author: BARRETT, Commissioner.

text:
    J. O. SWINK, (Plaintiff) Appellant, v. J. Ed SWINK, Myra Swink, Florence Swink Matthews, Lyman A. Matthews, (Defendants) Respondents.
    No. 49264.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied May 13, 1963.

      McClintock & Medley, Charles W. Medley, Flat River, for appellant.
    Finch, Finch & Knehans, Lehman Finch, Cape Girardeau, Roberts & Roberts,- Raymond S. Roberts, Farmington, for respondents.
   BARRETT, Commissioner.

This is an action to recover $80,371.67 actual and punitive damages for alleged breach of covenant in a warranty deed. The plaintiff is Judge J. O. Swink and the defendants are two of his seven surviving brothers and sisters, J. Ed Swink and Florence Swink Matthews, and their respective spouses. The land out of which this controversy arose consists of a tract in Illinois, known as Moro Island, and three pieces of property in Missouri, apparently of lesser value, designated as the Fleming, Peers and Griffin tracts. Prior to the death of their parents, E. E. and Lillie Swink, in 1940, this and other property was part of an inter vivos trust created in 1935 by the parents for the benefit of their children or their descendants, which included the plaintiff and his now defendant brother and sister. It is not necessary to a determination of this appeal to accurately describe and record the history of each of these tracts of land, it is sufficient to say that there was a settlement and division of the trust property among the heirs of E. E. and Lillie Swink. And the plaintiff and his brother Emmett D. Swink once had the title to these particular properties because on December 28, 1938, for a recited consideration of $20, they and their wives by warranty deed conveyed the property to the defendant brother and sister “Florence Swink Matthews and J. Ed Swink, Trustees.” The habendum clause in this deed contained the usual covenants of seizin in fee, right to convey and freedom from encumbrances. It also recited the customary warranty “against the lawful claims and demands of all persons whomsoever.” Thereafter, on May 29, 1940, the now defendants J. Ed Swink and Mrs. Matthews, together with her husband Lyman and his wife Myra, as parties of the first part joined in a. conveyance, to illustrate, of Moro Island, to. J. O. Swink for a recited consideration of $21,000. While this deed was signed and executed by both husband and wife and there was a warranty to defend against “the lawful claims and demands of all persons whomsoever,” the covenant was that “the said J. Ed Swink and Florence Swink Matthews, Trustees, hereby covenanting * * This suit for actual and punitive damages is based upon this deed and its covenants.

In his petition the plaintiff alleges as a breach of the covenants that on April 6, 1959, Alma Swink Paulson, another sister and a resident of Bryan, Texas, instituted an action against him in the United States District Court for the Eastern District of Missouri claiming that she “was the owner in fee of ½ of the above real estate” and was also entitled to 1/3 of the proceeds ($225,000) of a sale by him to Kaiser Aluminum Company of the mineral rights in Moro Island. He alleges that by reason of this suit by his sister he was compelled to employ counsel and finally “was compelled to purchase the outstanding 1/3 interest of Alma Swink Paulson in said real estate for a consideration of $50,000,” and that by reason of this failure of title he was entitled to recover from these defendants $30,371.-67 and costs, and because of their willful and malicious representations $50,000 punitive damages.

In response to the plaintiff’s two-count petition each defendant has filed a separate answer. In general the answers admit the execution of the deed but set up the action by Mrs. Paulson in federal court and state that the purpose of that action was to assert and establish her right to a one-third interest in the property and to impress a constructive trust upon the title held by plaintiff. The allegations of Mrs. Paulson’s petition were set forth; in these she asserted that when the trust estate was distributed this particular property was conveyed to J. O. Swink, it being understood that he, Ruth Swink Clark, another sister, and Mrs. Paulson “were each the owner of a one-third (1/3) undivided interest therein.” Thereafter each defendant filed a motion for summary judgment, together with affidavits, exhibits and depositions, particularly from Mrs. Paulson’s federal court case. The plaintiff filed an affidavit in opposition to the defendants’ motions for summary judgment, and, subsequently, he also moved for summary judgment.

Upon the submission of the motions for summary judgment the trial court found and decreed that the defendants did not warrant the title to the property conveyed to plaintiff “in their capacity as individuals.” The court found that Mrs. Paulson’s suit “was not an attack on the title” of plaintiff, but, by reason of an agreement that he would hold the property for the benefit of Mrs. Clark and Mrs. Paulson, was “a suit to impress a trust on the title of J. O. Swink.” In addition, for reasons to be noted, the court found that the defendants “were not guilty of any breach of warranty.” The court having determined that there was “no genuine issue of facts to be determined under plaintiff’s petition and defendants’ answers” sustained the defendants’ motions for summary judgment, and it is from the judgment entered upon this order that the plaintiff has appealed.

The parties to this cause have not insisted as they did in Jacobson v. Vestal, Mo., 361 S.W.2d 677, that the appeal be determined, whether properly applicable or not, upon the motion for summary judgment and particularly upon the accompanying depositions. The briefs do not comply with rule 83.05, V.A.M.R.; failure to plainly correlate abstract rules or statements to the facts or to the court’s ruling has obscured the meritorious determinative issues. See Stone, “Effective Appellate Briefs,” 15 Journ.Mo.Bar, 80, 84-88. Despite the lack of consistent articulated theory the appellant in effect contends, especially in view of his counteraffidavit, that there was an issue of fact to be determined and that therefore summary judgment procedure was not applicable because, in the language of the rule, the defendants have not shown “by unassailable proof to be entitled thereto as a matter of law.” Sup.Ct.Rule 74.04. This essentially is the equivalent of reviewing a court tried or eqúity case, and eventually of resolving the always open question of the sufficiency of the evidence to support the judgment upon any possible theory and.finally of entering such judgment upon the record as the trial court “ought to have given.” Sup.Ct.Rules 73.01, 83.13. It is not necessary in this view to consider summary judgment procedure in detail, it is sufficient to note that a summary judgment is a determination as a matter of law that, there is ho issue of fact to be tried. Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678; Ieppert v. John Hancock Mutual Life Ins. Co., Mo.App., 347 S.W.2d 436. And here as is often the case “Many of the decisions relating to motions for summary judgment involve simply the determination whether there is an issue of fact to be'tried or whether the moving pfirty is,entitled to judgment as a,matter of law)’ 3 Barron & Holtzoff, Federal Practice and Procedure, Sec. 1247, p. 212. In this, connection it is safe to venture the suggestion that if as a matter o.f law the .judgment is sustainable upon any theory it is immaterial that some of the facts found or reasons stated by .the trial court were not well founded.

Considering first the instrument itself, the deed,, of May 29, 1940, from the defendants to the plaintiff. .It does not appear in what, capacity the- plaintiff took title, the conveyance to him is without reservation and ,in fee. >• It is signed first, however, by J. Ed and Mrs. Matthews', “Trustees,” ‘and again by J. Ed and ■ his wife Myra and Mrs.. Matthews and her husband ..Lyman. In -the beginning there is the recital of J. Ed and Mrs. Matthews, “Trustees,” and J. Ed and Mrs. Matthews, together with their spouses “parties of the first part.” But neither the spouses nor J. Ed and Mrs. Matthews as individuals join in the covenants and warranties of the habendum clause, there is the recital that “the - said J. Ed Swink and Florence Swink Matthews, Trustees, hereby covenanting * * This fact alone may be- sufficient to exonerate Myra Swink and Mr.- Matthews, but it is not necessary to consider the effect of signing and covenanting as “trustee” or the purpose and effect of the husband and wife of trustees joining in a conveyance. And it is not deemed necessary to consider the nature of covenants and their violation (Annotation 5 A.L.R. 1084), in general a covenant of warranty “is an assurance or guaranty of title.” Annotation 172 A.L.R. 18, 20. It may be assumed for the purposes of this opinion that when the defendants conveyed land to their plaintiff brother by warranty deed and he was subsequently compelled, eighteen years later, to buy another sister’s butstandihg one-third interest, that technically, if not in fact, there was a breach of the covenants of warranty. But the problem is whether in view of the conceded or indisputable facts of this record the defendant grantors are'liable in actual and punitive damages to the plaintiff for that breach.

■ For its inferential, if not direct, bearing an additional undenied factor may be noted. In their motions for summary judgment the defendants assert that in 1938 title'to this property was in the appellant- and- his brother Emmett, that they conveyed to the defendants and that since then the defendants have “made no conveyances and having had no transactions of any kind whatsoever affecting the real estate.”' Thus there is the twofold inference, if there was an outstanding interest or a breach of covenant, that the interest was outstanding and the breach existed when the appellánt previously held title to the property and, second, that the defect- was certainly not brought about or caused by the defendants." Upon this phase of the cause the cases relied’ on by the appellant'Serve only to .illustrate the general rule. ■ In' those cases, for example, the grantors conveyed and there was an omission of dower and this breach of covenant was recognized by the court even though the deficiencies did not appear from the muniments of title. Walker’s Adm’r v. Deaver, 79 Mo. 664; Durrett v. Piper, 58 Mo. 551.

In his affidavit in opposition to the defendants’ motion for summary judgment the appellant asserts that he purchased the property from them on May 29, 1940, for a total consideration of $33,400. And then he deposes “(3) That plaintiff had no knowledge of any agreements between defendants and Alma Swink Paulson or other persons that Alma Swink Paulson’s interests or the interests of other persons in said real estate would be reserved to such persons notwithstanding the execution of the warranty deeds,” “(4) That plaintiff had no agreement with Alma Swink Paul-son or other persons that he would receive their interests in said real estate” and “(5) That plaintiff had no agreement with defendants that he was accepting anything from defendants except fee simple title to said real estate for plaintiff’s sole benefit.” Conclusional, if not equivocal, statements 4 and 5 are hardly serious denials of the facts set forth in the defendants’ motions, particularly with respect to the force and effect of Mrs. Paulson’s suit in the federal court. Statement number 3, that he had no knowledge of any agreement between the defendants and Mrs. Paulson or other persons that her interest “would be reserved to such persons notwithstanding the warranty deeds,” is entirely beside the point. There is no claim by anyone that Mrs. Paulson’s interests were reserved to the defendants, the problem is whether the defendants are liable to the plaintiff in damages for these circumstances as a breach of the covenant of warranty.

