was billed directly by the gas company. The heater was located in the front room and was connected to the flue opening by about six feet of stovepipe. The Josts did not know who installed the heater and its vent pipe and they were unaware of any chimney stoppage at any time during the Janis occupancy. The Josts would redecorate apartments and clean and cap flues when the apartments were vacant but, during occupancy, maintained only the outside of the building. The chimneys on the building were tuckpointed in 1959 and coping tile was installed on them about a year after the accident.

Oval Janis and his wife were found dead in their bed in the middle room of the apartment. Joseph, who also slept in that room, was found in a stuporous condition. Jerry slept in the front room by the heater and was found unconscious. Both boys revived at the hospital. The weather was extremely cold. Upon his arrival, Corporal King of the police department found the windows and doors of the apartment closed. The heater was on; the room was hot. Sergeant Walsh arrived later and turned off the heater. He turned it back on and found it to be operating well. It was again turned off and then dismantled. Discolored sand, mortar and soot were found to be blocking the vent pipe and the stack opening. The pipe and the wall around the opening showed some soot, moisture, and rust streaks.

On December 23, 1960, Roy Bockenholt, a serviceman for Laclede, received an order to adjust the heater. He found soot had formed on the grate. He adjusted the air on the burner, the same was stopped up, and he cleaned the lint from the burner. He left instructions for the customer to disconnect the heater and clean it of carbon. He left the heater turned off.

In the opinion of William Coad, mechanical engineer in the heating business, “a reasonable standard of safety commensurate with the danger,” would have required the serviceman to check the draft “verifying whether or not there was a blocked flue.” In this opinion, he assumed that the serviceman who found soot on the grate meant the surface of the burner. He recognized also that he may have meant soot on the radiant or ceramic material. Carbon monoxide is a product of combustion and usually is carried away by the flue but, if the flue is blocked, it is directed through the draft diverter back into the room. Soot, also, ordinarily is carried away through a vent with a good draft. Soot would be produced in the heater by improper adjustment of the air opening on the heater or an inadequate draft. When a flue is open there is little opportunity for heat gases to cool within the flue and thus little condensation. Mortar in a chimney normally slowly deteriorates with age, becomes granular, and falls to the bottom of the flue, thus producing a rising level of debris. Tuckpointing, tremors, sonic booms, temperature extremes, and hammering increase the rate of deterioration. In the opinion of Ronald R. Edwards, architect, it is a safe, necessary, and recommended practice for anyone who has a space heater to make inspections to see if his vent is clear and the draft is proper. Following the accident, Laclede’s serviceman J. Hecht “removed four-inch vent from heater and found building flue stopped with sand and mortar. The heater was not carbonized and combustion was good. Meter was turned on in 1958. The last complaint here was in December of 1960.”

Mr. Janis was mechanically inclined and was employed as a typewriter serviceman earning $103 per week.

Appellants contend that the evidence that Laclede’s employee who adjusted air on the burner of the Janis heater “found soot on the grate, which indicates improper burning; that the employee failed to turn off the gas * * * at its source, coupled with expert testimony that a failure on the part of the employee to inspect the flue and vent system of the unit was a failure to exercise a reasonable degree of safety commensurate with the risk; that no such inspection was made; that carbon monoxide was produced by improper burning causing decedents’ death,” was sufficient to warrant submission of their case against La-clede to the jury.

The indispensable element of this action against Laclede is proof of the allegation “that in December, 1960, and subsequent thereto, said flue leading to the premises occupied by Oval Janis was substantially blocked, causing the creation of carbon monoxide gas within and without of the heater, attached to said flue by means of a vent pipe, and within the premises occupied by Oval Janis.” The thrust of appellants’ argument against Laclede is that Laclede, in making the December, 1960, service call nearly thirteen months prior to the death of Oval Janis, negligently failed to discover that the house flue was then blocked and negligently failed to disconnect the heater.

No direct evidence was adduced which tended to prove that the house flue was blocked at the time of the service call; and the circumstantial evidence offered on this issue falls short of being such that a jury could be permitted to infer from it, without resort to guess and conjecture, the further facts necessary to demonstrate a breach of Laclede’s duty. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 848[6]; Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541, 548 [12].

