author: MILLIKEN, Judge.

text:
    LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Charles WORTHINGTON, Appellee.
    Court of Appeals of Kentucky.
    March 2, 1962.
    J. M. Terry, James F. Wheeler, Louisville, J. C. Baker, Harlan, Glenn W. Den-ham, Middlesboro, Henry L. Bryant, for appellant.
    Carlos B. Pope, Barbourville, for appellee.
   MILLIKEN, Judge.

This is an appeal from a judgment of the Harlan Circuit Court, sitting without a jury, awarding to appellee, Charles Worth-ington, the sum of $4,158.20, with interest from the date of the judgment until paid, and the cost of the action. The action arose out of a collision between a diesel locomotive owned and operated by appellant, the Louisville & Nashville Railroad Company, and a 1958 Fairlane sedan owned and driven by appellee. The main question on appeal is whether the court properly applied the last clear chance doctrine.

The collision occurred at a public crossing in Coxton, Harlan County, Kentucky, about four miles from the City of Harlan, on the afternoon of April 10, 1958, between 4:00 and 6:00 p. m. Plaintiff was driving his automobile in an easterly direction along the road that led from the main highway, across Clear Creek and across the railroad line roughly parallel thereto and into the community of Coxton. There are two parallel railroad tracks at that point, one of which, the westernmost track, is the main track of the Railroad Company between Evarts and Loyall, Kentucky, and the other, the easternmost track, is a passing track. Thus plaintiff and others traveling in the same direction (toward the east) would cross the main (or westernmost track), first. On the easternmost track there were-stored some “gondolas” or “gons”, railroad cars of the type used for carrying coal. The main track and passing track curve to a moderate degree, so that if the curve were extended on to form a circle the main track would he on the outside of the circle and the passing track on the inside.

According to plaintiff’s testimony, he drove up to the crossing, stopped, and looked up and down the railroad track and at first did not see the train although his view was unobstructed for ten or twelve car lengths. He drove his car up onto the track and “just happened to see the train.” He testified that he did not know what attracted his attention to the train after he drove upon the crossing. Plaintiff also testified that he could see up the track ten rails from the crossing, that he first saw the train when his car had gone about two or three feet onto the crossing, and that he stopped and backed his car up a “couple of feet,” and then the train hit his car.

The train which hit plaintiff’s automobile consisted of a diesel locomotive, running backwards, and a caboose which it was pulling. The engineeer and fireman testified that the whistle was blown properly and the bell' was ringing. Plaintiff and some of his witnesses testified that they did not hear the whistle or the bell. The train was moving at an “ordinary speed” of twenty to twenty-five miles per hour, according to the Railroad’s witnesses. Plaintiff’s witnesses estimated its speed at between forty and fifty miles per hour. The brakeman, who was in the cupola of the caboose on the right-hand side, saw the automobile when the train was four or five car lengths from the crossing. He testified that plaintiff’s car did not stop as it approached the crossing, and that he did not think the driver stopped before he got on the crossing. A number of men, some of whom testified for plaintiff at the trial, were standing or sitting on or near the crossing as the train approached, and they knew the train was coming and moved out of the way.

The engineer saw plaintiff’s car on the track when the train reached a point six or seven car lengths (300 to 3S0 feet) from the crossing. He saw the car and noticed that it was jerking back as if it had come to a stop and the driver had shifted into reverse. He then applied the brakes “and started to stop as quick as I could” and, at a distance of about two car lengths (100 feet) of the crossing he applied the emergency brake. The engineer did not apply the brakes in emergency at first because he thought the driver would keep on going forward instead of backing up. When the car stopped and the engineer saw that the driver (plaintiff) intended to back up, he applied the brakes in emergency, but he said it was impossible to stop the train in the distance available at the time he saw the automobile stop. The brakeman testified it would take at least 250 feet to stop the train with the emergency brake, and that it was impossible to stop it in time to avert the aecident.