As indicated, the appellant’s inconclusive counteraffidavit is hardly a denial of the validity of Mrs. Paulson’s claim that while he once had the legal title his sisters Mrs. Clark and Mrs. Paulson as a matter of fact each owned a one-third interest in this very property. In May 1945 he said this to Mrs. Paulson, “about the deeds— when our parents estate was divided in May 1940 I received the deeds from Florence and Ed, the then trustees, for those lands that you, Ruth and I received, in accordance with our understanding at the time and you and Ruth and I each own an undivided one-third interest in all of these properties — in the event that you should die your one-third interest would pass to your sons unless you would will it otherwise; * * If these interests and Mrs. Paulson’s claim were outstanding and the plaintiff had knowledge of them the fact of his knowledge would not necessarily defeat his right to rely on the covenant of warranty in the respondents’ warranty deed, but “Such knowledge may be considered, however, in determining whether it was intended that the covenant should extend to such defect.” 21 C.J.S. Covenants § 38, p. 908.

To further illustrate the inconclusiveness of the appellant’s counteraffidavit and to demonstrate from facts which appear “without substantial controversy” (Sup.Ct.Rule 74.04(d)) that the respondents are entitled to judgment as a matter of law within the meaning of the rule, specific reference, without interpolated comment other than supplied emphasis, is made to excerpts from the argument section of the appellant’s brief. “Plaintiff being familiar with the trust and the power of the trustee would take the property, subject to any breach of that power. * * * That Mrs. Paulson was claiming an interest in the property, regardless of any agreement with plaintiff, is shown by paragraph 4 of her complaint * * * in which she alleged she was entitled to a one-seventh interest in the trust estate, and by agreement between all of the parties she was entitled to a one-third interest in certain real estate involved in the present suit. Plaintiff had knowledge of Mrs. Paulson’s interest in the . trust estate, and may have recognized that defendant(s) could not convey her interest 'without her consent. However, he intended to purchase full legal title and he apparently assumed that trustee would pay Mrs. Paulson for her interest. The trustees apparently advised plaintiff that they were conveying full legal title to him and at the same time advising Mrs. Paulson that her interest was being transferred to plaintiff. * * * In conclusion plaintiff believes that the trial court has attempted to pass on defendants’ motion for summary judgment as he would in passing on an equity case. * * * Plaintiff submits that one of the factual issues in this case is the question of whether or not plaintiff was to take partial title for Mrs. Paulson or whether he was to purchase fee simple title for himself. The trial court has apparently erroneously attempted to pass on this issue” (contrary to the meaning and purposes of the summary judgment rule).

In addition, the undenied compelling factor is that if Mrs. Paulson had a valid claim to a one-third interest in the property which the appellant was compelled to purchase, that outstanding interest was by reason of his conduct and not because of some act or conduct on the part of his grantors or by reason of their breach of covenant. “In such a deed the grantor’s warranty is against judgments taken against the grantor. We know of no case where a warranty deed warranting against judgments has been held to warrant against judgments outstanding against the grantee. * * * A grantor warrants against his own obligations or judgments outstanding against him, and not against those outstanding against his grantee, unless such intention should be expressed in the instrument.” Storm v. Garnett, 99 Okl. 284, 292, 227 P. 417, 424. Compare the cases cited in 172 A.L.R. l. c. 80-88. In these circumstances and as between these parties it appears from the tacitly conceded, if not incontestable, facts that as a matter of law the appellant is not entitled to recover in this action and' the judgment is, therefore, affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    Herman GOODMAN, an Incompetent, by and through the duly appointed guardian of his Estate, Daisy Goodman, Plaintiff-Appellant, v. W. H. McCULLEY, Defendant-Respondent.
    No. 49366.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.

      Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Paul L. Bradshaw, Warren S. Stafford, Springfield, for appellant.
    Claude T. Wood, Richland, Charles H. Howard, Hendren & Andrae, Jefferson City, for respondent.
   HOLMAN, Commissioner.

Plaintiff sustained severe personal injuries when an automobile (owned and operated by defendant) in which he was riding left the highway and overturned. In this action plaintiff sought to recover damages for his injuries in the sum of $200,000. A trial resulted in a verdict for defendant. Plaintiff has duly appealed and here contends that the court erred in giving Instructions D-3, D-4, D-5, D-6, and D-7. Defendant’s position in this court is that said instructions were not erroneous, and, in any event, plaintiff is not entitled to recover because, as a matter of law, he was a guest within the meaning of the applicable Arkansas Guest Statutes.

On the dates hereinafter mentioned plaintiff’s home was near Dixon, Missouri, and defendant lived in Stoutland, Missouri. Both parties were employees of the Frisco Railroad and, in September, 1957, were temporarily assigned to a project near Amory, Mississippi. On September 20, 1957, plaintiff and defendant left Amory shortly after noon in defendant’s car en-route to their homes in Missouri. At about dusk, as the car reached the crest of a hill near the town of Imboden, Arkansas, it entered a rather sharp turn to the left and when defendant applied the brakes the car got off on the dirt shoulder, left the highway, and overturned. Defendant received only slight injuries, but plaintiff, who was asleep at the time, was thrown from the car and badly injured. He was unconscious for about ten days following the casualty. After receiving emergency treatment plaintiff was taken to the Frisco Hospital in St. Louis where he remained until January 25, 1958. An examination disclosed that he had sustained a fractured skull and a fracture of the right hip, tibia, and ankle bone. As a result of brain damage plaintiff developed post traumatic epilepsy.

The principal controverted issue in the trial related to the question of whether plaintiff was a guest within the meaning of the Arkansas statutes. Those statutes read as follows:

“75-913. No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned’ by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of the others.

“75-914. The term guest as used in this act [§§ 75-913, 75-914] shall mean self-invited guest or guest at sufferance.

“75-915. No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation * * shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the wilful misconduct of such owner or operator. * * * ”

There was no contention in this case that the automobile was wilfully or wantonly operated. The essential fact issue was whether plaintiff made “payment for such transportation” and hence came within the exception stated in Section 75-915, supra.

By reason of his injuries plaintiff was mentally confused and disoriented for more than two years following the casualty. Dr. Schlicht, who examined him in the fall of 1958 for the Railroad Retirement Board, testified that his “mental status was such that I doubt if he was even aware that I was present.” In October 1958, he was adjudged incompetent by the probate court and his wife was appointed his guardian. From the time of the casualty until after January 1960 he could not remember anything about the “trip” in question. However, plaintiff testified that, following a seizure he “had” in a drugstore in Dixon in January 1960, his memory started to return.

After a preliminary inquiry (held outside the presence of the jury) the trial court ruled that plaintiff was a competent witness. In regard to the arrangements for the trip, plaintiff testified that he met defendant the night before they left and “asked him for a ride home”; that no amount was mentioned but “I told him I would pay him”; that defendant said “O. K.” and the next day, picked him up at his bunk car; that when defendant picked him up, “I got in the car and sat down, I handed him a five-dollar bill. He taken it out of my hand. Q. (by Mr. Bradshaw): What did you tell him, if anything, that was for? A. I told him that was for my ride. Q. Did he take the five-dollar bill? A. He taken it out of my hand. Q. What did he say? A. He said O.K., and up the road we went. Q. Now was that five-dollar bill ever returned to you? A. No, sir. Q. Do you remember starting up the road with him? A. I remember starting up the road. Q. Now what is the next thing you remember? A. Waking up * * * I was in the hospital.”

Upon cross-examination plaintiff testified as follows: “Q. If I understand you correctly, Mr. McCulley did not ask you to pay, is that right? A. He didn’t say * * * he didn’t ask me, no. Q. You just handed him five dollars? A. That’s right. Q. Now, Mr. Goodman, did you intend that to apply on the expenses? A. Yes, sir. Q. And was that * * * did you estimate that as your share of the expenses to ride home ? A. Yes, sir. Q. So what you were doing then, Mr. Goodman, was sharing expenses with him? A. Yes, sir, that is right. Q. And that is all you were doing? A. I was trying to do.” He further testified that he had ridden back to Missouri with other workmen on a number of occasions and had always given them $5.00.

Defendant (called as a witness by plaintiff) denied that plaintiff ever paid or agreed to pay him any money. He did testify, however, that “somewhere around Jonesboro, he asked me where I was going to gas up, and I told him I would wait until I crossed the line at Thayer and not have to pay the Arkansas tax. Q. Is Thayer is Missouri or Arkansas? A. Thayer is just a little ways past the Missouri line in Missouri. He said, ‘When you gas up, I will go in with you on it.’ * * * Q. Up until the point of this accident had he paid for any gas? A. No. Q. Had you stopped for any gas? A. No.”

Upon the question of negligence plaintiff’s case was submitted under the res ipsa loquitur doctrine and there is no contention that he did not make a submissible case thereunder. As stated, the contention of nonsubmissibility is based upon the premise that plaintiff was, as a matter of law, a guest of defendant. In determining that issue we will view the evidence in the light most favorable to plaintiff and disregard the evidence offered by defendant unless it aids the plaintiff.