Appellants say that their expert, Mr. Coad, testified that a partially or almost totally blocked flue condition existed at the time of Laclede’s inspection, but such is not the case. Mr. Coad did testify in respect to rust, moisture, and condensation found on the wall and vent pipe January 9, 1962, that “ * * * it’s not something that happens within a few days; it takes a longer period of time. Again, I couldn’t say specifically what period of time.” The condition was said to have existed “for some time longer than a few days or a few weeks” and that it “existed for several months of heating system operation. That’s as close as I can pin it down.” When asked whether “a totally blocked flue condition” existed in December, 1960, Mr. Coad could give an opinion only “with qualifications.” He then stated that if the air adjustment on the burner had not been changed between December, 1960, and January 9, 1962, it would be his opinion that the flue was blocked “or a partial or almost total blockage of the flue” existed “roughly six heating months. * * * Now, if the heater had been adjusted in between, of course, this assumption would not hold.” Nothing was offered on the issue thus made of lack of adjustment “in between,” and “a child could turn the adjustment plate.” Mr. Coad stated there are “about seven” heating months in a year, and seven or eight heating months intervened between the service call and the accident. As a result of such testimony, a fatal inferential gap exists between vent blockage on January 9, 1962, and Laclede’s alleged lack of inspection in December, 1960. Appellants attempted to prove that Laclede failed to check the draft by an interrogatory calling for a description “fully and in detail” of Bockenholt’s acts while on the Janis premises. The answer did not mention checking of the draft. If it be assumed that this proves nonfeasance amounting to negligence, it is of no avail here, absent proof, that such a check would have disclosed the blockage condition upon which this case is based. In other words, a condition not shown to have existed could not have been found, and failure to inspect under such conditions could not be the proximate cause of these deaths.

According to Mr. Coad the soot found in the heater by Bockenholt was indicative either of an inadequate draft or an improper adjustment of the primary air opening. That Bockenholt chose to attend to the adjustment of the air control without any showing of what adjustment he made, if any, other than to clear it of lint, does not establish negligence in failing to inspect the flue, because where such circumstantial evidence tends to support equally either of two inconsistent factual inferences, one of which results in a failure of proof of alleged negligence, the factual issue or issues essential to a case may not be said to be established by legitimate proof. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511, 513[4]; Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626, 634 [13]; Green v. Ralston Purina Co., Mo., 376 S.W.2d 119, 124[3].

Other discrepancies exist in appellants’ interpretation of their evidence which point up the failure of their casé against La-clede. They say that Bockenholt adjusted the venturi or air supply control to produce a good flame; the evidence shows only that he removed lint and “adjusted” the burner. No evidence was adduced to show what adjustment was made or that the need for any adjustment made was related to flue blockage. The inference that “the gas was not shut off at its source” is said to arise from the service ticket being silent “in this regard.” The record shows only that Bockenholt “left the heater turned off” and there is no “ticket” in evidence. The only mention of soot on the burner and of improper adjustment of the primary air opening or an improper draft came from the inferences drawn by Mr. Coad. The only evidence of soot in the heater was from Mr. Bockenholt and he found it on the “grate” of the heater, and Mr. Coad thought this could refer even to the ceramic material in the stove. No evidence was adduced to show existence of any rust and moisture conditions on the vent pipe and near the flue opening at the time Mr. Bockenholt serviced the heater. Appellants infer “that something was wrong with the unit is clearly evident from the fact that Bockenholt turned the heater off and left the premises.” Such is purely speculation and guesswork because the only evidence in this connection was that the heater was left off for the specific reason and purpose of having the “customer * * * disconnect circulator heater and clean heater of the carbon.”

They also complain of the heater being turned off in cold weather in living quarters while, at the same time, they would seek an inference of neglect from failure to turn the gas off “at its source,” and there is no evidence on when or by whom the heater was relighted and whether it was cleaned or adjusted after Bockenholt left his instructions. All such matters are left to guesswork and speculation.

Appellants have attempted to bring their facts into line with authorities which are readily distinguished. Gas Service Co. v. London & Lancashire Ins. Co., 8 Cir., 188 F.2d 404, reviews the duties of gas suppliers concerning leaks or defects in piping including the elementary rule that there is no obligation on the gas suppliers as to customers’ piping and appliances unless they have notice of the defect. The facts showed that a leak in the customer’s service line caused an explosion and that the gas company had no notice of it. Fields v. Missouri Power & Light Co., Mo., 374 S.W.2d 17, involved an uncapped pipe in a tenant’s premises. The gas company installed but did not turn bn the gas supply to plaintiff’s premises. Several controls were located in the same area and someone without authority did turn on the gas to plaintiff’s premises and an explosion resulted. It was recognized that a gas supplier may be guilty of negligence if a defect in the customer’s appliance causes injury “provided the supplier or distributor has sufficient notice of such leak or defect.” 374 S.W.2d 1. c. 22 [2]. It was also recognized that “merely shutting off the flow of gas is not sufficient when by reason of the location of the device used to shut off the gas, * * * an ordinarily prudent person would reasonably foresee that some unauthorized person might turn on the gas before the defect * * * would be remedied.” 374 S.W.2d I. c. 24[3], The latter rule does not affect this case because the control or turnoff for Janises’ heater was located in premises under their exclusive control and therefore not subject to manipulation by unauthorized persons. Nothing in the citation supplies the missing element in appellants’ case, i. e., proof that a blocked chimney existed at the time of Laclede’s adjustment of the heater.