At the conclusion of the evidence for the plaintiff, the Railroad moved to dismiss the complaint on the ground that plaintiff had shown no right to relief. The motion was overruled, the court entered judgment for plaintiff and the Railroad has appealed-

In its opinion and finding of facts, the trial court said:

“The trainmen all testified the whistle was blown. We have an equal number present at the crossing who said no signal was given. The Court feels the evidence preponderates to the effect that no signal was given.
“The Court further feels from the state of these facts that the engineer did not have his engine under proper control in view of all circumstances surrounding, this accident. It was known by the crewmen, and this knowledge is passed on to the defendant, L & N Railroad Company, that this crossing was a place where people sat, loafed and frequented. It seems to . the Court that an added duty should be placed on the operator of trains when that circumstance exists.
“The Court gets the impression this was not a private crossing but a public crossing, and therefore, a duty was owed to give a warning to people that used the crossing of approaching trains.
“The Court feels that even though Mr. Worthington (the plaintiff) may have been negligent in the operation of his automobile, the operator of the Railroad engine had the last clear chance to stop the train and to avoid the collision. The engineer stated that . he saw the automobile on the crossing when he was some 300 to 350 feet away from it and that he applied his brake.
“According to the testimony of the plaintiff, he acted in emergency when he first discovered the approaching train; therefore, he was not required to use the wisdom and judgment of persons acting in circumstances other than this.
"The Court concludes that the Railroad engine was traveling at a greater speed than 25 miles an hour, because had it not been making greater speed, perhaps the engineer could have stopped the train when he finally put his brake in emergency. The train failed to stop. Had the engineer exercised due diligence, he could have stopped this engine before it struck the automobile, and the Court feels he failed to do this, and that as result of these acts of negligence, the automobile of Mr. Worthing-ton was struck and he received personal injuries.”

The Railroad Company insists that the trial court erred in rendering judgment for plaintiff, and further erred in denying its motion to dismiss the complaint because, as a matter of law, on the basis of so much of the evidence as is uncontroverted, plaintiff was guilty of contributory negligence that was a proximate cause of the accident and defendant did not have the last clear chance to avoid the accident.

There is sufficient evidence to support the trial court’s finding that no bell or whistle was sounded to give warning of the train’s approach which should have been done within fifty rods of the crossing. KRS 277.190. The conclusion that the engineer did not apply his emergency brake as promptly as he should is supported by evidence. Furthermore, its finding that the train was traveling faster than twenty-five miles an hour as it approached the crossing has testimony to support it. Whether the court found the plaintiff was contributorily negligent is difficult to assume from the wording of the opinion, for the court concluded “even though Mr. Worthington (the plaintiff) may have been negligent in the operation of his automobile, the operator of the Railroad engine had the last clear chance to avoid collision”, which must be considered in context with that part of its opinion which found no signals had been given and, which concludes, “Had the engineer exercised due diligence, he could have stopped this engine before it struck the automobile, * * * and that as a result of these acts of negligence, the automobile was struck * *

We must consider the fact that the trial court had the opportunity to hear and see the witnesses and had the duty to weigh the evidence: that it found no signal was given by the train, that the train was traveling too fast considering the nature of the crossing and that the engineer could have stopped the train in time had he applied his emergency brake before he did after discovery of the plaintiff’s peril. When we review its findings (CR 52.01) we have little reason to declare them so “clearly erroneous” as to justify a reversal, for there is probative evidence to support each of them. Clay, Ky.Civil Rules, pp. 466, 467 and 468.

The judgment is affirmed.

MONTGOMERY and BIRD, JJ., dissenting.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Carl WADE, Appellant, v. Finis DURRETT, Individually, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.
    Rehearing Denied March 23, 1962.
    Paul R. Huddleston, Bowling Green, for appellant.
    Robert M. Spragens, Lebanon, Joseph J. Leary, Frankfort, for appellees.
   CULLEN, Commissioner.

The appeal is from a judgment in a proceeding for a recount of the ballots cast in the race for county judge of Green County at the 1961 general election. The canvass of the votes by the election commissioners had shown Carl Wade, Republican, to be the winner over Finis Durrett, Democrat, by 43 votes. Upon the recount in the circuit court Durrett was adjudged to be the winner by two votes. Wade has appealed.

Questions are raised on the appeal with respect to the counting of 27 ballots, the markings on which departed from standard form. The questions concern whether these ballots should be counted at all, and if so, for which candidate.

With respect to 22 of these ballots our net conclusion is substantially the same as that reached by the circuit judge, although we differ from some of his decisions upon specific ballots. These 22 ballots involve such individual peculiarities of marking that for us to describe each one and explain our decision as to its counting would serve no useful purpose.

The outcome of the case depends upon the counting of the remaining five ballots, which are marked so similar to each other as to raise a single question. The circuit court counted these ballots for Durrett. If these ballots are not counted for Durrett, Wade is the winner.