We have concluded that under the evidence in this case the jury reasonably could have found that plaintiff was not a guest within the meaning of the foregoing statutes and hence the court properly overruled defendant’s motions for a directed verdict. In that connection it should be noted that said statutes are in derogation of the common law and are to be strictly construed. Rogers v. Lawrence, 227 Ark. 117, 296 S.W.2d 899 [2]. And where, as here, there is a dispute as to the facts, the issue as to whether one is a guest is ordinarily a question of fact for the determination of the jury. Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906. “Whatever may be the law in other jurisdictions, see Annotation, 10 A.L.R.2d 1351, it seems to be well settled in Arkansas that payments by a passenger to the driver raise a fact issue for the jury (or for the Court in an action tried without a jury) as to whether the passenger is a guest under the Arkansas Guest Statute, Ark.Stats. §§ 75-913 to 75-915, or is a fare-paying passenger.” Hartsell v. Hickman, D.C., 148 F.Supp. 782, 785. See also, to like effect, McMahon v. De Kraay, 70 S.D. 180, 16 N.W.2d 308, which construed the Arkansas statutes; Ward v. George, 195 Ark. 216, 112 S.W.2d 30 [2]; Corruthers v. Mason, 224 Ark. 929, 277 S.W.2d 60; and Brand v. Rorke, supra.

Defendant contends that because plaintiff stated upon cross-examination that he paid the $5.00 as an estimate of his share of the expenses he was, as a matter of law, a guest under the said statutes. We do not agree. The Arkansas cases involving expense-sharing trips have been decided both ways, depending upon the particular facts involved. We will assume, for the purposes of this opinion, that under the law of Arkansas, if plaintiff had voluntarily bought some gasoline for defendant after the journey began, such would not have been sufficient to bring him within the exception to the guest statute. However, that was not the situation here. On the night before they left plaintiff told defendant that he would pay him. The next day, before the trip began, he paid defendant $5.00 “for my ride,” or as he stated in another instance, “I told him that was paying for my way home.” This constituted a payment of a definite sum and was sufficient, under the Arkansas decisions, to support a submission of the guest issue to the jury. Plaintiff’s mental processes in arriving at the amount he concluded he should pay would not destroy the legal effect of the payment. As indicated, we rule that the issue in question was properly submitted to the jury.

Plaintiff’s first contention is that Instruction D-3, given at the request of defendant, was prejudicially erroneous. That instruction reads as follows:

“The court instructs the jury that under the laws of the State of Arkansas no person transported as a guest in an automobile upon the public highways in the State of Arkansas may recover damages against the operator of the automobile for injuries, unless there is some agreement between the parties for the payment of compensation in consideration of the transportation.

“One who travels with the owner of a vehicle by invitation of the owner or by his own invitation is a guest within the meaning of the Arkansas Guest Statute unless there is some agreement between the parties for the payment of compensation in consideration of the transportation. A mere voluntary payment by the passenger, voluntary contribution to the expenses of the trip without any agreement therefor and as a matter of courtesy or friendship would not constitute the person contributing or paying a fare-paying passenger.

“You are therefore instructed that unless you find and believe from the evidence that the plaintiff agreed to pay and did pay, and defendant agreed to accept and did accept, $5.(¾? for transportation in defendant's automobile and plaintiff was a fare-paying passenger you must find plaintiff was a guest in defendant’s automobile, and if you so find, then you will find the issues for the defendant and against the plaintiff.”

We agree with plaintiff’s contention. It is our view that the italicized portion of the last paragraph is clearly erroneous. That requires a finding that plaintiff agreed to pay $5.00, and defendant agreed to accept that amount, for said transportation. There is no evidence that plaintiff agreed to pay, or defendant agreed to accept, $5.00. Plaintiff’s testimony was that on the 19th “I told him I would pay him.” No amount was mentioned. He stated that on the next day when he got in the car he handed defendant $5.00 which defendant accepted. Since there was no evidence that plaintiff agreed to pay $5.00, or that defendant agreed to accept $5.00, and since the instruction required a finding of those facts, in addition to the actual payment thereof, the practical effect of the submission was to direct a verdict for defendant. That, of course, was reversible error.

In regard to the first and second paragraphs of the instruction we note that they contain abstract statements to the effect that a voluntary payment without any agreement therefor is not sufficient to remove a person from guest status. We do not think a prior agreement was necessary under the factual situation shown in this case. As we have indicated, the payment and acceptance of the $5.00 “for my ride” at the commencement of the trip was sufficient. The payment herein was voluntary in the sense that it was not demanded or required by defendant. And yet, under the facts of this case, the voluntary nature of the payment would not require a finding that plaintiff was a guest. It is therefore clear to us that said abstract statements are not correct statements as to the law of Arkansas. It may be that these statements would not be prejudicial since, as hereinafter set out, plaintiff did submit a prior agreement to pay some amount, but we need not determine that question as we have heretofore ruled that the instruction was prejudicial in another respect.

Defendant says that any error in said instruction was common or invited error and plaintiff may not now complain thereof. The first contention is that plaintiff’s amended petition pleaded an agreement to pay $5.00. That is not sufficient to invite error. Many allegations are made in pleading which are not proved and which the party need not submit to the jury. There is also no merit in the contention that plaintiff’s attorneys, by testimony and by argument to the court, “led the trial court to believe that more than just payment was required to change one from a guest to a fare-paying passenger.” We have examined the cited portions of the transcript and do not find that this contention is supported by the record.

It is further contended by defendant that any error in the instruction under review was also present in plaintiff’s Instruction P-1 and therefore plaintiff is in no position to complain of D-3. That is not factually correct. Plaintiff’s instruction followed precisely plaintiff’s testimony. It required a finding that “on or about September 19, 1957, in Amory, Mississippi, plaintiff orally requested the defendant to transport plaintiff in defendant’s automobile from Amory, Mississippi, to plaintiff’s home in Pulaski County, Missouri, and promised defendant at that time that he would pay defendant for so transporting him, and that defendant agreed to do so; and if you further find and believe from all the evidence that on September 20, 1957, plaintiff did in fact pay to defendant the sum of $5.00 to transport plaintiff from Amory, Mississippi, to Pulaski County, Missouri, and that defendant accepted said sum, if any, in payment for so transporting plaintiff * * It is apparent that this instruction did not require a finding of an agreement by plaintiff to pay, or by defendant to accept, the sum of $5.00, which submission of fact was the principal error in Instruction D-3. This contention is ruled adversely to defendant.

Since the judgment must be reversed and the cause remanded for a new trial because of the error in giving Instruction D-3, we deem it unnecessary to rule the contentions of error in regard to the other instructions heretofore mentioned. Counsel for defendant will have the opportunity to re-examine those instructions, and, if it is considered advisable to offer them at another trial, may make such corrections therein as may be considered necessary in view of the attack made thereon by plaintiff. In determining whether a “mere fact” instruction similar to Instruction D-5 should be offered by counsel or given by the court upon another trial, we suggest a consideration of the admonitions contained in Wise v. St. Louis Public Service Company, Mo.Sup., 357 S.W.2d 902, and Grote v. Reed, Mo.Sup., 345 S.W.2d 96 [11]

Reversed and remanded.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. Donald Keith SAWYER, Appellant.
    No. 49557.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Charles C. Hatley, Sp. Asst. Atty. Gen., New Madrid, for respondent.
   HYDE, Judge.

Defendant was convicted of second degree burglary (Sec. 560.070) and sentenced to two years’ imprisonment. Sec. 560.095(2) (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed but has filed no brief so we consider all assignments made in accordance with Supreme Court Rule 27.20, V.A.M.R. (See also Rule 28.02.)

The State’s evidence was that defendant was found in the building of Kohler City Supply Co. in Kohler City, Jefferson County, during the night of January 28, 1962, by its watchman. Defendant was taken by the watchman to a nearby filling station where the State Patrol and Sheriff were called and defendant was turned over to a patrol officer. The watchman found the combination knocked off the safe in the building and a tool wedged in between the door on the top of the safe. Defendant had a bag in his hand which was identified as one boat covers are packed in, kept for sale by the Company. On investigation after the arrest, one of the officers said: “One of the windows on the northeast side of the building, a large window, approximately 20-inches by 20 or more had been -removed, the glass pane had been removed, we found that glass pane on the outside of the roof which come almost flush to the base of that window, also on the outside on the roof we found a new chain saw, a .22 caliber rifle, which was loaded, a over and under .22 and 410 shotgun and a new model 50, 12 gauge shotgun on the roof.”

Defendant’s first assignment of error is “denying the defendant’s motion for a continuance on the ground that the defendant had not been served with a copy of the information filed herein prior to trial of the above cause.”

Supreme Court Rule 25.02, the same as Sec. 545.800, requires the clerk, upon request of the defendant, to make out and deliver to him a copy of the information. All that the record shows is that before the voir dire examination but after a plea of not guilty, defendant’s counsel said “I’d like to object at this time to going to trial on this case as I have not been served a copy of the information as yet.” The court stated: “Your objection comes too late at this time. Overruled.” This rule, as the-statute did, requires a request (no doubt because the indictment or information is required to be filed, Rule 21.01) and ws have held that furnishing a copy is waived by pleading without making a request. State v. Maupin, 196 Mo. 164, 171, 93 S.W. 379; State v. Schmidt, 137 Mo. 266, 269, 38 S.W. 938; State v. Nelson, 132 Mo. 184, 196, 33 S.W. 809, in which earlier cases are cited. These cases all involved the stricter requirement of' an earlier statute (see Sec. 4138, RS 1889) applying to capital cases. The record shows that when defendant’s counsel was appointed the court notified him “that a reasonable time will be allowed in which to prepare a defense”; and on the record herein we find no prejudicial error.