Finally, it is illogical to suggest that a blocked flue existed in December, 1960, when the only evidence of carbon monoxide poisoning resulting from a blocked flue was that of the deaths on January 9, 1962, and “four episodes in last three weeks— headaches, nausea, myalgia, dizziness— whole family has same illness” diagnosed as influenza, all after nearly thirteen months had elapsed in seven or eight of which the heater would have been in use.

Appellants contend that their evidence “that the chimney into which decedent’s furnace flue was attached was used in common; that Jost had retained control or right to control over the chimney; that the flue was blocked by mortar granules from within the chimney which granules take a long time to accumulate; that the blocked flue causes improper burning of the furnace flame thereby producing carbon monoxide ; that the flue was completely blocked at the time of decedent’s death; that said defendants could have discovered the condition in the flue had they inspected it; and that the carbon monoxide was the cause of death,” was sufficient to permit plaintiffs to submit their case to the jury against the Josts.

“In determining the liability of a landlord for personal injury to a tenant * * * because of a defective condition of the premises, there is * * * a clear distinction * * * between a case where the defective condition is in the premises demised to the tenant and of which he has been put into full possession and control, and one where the defective condition is in a portion of the premises (including agencies and appliances) which has been reserved by the landlord for use in common by his tenants as a group. In the first case, except for latent defects known to the landlord but not known to or discoverable by the tenant, the landlord is under no liability in the absence of an agreement to repair. * * * the landlord is under a duty to exercise ordinary care to keep the reserved portion of the premises in a reasonably safe condition, and will be answerable in damages for personal injuries resulting from his failure to perform.” Marentette v. Luechtefeld, Mo.App., 268 S.W.2d 44, 46-47[1, 2]. See also Coates v. Dewoskin, Mo.App., 379 S.W.2d 146, 148[2-4],

Under this rule it is clear that appellants’ evidence fails to show that the flue which served the Janis heater was in any way reserved for common use or in any degree retained in the control of the landlord after the premises which it served were demised to Janis. The only evidence adduced on this crucial issue is contrary to appellants’ theory. Mr. Jost was called as a witness for appellants and, according to him, it was explained to Mr. and Mrs. Janis at the time of the letting that they had complete control of their apartment and exclusive control of the flue which served only that apartment. The retention of a key by the landlord was not for inspection or repair but was only for entry at the termination of a tenancy in case the tenant failed to leave the key. Such practice enabled him to avoid breaking doors and locks at the end of a tenancy. Underwood v. Moloney, Mo.App., 397 S.W.2d 18, 22 [1-3]. The heater, its vent, and its meter and supply were all under the ownership- and exclusive control of the tenant, the landlord neither furnishing nor servicing the same. Appellants’ architect, Edwards, established that the flue serving the Janis apartment had but one opening and that was in the Janis apartment available only to their inspection and cleaning.

Appellants argue that “there can be no question but that the chimney stack into which decedent’s space heater was connected was used in common by the other tenants whose heaters were connected thereto in like manner; * * *. That Jost retained such control (of the chimney) * * * is clearly shown by the evidence that Jost attached a space heater vent system in the same chimney stack in the third floor apartment up above Janis * * and that Jost is thus liable for “failure to inspect or to clean the chimney.” The insurmountable difficulty with that argument here is that no such evidence was adduced and, since no retained control or reserved or common use was shown, this case is distinguished from those cited by appellants in which control was retained by the landlord: Marentette v. Luechtefeld, supra, involved a refrigeration gas line serving a gas refrigerator furnished the tenant by the landlord; Green v. Kahn, Mo., 391 S.W.2d 269, involved a combination gas cooking and heating stove and attendant piping furnished the tenant by the landlord; Thompson v. Paseo Manor South, Inc., Mo.App., 331 S.W.2d 1, involved exposed heating pipes running through one tenant’s apartment from the landlord’s central heating system to another tenant’s apartment; Fitzpatrick v. Ford, Mo., 372 S.W.2d 844, involved a porch on premises which were used in common by the tenant and the landlord; Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, involved a landlord’s negligent repair of a gas refrigerator furnished the tenant by the landlord; Lederer v. Carney, Mo.App., 142 S.W.2d 1085, involved tenant’s illness due to fumes from landlord’s heating plant.

Nor is this case similar to Fitzpatrick v. Ford, supra, and Nuckols v. Andrews Investment Co., Mo.App., 364 S.W.2d 128, where the landlord, although having no duty to repair, undertook to repair defective premises and did so negligently. The only evidence of repair here was that of maintenance by cleaning and capping the chimney vent and covering the chimney top at times when the tenant’s premises had returned to the landlord’s control upon termination of tenancy.