The question can best be presented by setting forth a replica of the top portion of one of the ballots (omitting the emblem and circle at the top of each column) as follows:

Each of the five ballots in question was marked with a stencil in the square in the space in the Democratic column designed for use in voting for a write-in candidate for State Representative (as indicated in the replica above). On two of the ballots there was no other stencil mark at all. On two more the only other stencil mark was in the circle at the top of the Republican column. On the remaining ballot there were stencil marks indicating votes for the Republican candidates for County Court Clerk and Coroner, and for the Democratic candidates for State Senator, Sheriff, Tax Commissioner, Jailer, County Surveyor, and Justice of the Peace.

The question is whether the mark in the square in the State Representative write-in space shall be considered to be a vote for County Judge, on the theory that the voter intended to vote for some one, or whether the mark should be treated as ineffective because the voter’s intention in making it cannot be fairly ascertained or because the mark represents nothing more than an expression of protest against the Republican candidate for State Representative.

The basic policy governing questions of the nature here presented has been stated by the legislature, in KRS 118.280(2), to be, “No ballot shall be rejected for any technical error that does not make it impossible to determine the voter’s choice.”

This Court has followed the rule that a voter should not be disfranchised if it may be ascertained that a bona fide attempt was made by him to. vote for a particular candidate. Sizemore v. Henson, Ky., 264 S.W.2d 865; Thompson v. Boling, 240 Ky. 340, 42 S.W.2d 321.

In Snowden v. Flanery, 159 Ky. 568, 167 S.W. 893, several ballots were marked with a stencil in the square below the square opposite the candidate’s name, and one ballot was marked with a pencil in the open space opposite the name of the office above the candidate’s name. It was held that all of these ballots should be counted.

In Thompson v. Boling, 240 Ky. 340, 42 S.W.2d 321, which involved a primary election, the names of Boling and Thompson were set forth on the ballot with squares opposite them, under the heading “State Representative,” and below Thompson’s name there was a dotted line extending across to a third square. Several voters placed a stencil mark in the latter square. The court held that they cast valid votes for Thompson. In reaching this decision the court said (42 S.W.2d 322):

“ * * * It is a general rule that when it is clear that the voter has made an honest effort to conform to the directions of the statute as to the manner of voting, although with imperfect results, the ballot should be counted. if the intention of the voter can be effectuated.
“In this state the undeviating practice has been to search out the purpose of the voter, and if he has manifested his intention by his ballot, it will be given effect.
“It is not enough that some possibility defeating the evident purpose of the voter can be conjectured. The rule requires only reasonable probability, and that which was probably intended cannot be said to be impossible of ascertainment. * * *
******
"* * * It is reasonable to presume that the voter intended to vote for some one, and when he did not register his choice with precision it is a just inference, in the absence of anything further to show his intent, that he intended to vote for the name nearest his mark. It is too much to surmise that the voter marked the ballot with a stencil and then forgot to carry out a purpose to write in a name, as was conjectured by the court in People ex rel. Vantel v. Morgan, 20 App.Div. 48, 46 N.Y.S. 898. Equally farfetched and unlikely is the suggestion that the voters chose that method of declaring disapproval of both candidates whose names were printed on the ballot. * * * ”

In Sizemore v. Henson, Ky., 264 S.W.2d 865, the ballot contained a Republican column and four Independent columns, each of the latter being headed by a picture of an independent candidate for a particular office. None of the independents were candidates for the same office. Each of the Independent columns carried a full list of the offices to be voted for, but the only candidate’s name printed in the column was that of the man whose picture was at the top, his name being printed under the title of the office for which he was a candidate. As to each of the other offices there was merely a dotted line followed by a square. The top office in each column was that of State Representative. The office of jailer, for which Sizemore was a candidate, was the sixth office down the column. A number of ballots were marked in the square under the heading “State Representative” at the top of Sizemore’s column, and others were marked in other squares in his column not opposite his name. It was held that all of these ballots should be counted for Sizemore, on the basis that the voters obviously were making an honest effort to vote for some one, and it was reasonably clear that their intent was to vote for Sizemore.

Under the authority of the foregoing cases it is our opinion that in the instant case the circuit court properly counted the five ballots for Durrett.

The judgment is affirmed.

BIRD and PALMORE, JJ., dissenting.


author: BIRD, Judge.

text:
    James A. GRAYSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 2, 1962.
    William P. Runnels, Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   BIRD, Judge.