Assignments 2 and 3 complain of the court instructing the prosecuting attorney to prove venue and that the goods mentioned were of some value; and in permitting continual leading of the witnesses. Neither of these assignments “set forth in detail and with particularity” the matters, statements or rulings sought to be reviewed as required by Rule 27.20. However, we note that when the matter of venue and value of goods was suggested by the court, the prosecuting attorney stated he had asked those questions and we find on examining the record that he had previously done so; and he did not- do so again. Therefore, there could be no prejudicial error from this. As to leading questions, we find three objections. Two of the questions concerned the watchman firing his firearm after he had caught the defendant. The third concerned the State Patrol Sergeant’s examination of the premises after the defendant had been taken into custody. The court cautioned the prosecuting attorney against leading after the first and third questions and we agree with the court that the second was not really leading. In any event, approval or disapproval of leading questions is largely discretionary with the trial court and will not constitute reversible error unless discretion is abused. Harrison v. St. Louis-San Francisco Ry. Co., 339 Mo. 821, 99 S.W.2d 841, 845. The claim of error by allowing continual leading is not sustained by the record.

Assignment 4 complains of the court’s correction of Instruction No. 1, authorizing a verdict of conviction, which the motion says first hypothesized a finding that the building was property of Virginia Kohl-er Knoll and was changed to read “the building,of Kohler City Supply Company.” The evidence showed this company was a corporation of which Mrs. Knoll was president. The original instruction is not shown in the record but it is shown that the correction was made during the reading of the instruction to the jury. This was before the argument of counsel and the final submission of the case to the jury. Courts may withdraw or correct an instruction, and it is the duty of the court to do so, at any time during the trial, especially before the case has been submitted, if upon reflection the same is considered to have been erroneously given. State v. Taylor, 293 Mo. 210, 238 S.W. 489, 494; State v. Shapiro, 216 Mo. 359, 115 S.W. 1022, 1024, 1025. Furthermore, we have held: “It was not necessary to allege or prove the legal status of the owner of the goods stolen.” State v. Long, Mo.Sup., 336 S.W.2d 378, 379, and cases cited.

Assignment 5 claims error in failing to declare a. mistrial because of “the comment of the Assistant Prosecuting Attorney in his summing up to the Jury that the Defendant had failed to testify, or words to that effect.” All that is shown by the record is the following: “Mr. Sheehan: About the defendant, we won’t consider that in any detail at all about the defendant testifying as he’s told to testify.

“Mr. Furtaw: If your honor please, I object to any remarks by the Prosecuting Attorney about the defendant’s failure to testify and ask the jury be discharged.
“Mr. Sheehan: I did not say that.
“Mr. Furtaw: I ask the jury be discharged.
“The Court: Well, you used the wrong word you was talking about your witness wasn’t you ?
“Mr. Sheehan: That’s who I was talking about, yes, sir.
“The Court: Just a misuse of words, no intent here.”

From this it appears that the prosecuting attorney was talking about someone testifying as he was told to testify ¡rather than about anyone failing to testify; and the court made this clear. Obviously, this must have been in answer to some claim or statement made by defendant’s attorney about some witness for the state because no evidence was offered by the defense. Sec. 546.270 only prohibits referring to accused not availing himself of his right to testify. For cases construing certain arguments as not violating this prohibition of the statute, see State v. Michael, Mo.Sup., 361 S.W.2d 664; State v. Hayzlett, Mo.Sup., 265 S.W.2d 321; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43; State v. Janes, 318 Mo. 525, 1 S.W.2d 137. Our conclusion is no violation of the prohibition of Sec. 546.270 was shown.

We have examined the .record as required by our Rules 28.02 and 28.08 and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


author: COIL, Commissioner.

text:
    STATE of Missouri, at the Relation of the CITY OF NEOSHO, Newton County, Missouri, Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Appellant.
    No. 49447.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Missouri Public Service Commission, for appellant.
    C. Wallace Walter, Buell F. Weathers, Mann, Walter, Powell, Burkart & Weathers, Springfield, amicus curiae, for St. Louis-San Francisco Ry. Co.
   COIL, Commissioner.

The Missouri Public Service Commission has appealed from a judgment holding a portion of its order relating to the apportionment of the cost of an underpass unreasonable and unlawful and further adjudging all other portions of the order reasonable and lawful. As a result of a complaint and a preliminary investigation by a Commission employee of the place where McCord Street crosses the single track of the St. Louis-San Francisco Railway Company at grade in Neosho, the Commission ordered a formal hearing. A hearing was held in Neosho on November 18, 1960, and in Jefferson City on February 16-17, 1961. At both, many witnesses testified and considerable evidence was adduced upon the various issues then involved. Thereafter on May 31, 1961, the Commission issued its report and order in which it reached the conclusion that the grade crossing should be permanently discontinued and that if a crossing was to exist at that point, it should be by underpass; and the Commission advised the parties that if they desired to be heard further “as to the final allocations and costs of the improvement the matter will be set for further hearing and the Railway Company will be required to submit detailed plans and state the final type of crossing chosen.” The Commission’s order required the Railway to submit within ninety days more detailed plans and specifications for an underpass of the type therein described and further that 75 per cent of the costs of whatever type of underpass was finally chosen should be borne by the City and 25 per cent by the Railway. The Commission retained jurisdiction for further hearing or ruling as the circumstances might indicate.

The City, apparently not wishing any “further hearing * * * as to the final allocations and costs of the improvement,” filed its motion for rehearing which was overruled and thereafter sought review of the order pursuant to the provisions of Section 386.510.

The circuit court granted the Railway leave to intervene, reviewed the record and adjudged that that portion of the Commission’s order which provided for the apportionment of costs was unreasonable and unlawful and that all other parts of the order were lawful and reasonable.

The Commission only has appealed. Railway, with leave, has filed an ami-cus curiae brief. Respondent City has filed no brief in this court, apparently choosing to stand upon its motion to dismiss Commission’s appeal for alleged failure to comply with S.C. Rule 83.05(e), V.A.M.R.; respondent’s contention being that appellant failed under its points relied on to state what actions or rulings of the court were claimed to be erroneous and why the court was wrong in any ruling sought to be reviewed. Taking into account the type of proceeding involved and examining appellant’s points and authorities in the light thereof and in view of appellant’s suggested addition to its brief complying in full with the requirements of the rule, respondent’s motion to dismiss is overruled.

Appellant contends that the sole issue on this appeal is whether the apportionment of costs, 75 per cent to the City and 25 per cent ■to the Railway, is reasonable and lawful under the evidence adduced. While the City made other contentions in its motion for rehearing, as well as in its'brief filed with the Commission prior to the report and order, and while the appeal is from the entire judgment (including the part of the judgment which held portions of the order reasonable and lawful), yet, as noted, appellant in its brief attacks only that portion of the judgment relating to apportionment of costs. Inasmuch as respondent has filed no brief, we proceed on the assumption that the City acquiesces in appellant’s stated position that the sole issue for present decision is the reasonableness and lawfulness of the manner in which the Commission apportioned the cost of the proposed underpass.

The record at the time of the appeal affirmatively showed the amount in dispute (difference between the portion of the cost City contended it should pay and 75 per cent of the cost it was ordered to pay) exceeded $15,000 and, consequently, jurisdiction is in this court.

The railroad track in question enters the City at the north and curves generally west. The track runs southwest at the point where McCord, an east-west street, crosses it. People had crossed the track there for a long time; in years past for the purpose of picnicking in the area of a spring which was located northwest of the track. It was conceded that the crossing was hazardous and that the danger created thereby should be eliminated. The Railway took the position that the crossing should be closed and the City that some type of underpass should be established. The Commission entered its temporary order closing the crossing immediately after the first hearing and it is reasonable to assume that the crossing has remained closed ever since.

An examination of the record before the Commission leaves no doubt that the idea and desire for an underpass originated with Mr. Joe Roark, who planned to and did develop a subdivision called Western Hills Addition in the area immediately northwest of Railway’s track. The subdivision, begun .in 1954, as completed, consisted of 169 lots priced at $2,000 to $2,500 facing on several curving streets. It was improved with sewers and utilities. There have been eight houses built,, seven of which were occupied 'at the time of the hearing. Most, probably seven, of those houses were located at about the center (east to west) of the subdivision. They ranged in price from $13,000 to $28,-000. There is an entrance to Western Hills off U. S. Highway 71 which, at the place of entrance, runs in a northwest direction. Immediately across Highway 71 is the entrance to another subdivision known as Greenwood in which forty houses had been .completed and most of them were occupied. They ranged in price from $11,000 to $14,-000. There was some evidence that certain persons were purchasing unplatted property immediately north of Western Hills Addition.

One traveling from the business district of Neosho to.Western Hills need not use the McCord crossing but can proceed on city streets west to Highway 71, then northwest on 71 through an underpass under the Frisco track in question to the entrance to Western Hills; or one could, from the same downtown location, travel north to Adams Street, thence through an underpass under the same Frisco track, thence north and west to Highway 71, and thence southwest to the entrance to Western Hills. There was evidence that from a designated downtown corner to the entrance to Western Hills was only two tenths of a mile farther via the highway underpass than via the McCord Street crossing. The entrance to Western Hills, of course, was at the western end of the subdivision and, consequently, from the same downtown location to the easternmost part of Western Hills would be considerably closer via the McCord Street crossing. From a designated downtown location to the seven houses located near the subdivision center it would be about one-half mile via the McCord crossing as opposed to one mile via the Highway 71 underpass. The Adams Street underpass (measured on the Railway’s track) was 1,-584 feet north of the McCord Street crossing and the Highway 71 underpass was one-half mile southwest of the McCord Street crossing.

There was evidence that if a road was constructed from the eastern end of Western Hills north to Ried Road, people who might reside in the subdivision would have a close route to and from downtown via the Adams Street underpass. There was a dispute as to the general usability of the Adams Street underpass, the roadway being narrow and apparently the sight distances were not too good. But there was also evidence that the Adams Street underpass could be made safe by a straightening of City’s street approaches.