This case has had its counterpart in other jurisdictions. In Grieser v. Huntington National Bank of Columbus, 176 Ohio St. 291, 199 N.E.2d 556, the landlord demised two floors of an apartment building to one Wilders. Wilders sublet two apartments and provided each with a heater. Grieser was Wilders’ subtenant in one of the apartments and died from inhalation of fumes escaping from a lighted gas heater due to a clogged chimney into which the heater was vented. The owner of the premises was not liable because “A landlord who has demised property, parting with possession and control thereof to a tenant in occupation, is not responsible for injuries arising from defective condition of such premises, when that defect arises during the continuance of the lease.” 199 N.E.2d 1. c. 558 [1]. “As far as the evidence shows, the fee owners of the property, out of possession and control, knew nothing about the existing conditions, including the presence of the heaters, had no right to intrude into the premises, and were under no obligation to manage and supervise the activities being conducted there.” 199 N.E.2d 1. c. 559.

In Roy v. Smith, 134 Cal.App., 240, 25 P.2d 251, the complaint failed to state a cause of action against an owner of apartments in one of which Fern Roy was a tenant prior to her death by asphyxiation due to a defect in the operation and venting of the gas floor furnace in her apartment.

So, in this case, the trial court properly directed a verdict against appellants because their evidence failed to prove their theories of liability against respondents.

Judgment affirmed.

HOUSER and WELBORN^ CC., concur.

PER CURIAM:

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

All concur.


author: HOUSER, Commissioner.

text:
    Grayling ROBBINS, a Minor, by Patricia Cookemboo, Next Friend, and Patricia Cookemboo, Appellants, v. Thomas MEYERS, Respondent.
    No. 52401.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      Vincent M. Igoe, St. Louis, for appellants.
    Evans & Dixon, by John C. Shepherd and Paul V. Gilbert, St. Louis, for respondent.
   HOUSER, Commissioner.

Grayling Robbins, a 6-year-old child, brought suit in Count I through his mother and next friend, praying judgment for $15,-000 damages for personal injuries, and his mother in Count II sought $750 to compensate her for medical, surgical, X-ray and hospital expenses incurred as a result of the boy having collided with a vehicle driven by defendant Thomas Meyers. At the close of plaintiffs’ case the court sustained a motion for a directed verdict for defendant. Plaintiffs appealed to the St. Louis Court of Appeals from the judgment entered on the directed verdict. The parties briefed and argued the case in the court of appeals, which properly transferred the case to this Court for lack of jurisdiction.

Respondent’s brief in the court of appeals suggested that the appeal be dism’ssed for failure to comply with Civil Rule 83.05, V.A. M.R. Although the deficiencies in appellants’ brief were pointed out in detail appellants made no effort, either in the court of appeals or in this Court, to file a proper brief or to amend their original brief.

Appellants’ brief contains no jurisdictional statement. The statement of facts does not fairly state the facts relevant to the questions presented for determination. The points relied on do not show what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Only abstract statements of law are set out. In numerous instances the statements in the argument as to what the record contains do not designate the page of the transcript where the statement may be found or verified. Appellants having violated nearly every requirement of Civil Rule 83.05, their appeal is dismissed. Ambrose v. M.F.A. Co-operative Ass’n, Mo.Sup., 266 S.W.2d 647, 648.

In dismissing this appeal we are not depriving this six-year-old litigant and his mother of anything of value or substance. Plaintiffs failed to make a submissible case of negligence or causation. Defendant was driving a vehicle at the rate of 10 m. p. h. down the center of a 15-foot alley. The child, who had been playing in a backyard, came through a gate in a brick fence, into the alley and against the left front fender of defendant’s vehicle with sufficient force to knock him back against the fence and to the ground. The circumstances in evidence show conclusively that defendant had neither the opportunity nor the time and distance within which to have taken effective evasive action to prevent the collision. The front of the vehicle did not touch the boy, and the wheels did not run over him. It is obvious that he ran into the side of the vehicle, without fault on the part of defendant. The cause of the collision was the conduct of the child.

Appeal dismissed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

HOLMAN, P. J., HENLEY and SEILER, JJ., and HAYES, Special Judge, concur.


author: FRANK W. HAYES, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Respondent, v. Andrew George KIMMEL et al., Exceptions of C. H. Cowger and Dorothy Cowger, (Defendants) Appellants.
    No. 52109.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Gayles R. Pine, of Pine, Welling, Jones & Mitchell, Warrensburg, and Shubert & Hight, Harrisonville, for defendants-appellants.
    Robert L. Hyder, Jefferson City, and Earl H. Schrader, Jr., Kansas City, for plaintiff-respondent.
   FRANK W. HAYES, Special Judge.