The City’s present limits did not extend any great distance either north or west of Western Hills. City adduced evidence that its council had determined there should be a safe crossing at McCord Street, preferably an underpass, in order that the City might develop in that direction; that the northwest section of the City was the only available section where sewage facilities and utilities had been installed; that a high school was contemplated in the area north of the subdivision; that it would be desirable for emergency vehicles to have access to the northwest section via a McCord Street crossing.

Mr. Roark’s evidence indicated that his subdivision had been slow in developing because of no access via McCord Street, even though the record contains no satisfactory explanation as to why the subdivision (Greenwood) immediately across the highway from Western Hills apparently had developed comparatively rapidly.

It is fair to say that the record before the Commission substantially supported the conclusions that the permanent closing of the McCord Street crossing would, of course, remove the danger to the traveling public; that it would be convenient to present and future residents of Western Hills as well as to others living in the northwest section of the City to have a safe crossing at McCord Street (although we note that if a crossing was of benefit to any substantial number of persons other than the residents of Western Hills, the main street in Western Hills would become a thoroughfare) ; that it would be of benefit to the City in its general northwestern development to have a safe crossing at McCord Street; and that while a McCord Street crossing would be convenient and desirable,, there was no necessity for it in that present and future residents of Western Hills, and of other northwest portions of the City had existing access to and from downtown Neosho through two underpasses, the use of which required relatively little additional-travel. The City apparently recognized that the crossing at McCord Street, at least the underpass which it desired, was not a necessity because it requested the Commission-to so frame its final order as to give the City a discretion as to whether to perform its designated part in the building of such an underpass, i. e., as we understand, give the City the choice to acquiesce in closing the McCord Street crossing or participate-as finally directed in providing an underpass.

The Commission recognized the unusual' fact situation which existed in this case and in its conclusions pointed out that because of the reasonable availability of other underpasses, the Railway should not be required to bear a great portion of the cost of another underpass, and the Commission explained that the apportionment of cost made in this case, 75 per cent to City and 25 per cent to Railway, was a departure from the Commission’s usual practice to apportion a greater percentage of the costs of an underpass to railroad companies; but that the facts in evidence indicated the desirability of the apportionment made.

The review of the evidence heretofore makes it apparent to us that the portion of the Commission’s order here in question was supported by competent and substantial evidence upon the whole record and was therefore reasonable. State ex rel. Chicago, R. I. & P. R. Co. v. Public Service Commission, Mo., 312 S.W.2d 791, 796 [3, 4]. The order was made in the lawful exercise of specific statutory authority granted to the Commission by Section 389.640 which, inter alia, vests in the Commission exclusive power to apportion underpass costs between a railroad and a city, and was therefore lawful. State ex rel. Chicago, B. & Q. R. Co. v. Public Service Commission, Mo., 334 S.W.2d 54, 57 [1-3].

In its brief before the Commission, the City took the position that this court had in effect prescribed a formula for determining the apportionment of costs in all railroad underpass cases. In support of that contention, City seized upon this language from State ex rel. Alton R. Co. v. Public Service Commission, 334 Mo. 995, 70 S.W.2d 57, 60 [5-8]: “The true basis of apportionment of the cost has been declared by this court to be the extent to which the presence of the railroad at the place enhances the cost of a necessary improvement. State ex rel. Kansas City Terminal R. Co. v. Public Service Comm., 308 Mo. 359, 272 S.W. 957. If the presence of the railroad is the sole cause of an improvement necessary for the public safety, it may be required to pay the entire cost. Chicago, Rock Island & Pacific Ry. Co. v. Public Service Comm., 315 Mo. 1108, 287 S.W. 617.”

As demonstrated by that case and by cases prior to and following the cited case, this court has not attempted to fix (even if it lawfully could) an inflexible formula for cost apportionment, but, on the contrary, has indicated that the facts in a given case determine the apportionment to be made within the Commission’s discretion. See State ex rel. and to Use of Kansas City Southern R. Co. v. Public Service Commission, 325 Mo. 862, 30 S.W.2d 112, 115 [2]; State ex rel. Wabash R. Co. v. Public Service Commission, 340 Mo. 225, 100 S.W.2d 522, 530, 531, 109 A.L.R. 754.

That portion of the judgment of the court below, adjudging “ORDERED. 2” of the Commission’s order, dated May 31, 1961, in Case No. 14,555, unreasonable and unlawful, is reversed and the case is remanded for further proceedings consistent with this opinion.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All of the judges of the division concur.

STORCKMAN, Special Judge, concurs.

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


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Marcus WESTFALL, Appellant.
    No. 49204.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Sp. Asst. Atty. Gen., St. Joseph, for respondent.
   HOUSER, Commissioner.

Under § 563.160, V.A.M.S., defendant was charged with and convicted of indulging in a degrading, lewd, immoral and vicious practice with a minor, a ten year old boy, by forcing his penis into the rectum of the minor. The jury assessed his punishment at four years in the penitentiary. Defendant appealed from the judgment and sentence.

The victim testified that while walking home he fell and 'sprained his ankle in front of defendant’s house; that defendant and a boy identified as Elmer Williams ran out of the house, picked him up, carried him into defendant’s house and took him into the bedroom; that defendant pulled the victim’s blue jean pants down to his ankles; that Elmer held the victim’s hand while defendant stuck his penis in the victim’s behind or “rear end”; that he felt defendant putting “his thing” into his rectum; that defendant offered him 25¡¡S and told him not to tell his mother or the police; that he ran out of the house, bleeding, and across the street for help; that the police were called and the victim reported what happened to the police, who took him to the hospital. The policeman called corroborated the bleeding; the report of the incident; that the boy named the defendant as the one who did it, and stated that he took the boy to the hospital. The surgical resident at the hospital testified that the boy was crying, in pain, and stated that an older boy had stuck his penis into the boy’s rectum. Examination revealed lacerations extending radially around the rectum as though something had been pushed in. The mucosa had “given” or split. The doctor testified that the type of injury the boy sustained could have been caused by a man’s penis.

Defendant denied the occurrence, claimed he was elsewhere when it happened, and had evidence to support his alibi. Elmer Williams denied the incident, and claimed he did not see the victim that day until after the police picked him up.

Defendant having filed no brief we review all specifications of error properly preserved in his motion for new trial, Sup. Ct. Rule 27.20, V.A.M.R., and the portions of the record required by Sup.Ct. Rule 28.-02, V.A.M.R.

“1. The verdict of the jury subjects defendant to cruel and unjust punishment.” This assignment is too general and is insufficient to warrant appellate review, under Sup.Ct. Rule 27.20. State v. Archer, Mo.Sup., 328 S.W.2d 661; State v. Pruett, Mo.Sup., 342 S.W.2d 943. Nevertheless, we restate the rule that punishment assessed against a defendant within the limits fixed by statute cannot be held to be cruel or unusual, State v. Archer, supra, 328 S.W.2d, l. c. 666, and cases cited, or unjust. The penalty prescribed by § 563.-160 is imprisonment in the penitentiary for a period not exceeding five years, or imprisonment in the county jail for a period not exceeding one year, or a fine in a sum not to exceed $500 or by both such fine and imprisonment. The jury having assessed the punishment within the limits prescribed, it cannot be adjudged cruel or unjust.

“2. The instructions as given by the Court, and each of them, do not fairly and impartially set forth and state the law of the case. The Court also failed to give the jury an instruction covering the legal effect, and defining, defendant’s alibi.” The first sentence is too general to preserve anything for appellate review under Sup.Ct. Rule 27.20. State v. James, Mo.Sup., 347 S.W.2d 211, 217[16], The second sentence states no ground for interference. In the absence of a request for the giving of an instruction on the subject of alibi a trial court cannot be convicted of error in failing to give such an instruction. State v. Hutchin, Mo.Sup., 353 S.W.2d 701; State v. White, Mo.Sup., 301 S.W.2d 827. The record does not show that defendant requested or offered any instruction on the subject of alibi.

“3. There was not sufficient evidence on which a jury could base a judgment of guilty.” In determining this question we consider as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom, and evidence to the contrary is rejected. State v. Reagan, Mo.Sup., 328 S.W.2d 26, 29[5]. The recital of the state’s evidence in the second paragraph of this opinion clearly demonstrates that there was ample evidence upon which to base a finding that defendant was guilty of indulging in a detestably degrading, lewd, immoral and vicious practice with a minor.

“4. The verdict of the jury was against the weight of the evidence.” This assignment is too general to preserve anything for appellate review. State v. Gray, Mo.Sup., 360 S.W.2d 642.

The information is sufficient. The verdict is responsive to the information, and in proper form. Defendant was represented by counsel. The punishment is authorized by law, § 563.160; allocution was granted; the judgment is proper in form and substance, and the sentence was duly imposed. The judgment is affirmed.

COIL and HOLMAN, CC., concur,

PER CURIAM.

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

All of the Judges concur.


text:
    Caroline RENDLEN, Plaintiff, v. Robert T. RENDLEN et al., Defendants. Raymond G. RENDLEN, Jr., et al., Plaintiffs, v. Robert T. RENDLEN et al., Defendants. Caroline RENDLEN, (Plaintiff) Respondent, v. Robert T. RENDLEN, (Defendant) Appellant.
    No. 49626.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.
    William B. Spaun, Hannibal, for appellant.
    Ely & Hibbard, Hannibal, Gustave H. Hoelscher, Richmond, Ind., of counsel, for respondent.
   BARRETT, Commissioner.

This appeal involves one phase of the marital and financial difficulties of Robert and Caroline Rendlen, who, from August 31, 1940 to August 30, 1960, were husband and wife. Initially there were two separate suits in Marion County, one by Caroline, probably an equitable garnishment, against Robert and his present wife La-Verne and his brother Raymond in his capacity as executor of the will of their mother Nathaline Rendlen. The second suit was by Raymond as executor against Robert, LaVerne and Caroline and was for the purpose of finally settling and distributing Nathaline’s estate. These two’ suits were consolidated and there were numerous answers, interpleas and motions, the first 94 pages of the record consist of these pleadings. But in view of Robert’s brief upon this appeal it is not necessary to even summarize the various issues raised by these numerous pleadings. On May 3, 1959, in circumstances to be noted, Robert executed two documents in one of which he assigned to his then wife, Caroline, one half of his interest in his mother’s estate, and in the other conveyed to her a one-fourth interest in his grandmother’s property known as 115-117 N. Main Street in Hannibal. At the same time, and in consideration of his executing these documents, Caroline dismissed an action for divorce, together with a restraining order, then pending against Robert in St. Louis County. Upon the trial of these consolidated actions the court, for the most part, found the issues for Caroline and against Robert. But upon this appeal Robert briefs and argues but one question — whether the assignment and conveyance from him to Caroline were the result of undue influence. It is, therefore, necessary to relate only such of the facts and circumstances as bear upon this single issue, noting in passing, however, that the court has painstakingly considered all the pleadings, the evidence and the exhibits.

Caroline, the daughter of Judge Gustave H. Hoelscher, for thirty-eight years a circuit judge, and Robert were married at Caroline’s home in Richmond, Indiana, August 30, 1940. Robert and Caroline now have two children, Clare Ellen, 15, and Robin T., 12. When they were first married Robert was employed by GMAC and they lived in Dyersburg, Tennessee, Decatur, Illinois, and Detroit, Michigan. In 1946 they moved to Hannibal and Robert was in business with his father in the Rendlen Motor Company, a Chevrolet agency. Robert may have been engaged in some other enterprises also, and in the meantime they may have lived elsewhere, but he says that when first employed by the Rendlen Motor Company he had a salary of $300 a month, plus bonuses, and by 1949 was making $18,000 to $20,000 a year. Robert was a very heavy drinker, by his own admission, since his father’s death in 1954, he usually drank from a pint to a fifth of liquor a day, sometimes more. He has always had the reputation, however, of being able “to carry his liquor,” and he says that he was seldom drunk, — “I would not say drunk but certainly feeling no pain.” But after his father’s death, Robert managed the Rend-len Motor Company and, in addition, had a substantial interest in and income from the estates of his mother and grandmother.

It is not necessary to set forth the details, it is sufficient to say, probably by reason of Robert’s “poor management” or lack of judgment, that after 1951 the Rendlen Motor Company lost money and finally lost its Chevrolet franchise. In 1956 the Rend-lens moved to St. Louis County and Robert worked for several concerns, formed the R & F Machinery Company, “but it didn’t pan out.” They lived beyond their means, finally mortgaging the household furniture to a small loan company for a loan of $1,150 and incurred other debts. And finally their personal relationship deteriorated, Robert became “surly and overbearing and unpleasant,” told Caroline to take the children and go home. Near the first of April 1959, he claimed to have a job with fine prospects in Florida and took Caroline to Tampa on what he said was a “company expense trip” to buy a house, and he did pay $750 down on some property. Caroline was not then aware of the fact but, through an assignment against his inheritance, Robert had obtained a loan of $5,000 from a St. Louis County bank.

They returned to St. Louis County and Robert flew on to Cincinnati. It was then that the climax came, “checks were bouncing right and left,” the people Robert had dealfe with in Florida and elsewhere were demanding that he meet his obligations. Caroline consulted the Rendlen lawyers in Hannibal, Robert’s second cousins, and his brother Raymond, and for the first time discovered and understood Robert’s true financial situation, including the fact that l|e was rapidly dissipating his inheritance. She returned to St. Louis County and employed John F. Nangle of Clayton to institute a suit for divorce from Robert, at the same time enjoining him from transferring or encumbering any interest he might have in any real or personal property. Robert’s brother Raymond advanced $100 and on April 28, the day summons was served on Robert, Caroline took the children and returned to her father’s home in Richmond, where they have since resided.

The next day Robert called Caroline in Richmond, he was “displeased over my leaving without discussing the divorce.” There were several telephone calls, he first wanted her to return to Kirkwood and bring the children, and finally it was agreed that “I should return and discuss things and that my father should come with me — that was by his request. He wanted someone reasonable to discuss this with.” And in a day or so Judge Hoelscher and Caroline left Richmond, stopping first in Hannibal. There, after talking with Raymond and the Rendlen law firm, Judge Hoelscher was “shocked” to learn of Robert’s true financial condition, that he had lost at least $100,-000 in the Rendlen Motor Company, and was rapidly dissipating his interest in the estates of his mother and grandmother. Judge Hoelscher examined some of the records in the Probate Court, obtained from Branham Rendlen a legal description of the Main Street property and that night in Raymond’s home drafted in longhand the documents involved here, — the assignment from Robert to Caroline of the interest in his mother’s estate and the conveyance to her of an interest in the Main Street property. He then called Robert and made an appointment to see him in St. Louis County the following day.

Robert had made a reservation for Caroline and her father at a motel, and the next day, May 2, 1959, after checking in, they met Robert at their former residence about eleven o’clock. There were several conferences or meetings but the upshot of the matter was that, on May 3, Robert called a notary public and executed the documents Judge Hoelscher had prepared. Caroline in turn executed a dismissal of her divorce suit, which included, of course, the injunction. Judge Hoelscher put the executed papers in his pocket, at Robert’s request they were not to be delivered until the following day, and Bob, “perfectly happy,” said “ ‘Well, now, let’s have a little drink, a social drink, ’ and we did.” In the meanwhile Robert was to consult his friend Irwin, and perhaps others. The next morning Judge Hoelscher and Caroline appeared at Nangle’s office, Robert, as he had announced the previous day, was not present. Robert’s lawyer, Don Flint, was-there, John Mitchell, Clayton banker, was there, and of course Mr. Nangle. Judge Hoelscher produced the signed documents,. Nangle examined them, and at Flint’s request they went across the hall to his office and he made copies of the assignment and conveyance. On May 5, in accordance with her agreement, Caroline’s lawyer filed a dismissal of the divorce action. In the afternoon of May 3, by prearrangement with Robert, they went to the house again,. Caroline to get a few things and “to take-care of closing the house” (it already had' been sold) and make arrangements to send' Robert’s clothes wherever he directed. Robert had a job in Florida, so he said, “and he was going to make good and he was in high hopes of making good; in fact,, he convinced my father that he would too,, and we parted the best of friends.” Robert produced a roll of bills, gave her $200 to-replace a check that had “bounced” and Judge Hoelscher and Caroline returned to-Richmond.

Before proceeding directly to the problem involved but to place it in context, it is necessary to briefly round out the story. Robert did not proceed immediately to Florida, he remained in Missouri a few days, took a vacation on a lake in Kentucky and then went on to Florida. And his stay in Florida did not turn out well, eventually there were bad checks and numerous other problems. He was to return to St. Louis on a certain plane but failed to show up at the appointed time. By July 27 it was necessary that •someone make a trip to Florida to extricate Robert from his difficulties, he was returned to Hannibal and committed to Fulton as a mentally ill person in need of treatment. While there he and Caroline exchanged several letters, at first he told her of his plans for “starting a completely new life from scratch,” said that he had quit drinking and intended eventually to move to Florida. But by the time he was to be released from the hospital wrote (June 4) Caroline, “I also feel that your ‘moral support’ is too little and too late to be of any help to me. My success and happiness therefore must be of my own doing.” In June 1960 Caroline instituted an action for divorce against Robert in Wayne County, Indiana. The summons was returnable on August 17, on that day a default was entered, and on August 30, 1960, Caroline was given a final ■decree of divorce and custody of the children. On August 7 Robert wrote the clerk of the Indiana court asking for a “certification of divorce proceedings,” and on August 18, in Corinth, Mississippi, was married to LaVerne and they were residing in Joplin when this case was tried in May 1962.

But in this background, as stated, there is now but a single question. Upon this appeal Robert claims that the assignment and conveyance were procured by undue influence. The totality of his argument is best summarized by this quotation from his brief: “The action of the plaintiff and her father, a learned Circuit Judge, acting in a ■confidential relationship with defendant Robert T. Rendlen, and by their carefully laid plan to elicit the support of his family, his attorney, and his close banking advisor, taking advantage of his drinking, pressures ■on him of a financial nature, pressure of his domestic difficulties, his natural love for his children, and his desire for a reconciliation were such pressures and undue influence as to destroy the free will of the defendant, and substituted the will of the plaintiff and her father, and the assignments and- conveyances made at such time should be vacated and set aside.”