This is a condemnation proceeding. The parties will be referred to as plaintiff and defendants. Jurisdiction lies in this court. A detailed recitation of the evidence is not required for the reason that the only issue raised on appeal by defendants (appellants) is that the trial court erred in admitting over their objection Plaintiff’s Exhibit No. S, which was an option dated November 13, 1964, purportedly signed by defendants giving to Phillips Petroleum Company, a Corporation, the right to purchase a tract of land 200' x 200' owned by defendants.

The defendants owned and resided on a 58-acre tract of land located at the northwest part of Harrisonville, Missouri. The tract was located directly south of the intersection of Highway 71 and 71 By-pass and had approximately 1,320 feet frontage along Highway 71. Located on the property were a Phillips service station, a dwelling house, a garage building, a shed-type barn, a two-story block building, a well house and a birdhouse. The buildings and 21.44 acres of land, plus 1.60 acres as permanent easement and .04 acres as temporary easement, were taken in the condemnation proceedings. There were three separate tracts of land left after the taking. There were 23.82 acres left on the east side of the new highway, 5.99-acre tract to which there was no access, and a tract of 4.35 acres in the northwest corner of the 58-acre tract. Defendants offered evidence that their land was the prime piece of development property in Harrisonville, Missouri, and suitable for both residential and business locations. Their witnesses testified that defendants were damaged by the condemnation in the following sums: $300,000, $450,000, $224,000 $240,620, and $243,000.

The plaintiff’s witnesses fixed the defendants’ damages by the taking at $69,250 and $71,000. The jury assessed defendants’ damages at $110,000.

The sole issue here is whether the court erred with respect to its ruling as to the admission of plaintiff’s Exhibit No. 5. Plaintiff’s Exhibit No. 5 was an option to purchase real estate in favor of Phillips Petroleum Company, a Delaware Corporation, purportedly from the defendants, covering a tract of land 200' x 200' at the junction of U.S. Highway 71 and U.S. Highway 71 By-pass. Plaintiff’s Exhibit 11 was an option to purchase real estate in favor of Phillips Petroleum, a Delaware Corporation, signed by defendants, covering a tract of land containing 4.35 acres. Both of these options were dated on November 13, 1964.

On cross-examination of defendant Cow-ger, he testified that he had not sold this 4.35 acres to the Phillips Oil Company, a Corporation and that an option to purchase this tract had not been exercised by the Phillips Oil Company, a Corporation. He repeated these same statements several times.

The plaintiff then called John Fenley as a witness. Fenley testified that he was district manager for Phillips Petroleum Company, a Corporation, and that he had brought with him the company file pertaining to the Cowger land. He testified that the company had exercised their option to purchase the 4.35-acre tract from defendants and identified plaintiff’s Exhibit 5 as being the option. He identified plaintiff’s Exhibits 6, 7, 8, 9, and 10, being letters or copies, as showing the exercise of the option to purchase this 4.35-acre tract. These exhibits were admitted over objections of defendants. Upon cross-examination it was developed that Fenley was mistaken and that plaintiff’s Exhibit 5 did not cover the 4.35 acres in question but covered other land. It was plaintiff’s Exhibit 11 which dealt with the 4.35 acres in question and it was admitted in evidence without objection.

Defendants contend that plaintiff’s Exhibit 5 was not properly identified, that it covered land foreign to the issues herein, that there was no proof that defendants executed it, or that the option was exercised, and that it reflected upon the credibility of defendant Cowger and created bias and prejudice against him in the minds of the jury. They made many objections to plaintiff’s Exhibit 5 and related exhibits on various grounds and cited several authorities in support thereof. Since we base our opinion on the following record, it is not relevant or necessary to rule the said objections or discuss the cases cited in support thereof.

At the close of all the evidence the following occurred:

“MR. PINE (Outside the hearing of the jury) : Before this case is closed I want to make a record here. I now ask that the matter of the property described in Plaintiff’s Exhibit 5 and all matters pertaining to said exhibit be stricken out and that no reference be made to it in the arguments for the reason it has nothing to do with the property option of Phillips Petroleum Company which refers to the 4.35 acres of land; there is no showing Phillips Petroleum Company ever at any time attempted to exercise the option which is Plaintiff’s Exhibit 5.
“THE COURT: Do you have any record you desire to make on that ?
“MR. SCHRADER: I think the record is now clear on this and I have no intention of arguing about the two options and I agree in all fairness to them it should be withdrawn and if they make no reference to it, I will make no reference to it.
“THE COURT: The request as to Plaintiff’s Exhibit 5 will be sustained and Plaintiff’s Exhibit 5 and all the evidence relating to it will be withdrawn from the jury. Neither side will be permitted to comment on that.”