It is not necessary to consider the record in detail and analyze the evidence with respect to each of these assertions. Neither is it necessary to review the cases and literature, it is sufficient to say in passing that as a practical method of resolving serious marital difficulties husband and wife have the capacity to make a separation agreement, including provision for continued separation or in consideration of the dismissal of a pending action for divorce. 17A Am.Jur., Divorce & Separation, Secs. 883, 885, 889-891, 893, pp. 71-81. Needless to say, a separation agreement procured by the undue influence of either of the parties is subject to being set aside. 17A Am. Jur. Sec. 898, p. 85; 26 Am.Jur., Husband & Wife, Sec. 270, p. 878; 41 C.J.S. Husband & Wife § 162, p. 643; Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557; 2 Restatement, Contracts, Sec. 497; Peine v. Sater, Mo., 289 S.W.2d 101. And a husband and wife living together may be in a confidential relationship, but separated with a divorce action and an injunction proceeding pending they are antagonists. 17A Am.Jur. Sec. 898, p. 85. Robert now limits the authority of his lawyer, Don Flint, nevertheless both Caroline and Robert had other counsel, and of course Caroline had her father, and even though he may not have made the most of his legal counsel, the fact that he was represented by a lawyer and had other outside advice indicates that there was no confidential relationship when these documents were executed. 17A Am.Jur. Sec. 898, p. 86. In this connection there is no evidence of a carefully laid plan “to elicit the support of his family, his lawyer.” By the time this case came on for trial Robert was estranged from all his family and friends in Hannibal and did not turn to any of them for advice. As he said of his brother Raymond, “ever since I left Hannibal * * * our relations were very strained and there were many things including the distribution of the estate, that we did not see eye to eye.” It may be that some of his family and friends were dogmatic and, in fact, had but little sympathetic insight into Robert’s basic problems, but they were not part of a conspiracy and violated no personal relationship with him. There was talk of a reconciliation but is not necessary to record the details, there were no overtures on Robert’s part, his idea was that “the whole matter was left to her discretion.”

Even as to the basic issue of undue influence it is not necessary to relate the circumstances and point out the permissible inferences. Judge Hoelscher was shocked when he learned the facts and he said, “Yes, it looked to me like this money was going away fast and I thought I had better get something for my daughter and the children while the getting was good. This was the only chance that I had and so I went to Bob and put it up to him.” As to the assignment and conveyance he said, “I drew up those papers on my own accord without any suggestion from anybody else.” As to the negotiations and the final signing of the documents, he said Caroline and Robert first talked alone in an adjoining room and then they all started talking about settling the divorce and “he wanted the suit dismissed.” In response Judge Hoel-scher took the papers from his pocket and said, “Here is a deed for your one-fourth interest in the property in Hannibal and here is an assignment for a one-half interest in your mother’s estate. Now you look at them and read them over. What we want is a property settlement. We think this is fair and it is about one half of the property in these two estates and if you will give Carol that property she will dismiss her suit against you.” Robert read the papers, threw them on the table and said, “I will not sign them.” Judge Hoel-scher replied, “All right that’s your business if you won’t sign them.” Robert proposed that the property be put in a trust for the benefit of the children. That proposal was rejected and again Robert said that he would not sign the judge’s papers. Whereupon the judge announced that they would go home, and put his hat on and started out the door. But Robert suggested a further conference and Caroline and her father went to dinner and returned that evening. In the meantime Robert had talked' to a banker friend and was ready to sign the papers. He called a notary, had him come to the house and the notary acknowledged the conveyance.

Robert’s version of the execution of these documents was not too much different from that of his wife and her father. He said that during the afternoon “We were discussing, of course, the settlement, that is, the assignment and dropping of the divorce suit.” He said that there was no definite agreement as to a reconciliation and now he places this emphasis upon the transaction and its circumstances: “Well, I had this choice: I either signed them or they went on with the divorce.” Admittedly, he understood the nature of the papers he was signing and their effect, and he said, “I understood one thing — that it meant the dropping of the divorce action.” As to the pressures, he had this to say, “Well, there was pressure practically of every sort. This divorce situation occurred. When the children were taken from the State of Missouri, the estate was in such shape that I could get no money from the estate. (Emphasis supplied.) It had been in probate, I thought, way too long and I was under pressure from the forming of the new company trying to get it going on a shoe-string. * * * [A]nd all these pressures were quite great believe me.” He now says that he was “then” interested in getting his family back together and that was the reason he signed the documents, — “at that time,” he said, “If he would have asked for the whole thing he could have gotten it.”

Judge Hoelscher and Caroline were not of course wholly unmindful of these pressures, and the judge was not unaware of the role he had 'to play in concluding the matter. As to his drafting of the documents and their provisions and as to the presence of Robert’s lawyer in the negotiations, he had this to say: “He could be there. He was Bob’s attorney. I was presenting my proposition. He could consult and advise with Bob. I knew how to carry out my end of it.” And he had this insight into Bob’s changing his mind and finally signing the documents on May 3: “He wanted this suit dismissed so he could get some more money on his assignment to the Clayton Bank of his interest in the personal estate of his grandmother. That’s why he signed the assignment and the deed and for no other reason, so that he could go ahead and get more money. (And, it may be interpolated, the following day he got an additional $2,000 from the bank.) * * * I know what he wanted us there for, — he was broke — he didn’t have a dime — Bob Rendlen would never have telephoned me and Carol to come out there unless it was to his advantage. He needed money and he wanted us to come out so that he could get rid of that injunction in the divorce suit so that he could get his mitts on more money.”

Obviously there were pressures and no doubt “they were quite great,” and his antagonists in bargaining were aware of them. And it may be that such pressures had a large part in compelling action, may even have resulted in a bad bargain (Hollocher v. Hollocher, 62 Mo. 267, 272), and in that sense constitute some form of influence, but they do not comprise the pressures of undue influence that in equity demand the setting aside of a transaction. Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; Farrow v. Farrow, Mo., 277 S.W.2d 532; Murray v. Murray, Mo., 293 S.W.2d 436; Walton v. Van Camp, Mo., 283 S.W.2d 493. And, accordingly, the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Delbert Lee CROW, Appellant.
    Nos. 49516, 49770.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.
    Graves & Graves, Neosho, for appellant.

      Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Special Asst. Atty. Gen., Jefferson City, Stewart E. Tatum, Elroy S. Thomas, Joplin, for respondent.
   STORCKMAN, Judge.

These two appeals from convictions of burglary and stealing are closely related, and the facts and the legal questions presented in each case are identical. They were submitted together and are consolidated for purposes of the opinion. The defendant signed a written confession covering both offenses. No question is raised as to the sufficiency of the evidence to sustain the convictions nor as to any trial error. The essential question for decision is whether the defendant is entitled to immunity from prosecution in these two criminal cases by reason of the fact that he and his brother furnished information to the sheriff of the county with respect to a number of other crimes. The facts relating to the commission and solution of the two crimes here involved are covered in large part by the defendant’s written confession which was introduced in evidence without objection of any kind.

The defendant Delbert Lee Crow was thirty-two years old in 1954, was unmarried, and lived with his parents at Carthage, Missouri. On May 27, 1954, he left home between 10 and 11 p. m. and drove his 1947 four-door Buick automobile to Kirk’s Package Liquor Store, 819 West Seventh Street, in Joplin, Missouri, which had been closed for the night at about 8:30 p. m. To the rear of the liquor store was a garage owned and operated by Carl R. Shadday. The defendant first broke into the garage and stole a large number of tools, some of which he used to break into the package liquor store. He stole 17 or 18 cases of whiskey from the liquor store together with a quantity of cigarettes, worth in the aggregate about $2,000. At about 4 a. m. he finished loading the liquor, cigarettes, and tools into his car and started towards Carthage. At-a place on Highway 96, about 2Y2 miles east of Highway 43, he undertook to unload and hide some of the cases of the liquor in a field. While so engaged at about 4:40 a. m. he was apprehended by members of the Missouri Highway Patrol who were cruising the area in a patrol car.

The defendant readily admitted that the whiskey was stolen and he was taken with his cargo of loot to the Joplin city jail. The defendant permitted police officers to search his car and authorized them to return the stolen property to its owners which was done about midmorning shortly after the burglaries and thefts were discovered. The defendant was charged in separate in-formations with the offenses of burglarizing and stealing from the liquor store and the garage. The information charging the burglary of and stealing from Kirk’s Package Liquor Store became Case No. 9979 in the Circuit Court of Jasper County and is our Appeal No. 49,516. The information charging the burglary of and stealing from Shadday’s garage became Case No. 9977 in the Circuit Court of Jasper County and is our Appeal No. 49,770.

The defendant was admitted to bail in both cases. While on bond and before the trial of either case, he and his brother Glen were arrested in the State of Oregon where they were convicted and sentenced to a term of imprisonment in the Oregon State Penitentiary. While the defendant and Glen were being held in the Jackson County jail at Medford, Oregon, Glen communicated with George Hickam, the sheriff of Jasper County, and indicated that he and his brother “wanted to talk”. Sheriff Hickam and Sheriff Hendricks of Greene County on their own behalf, and as representatives of sheriffs from 17 counties in Southwest Missouri, went to Medford, Oregon, and talked to the Crow brothers on or about July 25, 1955. The defendant and his brother gave the sheriffs information which cleared up 37 unsolved crimes exclusive of those which were the subject of the two prosecutions then pending in Jasper County. A detainer which had been lodged with the Oregon prison officials was withdrawn and upon their release the defendant and his brother voluntarily returned to Missouri where the defendant was arrested and held for trial on the pending charges of burglarizing and stealing from the liquor store and the garage.

Prior to the trial of the liquor store case, the defendant filed a motion to dismiss the information but no evidence was offered and it was overruled. At the trial he filed a motion for acquittal on the same theory which was that he was entitled to immunity from prosecution by reason of the information given the sheriff. Evidence was heard on this issue by the court out of the presence of the jury and the motion was denied. The case was then submitted to the jury and the defendant was found guilty. Since the defendant was charged under the Habitual Criminal Act, the court heard evidence and found that he had three previous convictions. On the liquor store conviction, Circuit Court No. 9979, our No. 49,-516, the court sentenced the defendant to imprisonment for a term of ten years for burglary and five years for stealing; the sentences were ordered to run concurrently.

Thereafter in Circuit Court Case No. 9977 (the Shadday garage prosecution) which is our Appeal No. 49,770 the parties filed a stipulation waiving a jury trial and submitting the issues to the court on the evidence adduced in Case No. 9979 and certain other facts recited in the stipulation. The court found the defendant guilty and rendered judgment and sentence that he be imprisoned for a term of five years for burglary and three years for stealing. The sentences were ordered to run concurrently with each other and also concurrently with the sentences in Case No. 9979.