It will be noted that defendants made two requests relative to admission of plaintiff’s Exhibit 5 and relating exhibits, first, “that the matter of the property described in plaintiff’s Exhibit 5 and all matters pertaining to said exhibit be stricken,” and, secondly, “that no reference be made to it in the argument.” The trial court sustained defendants’ request and ruled, first, that: “all the evidence relating to it will be withdrawn from the jury,” and secondly, that: “Neither side will be permitted to comment on that.”

It is obvious from the above record that the trial court granted defendants’ request in full and gave them all the remedial relief they requested. They did not request a mistrial or that the jury be discharged or any further remedial action by the trial court and they may not complain on appeal that the trial court should have done more than they requested.

As is said in Olsten v. Susman, Mo.Sup., 391 S.W.2d 331, 1. c. 334:

“The question was improper. It presents the substance of the issue presented in Olsten v. Susman, 391 S.W.2d 328, Case No. 50,753. We said there that a statement made by the same counsel in argument, which attempted to bring before the jury the result in another case, authorized the granting of a mistrial upon request. However, in that case as in this one, the request for a mistrial was withdrawn, and for the reasons there set forth plaintiff cannot now complain on appeal of an incident after the trial court took at the time every remedial action requested. Reference is made to the opinion in Case No. 50,753 for the reason for this result and the cases cited.”

Case No. 50,753 referred to above is Olsten v. Susman, Mo.Sup., 391 S.W.2d 328, where this court, in discussing this subject, said, 1. c. 330:

“ * * * Following this rationale and based on this theory, it also has repeatedly been held that when the trial court sustains an objection to improper argument, and no further remedial action is requested, no error is preserved for appellate review, Copeland v. Terminal R. Ass’n of St. Louis, 353 Mo. 433, 182 S.W.2d 600, certiorari denied 323 U.S. 799, 65 S.Ct. 554, 89 L.Ed. 637; Seested v. Post Printing & Publishing Co., 326 Mo. 559, 31 S.W.2d 1045; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Gann v. Chicago, R. I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Busse v. White, Mo., 274 S.W. 1046; Outman v. Union News Co., Mo., 237 S.W. 800, and the party may not complain on appeal that the trial court should have done more than requested. Shepard v. Harris, Mo., 329 S.W.2d 1, 13; Chiodini v. Terminal Railroad Association of St. Louis, Mo.App., 287 S.W.2d 357. In this case it is not a situation where plaintiff failed to request remedial action. He made the request, it was granted, and he then expressly and understandingly withdrew the request and elected to take his chances with the jury. The trial court granted to plaintiff all the remedial action requested or desired. Under these circumstances the trial court did not err when it refused to grant plaintiff a new trial because of the improper argument of defendant’s counsel.”

Again, in Shepard v. Harris, 329 S.W.2d 1, 1. c. 13, this court en banc said:

“Defendant further contends that the trial court erred in failing to declare a mistrial or to reprimand plaintiffs’ attorney for asking defendant’s counsel a certain question in the presence of the jury and in another instance for refusing to instruct the jury to disregard statements of plaintiffs’ counsel made in argument. We have examined those two instances and in both of them the trial court took the action requested by defendant’s counsel at the time. Defendant asked for no other relief and may not now complain.”

In Booten v. Sutter, Mo.App., 216 S.W.2d 129, at 1. c. 132, the court said:

“Defendant next contends that the Court erred in allowing plaintiff to testify to special damages when no such damages were pleaded by plaintiff in her petition. We think it is unnecessary to set forth the testimony complained of because the Court sustained defendant’s objection thereto and excluded all such testimony from the consideration of the jury. Furthermore, it is obvious that such testimony did not work any material or substantial prejudice against defendant in the minds of the jury for they awarded plaintiff only one cent in damages. If defendant believed that the court’s action in sustaining her objection to such testimony and excluding it from the jury’s consideration was not sufficient she should have requested the court to declare a mistrial. However, she did not make any such request and cannot now properly be heard to complain on that point.”

We hold that the trial court gave the defendants all the remedial action which they requested and did not commit error in its ruling on plaintiff’s Exhibit S and other exhibits.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by HAYES, Special Judge, is adopted as the opinion of the Court.

All concur.


author: ANDERSON, Judge.

text:
    PACIFIC FINANCE LOANS, INC., Plaintiff-Appellant, v. Charles C. RICHARDSON et al., Defendants, Milladean Richardson, Defendant-Respondent, Harold Hoeh, Constable, Intervenor.
    No. 32048.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      W. W. Sleater, St. Louis, for plaintiff-appellant.
    Goldberg & Kline, St. Louis, for defendant-respondent.
    Joseph B. Moore, County Counselor, Clayton, Thomas W. Wehrle, Deputy County Counselor, Patrick M. Fiandaca, III, Associate County Counselor, for interve-nor.
   ANDERSON, Judge.

This is an appeal by Pacific Finance Loans, Inc., from an order and judgment of the Circuit Court of St. Louis County dismissing its appeal from the Third District Magistrate Court of St. Louis County. The relevant facts as they appear in the transcript before us are as follows.

On March 2, 1956, appellant obtained a judgment in said Magistrate Court against Charles C. Richardson and Milla Richardson, husband and wife. This judgment was revived on June 20, 1962 in the sum of Five Hundred Fifty-nine Dollars and Seventy-one Cents ($559.71), and costs.

On August 13, 1962, an execution on this judgment and a writ of garnishment in aid thereof was issued. The writ of garnishment was directed to Ladue Local Lines, Inc., returnable November 9, 1962, and was signed by Robert C. Kelly, Constable. By this writ, said garnishee was ordered to answer on oath such interrogatories that might be exhibited and propounded to it by plaintiff touching its indebtedness, etc. to the defendant Charles C. Richardson. There was the further recitation that “I (Constable) do attach, in your hands, all debts due from you to the said defendant, or so much thereof as shall be sufficient to satisfy the debt, interest and costs in above case.” This writ was served on August 17, 1962.

The transcript reveals that on August 23, 1962, defendant, Charles Richardson, executed an affidavit to obtain a release of 90% of the funds attached under said writ, same alleged to be wages due him from garnishee. It was also alleged in said affidavit that he is married and head of a family and therefore entitled to said exemption under the law. The record does not show whether this claim of exemption was or was not allowed. There seems to have been further proceedings in this garnishment proceeding. Apparently interrogatories were filed by plaintiff and an answer to them filed by the garnishee, since there is a notation in the transcript that a denial of the answer of the garnishee was filed by plaintiff on November 20, 1962, and the cause set for hearing November 30, 1962. Following this, there is an entry reciting that on November 30, 1962, the hearing on the denial of the answer of the garnishee was continued by consent to February 28, 1963. There is also an entry made on the same day that a notice of appeal was filed by plaintiff’s counsel from a denial of its motions. This apparently referred to a motion filed by plaintiff on November 20, 1962, “ * * * to hold Constable and Surety on his bond and motion to re-tax $4.85 constable costs,” which motions were denied on that date.

However, the above mentioned appeal is not the appeal before us. We refer to it merely to show the confused state of the record in this case.

On November 9, 1962, another execution and garnishment in aid was issued. The writ of garnishment was directed to Ladue Local Lines, Inc., returnable February 13. 1963, and was signed by Robert C. Kelly, Constable. By this writ said garnishee was ordered to answer on oath such interrogatories that might be exhibited and propounded to it by plaintiff touching its indebtedness, etc. to defendant Milla Richardson. There was the further recitation that “I (Constable) do attach, in your hands, all debts due from you to the said defendant, or so much thereof as shall be sufficient to satisfy the debt, interest and costs in the above case.” This writ was served on Ladue Local Lines, Inc., on November 16, 1962.

On November 30, 1962, defendant, Milla Richardson, executed an affidavit alleging that the fund attached represented wages due her from garnishee; that she is married, the head of a family; a resident of St. Louis County, Missouri, and that the affidavit was executed for the purpose of obtaining a release of 90% of all wages due her from her employer, as provided by law. After the return date of the writ, the cause was continued from time to time, the last being from April 11, 1963 to April 24, 1963. Apparently no interrogatories were filed, since none appear in the transcript.

On March 29, 1963, Robert C. Kelly filed in said cause in the Magistrate Court, a motion which is in words and figures as follows:

“Comes now Robert C. Kelly, the duly elected, qualified and acting Constable of the Third District, St. Louis County, Missouri, by and through his attorney, the St. Louis County Counselor, and respectfully prays this Court for an order authorizing and directing said Constable to dispose of proceeds paid over to said Constable through the garnishment process,
“UPON THE GROUNDS THAT:
“1. Execution of Garnishment was issued to the Third District Constable, and thereafter Defendant Milla Richardson, after having made an Affidavit for exemption as head of a household, presented same to Garnishee, Ladue Local Lines, Inc.
“2. Prior to the return date (2/13/63) of the Execution for Garnishment, Ladue Local Lines paid to Constable the sum of One Hundred Twenty-six Dollars Forty-Six Cents ($126.46), although an Affidavit authorizing said Garnishee to release ninety per cent (90%) of said sum was presented to said Garnishee, Ladue Local Lines, Inc.
“3. Thereafter, Defendant Milla Richardson sought from movant the Release of ninety per cent (90%) of her wages after the Garnishee had paid over the entire sum to this movant, and the Plaintiff Pacific Finance Loans, Inc., claimed that Defendant was not entitled to head of household exemption, and a dispute as to the proper disposition of such garnisheed funds has arisen.
“NOW THEREFORE, Robert C. Kelly, Constable, Third District, St. Louis County, Missouri, respectfully prays this Court to issue its Order directing said Constable to dispose of said garnisheed funds according to law.”