The sole ground in the motion for a new trial and the only question presented on appeal relates to the defendant’s claim of immunity from prosecution based on overtures made by the sheriff of Jasper County in connection with the information furnished by the defendant and his brother at the Medford conference.

In his brief the defendant cites only five cases, four of which are from other jurisdictions. These cases do not contribute anything persuasive to the decision of the immunity issue. In Turnage v. State, 134 Miss. 431, 99 So. 9, Turnage testified on behalf of the defense at the separate trial of a codefendant. At his own trial Turn-age claimed immunity to prosecution under a state statute which provided that no person should be excused from testifying in a prosecution for violation of the intoxicating liquor laws on the ground of self-incrimination, but that no such person should be prosecuted as a result of so testifying. The court held the only persons entitled to immunity under the statute were those placed on the stand by the state. This state has similar statutes relating to specific subjects which authorize a grant of immunity to an offender in order to obtain his testimony on behalf of the state in the prosecution or investigation of criminal activities. See State ex rel. North v. Kirtley, Mo., 327 S.W.2d 166, 170. Ex parte Jackson, 95 Tex.Cr.R. 200, 253 S.W. 287, 28 A.L.R. 1360, holds that a person who has refused to answer questions propounded by a grand jury cannot be imprisoned after the grand jury has adjourned sine die and the court term has ended. It recognizes, however, the right and power of a state to offer immunity to one who may be himself suspected of or charged with crime. In Camron v. State, 32 Tex.Cr.R. 180, 22 S.W. 682, the defendant pleaded in bar an agreement for immunity based on his turning state’s evidence. The court upheld the plea and stated that “on the ground of public policy, it has been uniformly held that a state may contract with a criminal for his exemption from prosecution, if he shall honestly and fairly make a full disclosure of the crime, whether the party testified against is convicted or not.” In State v. Ward, 112 W.Va. 552, 165 S.E. 803, 85 A.L.R. 1175, the defendant relied on a promise of the prosecution to dismiss thirteen remaining indictments if he would plead guilty to one. After he had served the sentence imposed, the state undertook to prosecute the defendant on a charge the same as one of those previously dismissed. The court held the defense good stating: “Promises of immunity from prosecution made to a witness by a prosecuting officer with the consent of the court are justified on the ground of public policy.”

The other case cited by the defendant is State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, in which the defendant was convicted of first-degree murder. He had been previously convicted of murder in Illinois and had served 21 or 22 years of a life sentence in the penitentiary at Chester. He had violated his parole and had come to Missouri where he had lived until he was arrested and charged with a homicide committed in this state. While in custody, he made a written confession which was induced by promises of the sheriff and his deputies to recommend to the prosecuting attorney that the defendant be sent back to the Illinois penitentiary where he had old friends. The confession was held to have been improperly admitted in evidence because it was involuntary in that the promise aroused expectation that the defendant would not be held to answer for the crime charged in Missouri. The opinion states that such a confession to be rendered inadmissible on the ground that it is involuntary “must have been made to a person in authority in consequence of improper influences exerted by him, and, if no threats of harm or promises of worldly advantage were made by such officer, * * * the confession is admissible.” The opinion also holds that: “There is no doubt about the fact that ‘a person in authority’ within the meaning of the above rule would include the sheriff and deputy sheriffs who had the appellant in their custody.” 99 S.W.2d 79. The present cases, however, do not involve the admissibility of evidence.

The state properly asserts that the involuntariness of the confession used at the trial is not involved in this case because it was obtained long prior to the Medford meeting and under circumstances about which there is no complaint. Nothing disclosed by the defendant at Medford was used or offered for use as evidence at the trial of these cases. The defendant seeks to utilize the Medford incident as a defense in bar of the prosecution itself, not as a means of excluding evidence. The defendant’s contention is that he is entitled to immunity from prosecution in these cases because Sheriff Hickam “specifically promised the Defendant immunity from any and all prosecutions for alleged crimes committed in Jasper County prior to July of 1955 if Defendant would give Sheriff Hickam certain information concerning the various alleged crimes previously committed in Jasper County”, and that the defendant and his brother performed their part of the bargain by giving Sheriff Hickam information which solved 37 crimes in Jasper and adjoining counties.

The sheriffs of Jasper and Greene Counties went to Medford in response to a letter from Glen Crow. After Glen and the sheriffs had talked for a while the defendant was brought into the conference. Glen testified in substance that his proposition to the sheriff was that “we’d trade our information to clear up his burglaries, and he’d use his influence to help us”; that if he and his brother furnished the information to clear up the unsolved crimes the sheriff would use his influence to get the pending charges dismissed; that the sheriff advised him that it would be up to the prosecuting attorney’s office whether the charges would be dismissed; that the sheriff did not exactly promise immunity because he stated that he did not run the prosecuting attorney’s office, but the sheriff did assure Glen and the defendant that he had enough influence that the cases would not be prosecuted if he went to the prosecutor and told him that they had cooperated and cleared up some other matters.

The defendant testified that the sheriff stated that he was interested in clearing his books of unsolved crimes; that he told the sheriff that he would not admit to anything as long as any charges were pending, and the sheriff said that he could promise that there would be no prosecution in Jasper County; that at the time Sheriff Hick-am madfe these statements the defendant believed the sheriff had authority to give immunity from prosecution on the two pending charges because the sheriff was a representative of the county elected by the people and was talking in his official capacity as sheriff. Neither the defendant nor Glen talked to the prosecuting attorney of Jasper County. The only person they ever talked to was the sheriff.

Sheriff Hickam denied that he had promised the defendant immunity from prosecution of the pending cases in return for making admissions to.clear up unsolved crimes. He testified that he told the Crow brothers that he could not promise immunity but that in all probability there would be no charges filed on what they talked about that day; that nothing could be done about charges already filed. The sheriff had a list of unsolved crimes and asked the Crow brothers what they knew about each of them. The list and the brothers’ answers are not in evidence, but it does appear that the information the brothers gave the sheriff explained the commission of 37 other crimes in which they or a cousin of theirs had participated. Delbert and Glen were evidently quite cooperative; in fact, there was some testimony that Glen contemplated writing a book about their exploits.

We are inclined to believe as the trial court might well have found that the sheriff did not, as the defendant testified, undertake to grant immunity in return for the information furnished, but at best he only offered to intervene with the prosecutor on behalf of the Crow brothers as appears from the testimony of the sheriff and Glen Crow. Nevertheless, if the facts were as the defendant contends, it would be of no avail because the sheriff of Jasper County had no authority to grant the defendant immunity from prosecution in the pending cases.

This State along with others has been quite chary about granting immunity from prosecution for criminal offenses. As we have previously noted, this State has immunity statutes pertaining to certain situations. State ex rel. North v. Kirtley, Mo., 327 S.W.2d 166, 170. The defendant does not bring himself under any of these statutes, and the courts are not inclined to extend their coverage. Ex parte Arvin, 232 Mo.App. 796, 112 S.W.2d 113, 118[6]. In the absence of specific statutory authority, there is an “established practice” not to prosecute an accomplice who has testified for the government in the expectation of immunity against prosecution, and such a witness is sometimes said to have “an equitable claim to immunity from prosecution.” 22 C.J.S. Criminal Law § 46(1), p. 156. But the courts of this State have held that an agreement of a prosecuting official to discharge a prosecution against an accomplice in consideration of his testifying against a confederate cannot be enforced and is not effective as a bar to a prosecution. State v. Myers, 330 Mo. 84, 49 S.W.2d 36, 40[3]; State v. Guild, 149 Mo. 370, 50 S.W. 909, 910[1]. See also annotations: 13 A.L.R.2d 1439, 1441, 85 A.L.R. 1177, and L.R.A.1918A, 376, 378.

But regardless of a prosecuting attorney’s control over the prosecutions in his county, it seems quite clear that the sheriff has no standing to grant or offer immunity as a bar to a prosecution. 15 Am.Jur., Criminal Law, § 322, p. 19, in discussing who may grant immunity states: “Nor can police officers or a sheriff grant immunity from prosecution to one of two or more persons accused of a crime on condition of confession and readiness to become a witness against the others accused, at least, where the promise is made without the authority of the prosecuting attorney; and such a promise cannot be pleaded ⅛ bar of an indictment for the crime.” It is sufficient for our purposes to say that the sheriff did not have authority to grant immunity from prosecution in the circumstances of this case. See also Commonwealth v. St. John, 173 Mass. 566, 54 N.E. 254.

In his points relied on, the defendant cites § 10 of Art. I, Constitution of Missouri, V.A.M.S., providing that no person shall be deprived of life, liberty, or property, without due process of law. There is no discussion of this constitutional provision; it is not related to any of the facts or circumstances in evidence and is not referred to in the motion for new trial. The bare mention of the constitutional provision presents nothing for review.

We have considered all questions properly preserved and find them to be without merit. Accordingly the judgment in each' case is affirmed.

All of the Judges concur.

On Motion for Rehearing or to Transfer to Court en Banc

PER CURIAM.

In his motion for rehearing or, in the alternative, to transfer to the court en banc, the appellant complains that the court did not specifically rule upon the matters which are preserved for review without assignment of error under S.Ct. Rule 28.02, V.A. M.R. In his brief filed in this court the defendant did not charge any deficiencies in this regard and does not now do so. In usual course we examined and considered the record as required by our Rule 28.02 and found all matters and items specified therein to be sufficient and free from error. As stated in the original opinion we considered all questions properly preserved and found them to be without merit.

The motion for rehearing or, in the alternative, to transfer to the court en banc is overruled.