Thereafter, there appears in the transcript in said cause the following: (Caption omitted)

“No 32106 District 3rd April 24, 1963
“Motion of Constable Robert C. Kelly, 3rd District, St. Louis County, for an order of court for disposition of proceeds paid to said Constable by writ of garnishment, heard, argued and Court orders disposition of $126.46 presently in the hands of said constable to be paid by said constable as follows: 90% of said fund to be paid to Milla Dean Richardson on basis of her head of household affidavit dated Nov. 30, 1962; 10% of said funds to be paid to the plaintiff, Pacific Finance Loans, Inc.
/S/ “Herbert C. Funke, Judge”

Thereafter, there appears in the transcript in said cause a notice of appeal, dated May 3, 1963, signed by plaintiff's attorney, as follows:

“Notice of Appeal is hereby filed with the Third District Magistrate Court of St. Louis County, that the above named Plaintiff does hereby appeal to the Circuit Court of St. Louis County, Missouri, from the judgment entered in favor of the above named Defendant, Milla Richardson, on the Motion of Constable Robert C. Kelly, Third District, St. Louis County, for an Order of Court for Disposition of Proceeds of Garnishment, the said judgment entered on the 24th day of April, 1963.”

After the transcript of the Magistrate Court was filed in the Circuit Court, there was a hearing before Judge Hoester. Apparently, there was no evidence offered other than the Magistrate Court’s transcript, for none appears in the record before us. The ruling of the Circuit Court, as it appears in the transcript was as follows :

“THEREAFTER, on the 1st day of May, 1964, said cause was called for hearing in the Circuit Court of St. Louis County, Missouri, before Honorable Robert G. J. Hoester, Judge of Division No. Eight, plaintiff appeared with attorney, defendant Milla Richardson appeared by attorney, and the Court entered of record its order denying the appeal of plaintiff on the ruling of the Magistrate on the Motion of Robert C. Kelly, Constable, as per the following memorandum, (omitting caption):
“Cause called, plaintiff appears, and defendant Milla Richardson appears by attorney. Appeal of Plaintiff on ruling of Magistrate on Motion of Robert C. Kelly, Constable, denied.
/S/ “R. G. J. Hoester”
/S/ “W. W. Sleater,
Atty. for Plaintiff
/S/ “Israel Goldberg,
Atty for Milla Richardson”

Appellant has treated the above ruling as an order of dismissal of the appeal, and we will so regard it. After timely motion for new trial was filed by plaintiff, and overruled by the Court, plaintiff filed its notice of appeal to this court from the judgment of May 1, 1963.

Appellant’s sole contention is that the Court erred in dismissing its appeal. In support of this contention, it is urged that Milla Richardson, respondent herein failed to sustain her burden of proving that she was at the time of filing the exemption affidavit, the head of a family and entitled to the 90% exemption under the law. In the argument portion of its brief it is pointed out that respondent offered no evidence whatever on the subject and it is argued that since her husband had previously claimed said exemption the exemption was not available to her. It should be noted that the husband’s affidavit was executed on August 23, 1962, and that respondent’s claim for exemption was contained in the affidavit executed by her on November 30, 1962. Appellant’s argument presupposes that the Magistrate had jurisdiction to decide the issue,

It is our opinion that the trial court did not have such jurisdiction and that the appeal was properly dismissed for the reason that the judgment of the Magistrate had no validity. It has been held by our Supreme Court and by this Court, that the whole subject matter of the debtor’s protection of his exemption rights is committed to the officer making the levy, and that a Court has no jurisdiction to allow or disallow same. State to Use of Conklin v. Barada, 57 Mo. 562; State ex rel. Lewis v. Barnett, 96 Mo. 133, 8 S.W. 767; Eisenberg v. Northwestern Turn & Liederkranz Ass’n, 70 Mo.App. 436. The above cases hold that if the Constable allows the exemption he should make his return with a declaration therein that he reserved and set over to the debtor so much of the garnishee’s indebtedness as the exemption right covered. These cases are quite old, but they are based on the principle that inferior courts are creatures of statutes and have no authority beyond that given them by statute. We find no statutory changes granting further authority to Magistrates or lesser authority to Constables. So, the cited cases are just as applicable today as when they were written.

The judgment of the Magistrate was under the foregoing authorities coram non judice, and the appeal of plaintiff to the Circuit Court from same did not confer jurisdiction on said Court. Eisenberg v. Northwestern Turn & Liederkranz Ass’n., supra.

The judgment appealed from is affirmed.

WOLFE, P. J., and RUDDY, J., concur.