James A. Grayson was tried and convicted on a charge of robbery. His punishment was fixed at eight years’ imprisonment in the penitentiary. He appeals.

On trial Grayson claimed that he was “blacked out” and unconscious and if he robbed a bus driver as charged in the indictment he was unaware of it.

On appeal he has only one complaint. He contends that the trial judge erred in not giving the whole law of the case insomuch as he failed and refused to give an instruction on his “blackout” theory.

In his motion for new trial the defendant said: “The court misinstructed the jury.” No further mention is made of the instructions.

In Adkins v. Commonwealth, Ky., 309 S.W.2d 165, this Court said:

“The filing of a motion and grounds for a new trial is an essential step in the appeal of a criminal action. Commonwealth v. Tarvin, 114 Ky. 877, 72 S.W. 13, 24 Ky.Law Rep. 1663. It sets out the bases upon which an accused seeks reversal of the judgment of conviction. Criminal Code of Practice, Section 27. The reviewing court will not consider errors committed in the trial unless they are set out in the motion for a new trial, Philpot v. Commonwealth, Ky., 247 S.W.2d 499, and unless the motion has been passed on by the trial court.”

In Manning v. Commonwealth, 281 Ky. 453, 136 S.W.2d 28, we also said:

“Errors in the instructions must be pointed out in the grounds for a new trial in order to preserve the defendant’s right to their review upon appeal. Fields v. Commonwealth, 277 Ky. 796, 127 S.W.2d 839; Montgomery v. Commonwealth, 266 Ky. 795, 100 S.W.2d 818; Jones v. Commonwealth, 238 Ky. 453, 38 S.W.2d 251; Hunt v. Commonwealth, 235 Ky. 594, 31 S.W.2d 940. Section 271 of the Criminal Code specifies ‘error in instructions’ as one of the grounds authorizing the granting of a new trial, section 274 requires the grounds relied upon to be specified in writing, and section 273 limits the time for filing the motion and grounds for a new trial. The remedy afforded by these sections of the Criminal Code is exclusive, and, unless they are complied with, errors required to be stated in the grounds for a new trial cannot be considered on appeal. Wellington v. Commonwealth, 159 Ky. 462, 167 S.W. 427.”

To simply say that the trial court “mis-instructed the jury” does not point out the error as required by the foregoing authorities. Failure to give an instruction on the “blackout” theory should have been specifically pointed out to the court. The trial judge would then have had an opportunity to study the matter and determine whether or not there was error. The question was not properly presented in the motion for new trial and we therefore decline to consider it on appeal.

The judgment is affirmed.


author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. George SCHAFFER, Appellant.
    No. 48680.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied March 12, 1962.
    Allen J. Roth, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

George Schaffer was found guilty by a jury of the offense of rape, and he appeals from the judgment sentencing him to imprisonment for a term of ninety-nine years as fixed by the trial judge under the Habitual Criminal Act (§ 556.280, RSMo and V.A.M.S.). He has not filed a brief, but his motion for a new trial (to which, in the absence of a brief on his part, we look for the assignments of error preserved for appellate review) raises, or attempts to raise, only three questions, viz.: (1) The sufficiency of the evidence to make a sub-missible case; (2) the admissibility of “State’s Exhibit No. 4,” a photograph of prosecutrix taken in color by a police photographer, and (3) the propriety of permitting the trial to proceed over defendant’s objections to the demeanor of the prose-cutrix at certain times while testifying.

The facts are bizarre and revolting, but enough of them must be stated to determine what seems to be the principal point in the case, and that is whether the court should have directed a verdict of not guilty as moved by defendant at the close of all the evidence.

The prosecutrix, who will sometimes be referred to as Patricia, is a mentally and physically retarded, 18-year-old, white girl. She lived with her parents and six or seven brothers and sisters in the 2600 block of Cass Avenue, a predominantly colored neighborhood in the City, of St. Louis. The defendant lived about two blocks away — at 1521 North Jefferson. He is a Negro, formerly a boxer, having participated in more than three hundred fights, and, as nearly as we are able to ascertain from the record, probably about 48 years of age.

On Thursday, April 21, 1960, about 3 or 3 :30 p. m., Patricia’s mother sent her to a neighborhood cleaning establishment (located just across the street from defendant’s home) to pick up her father’s pants. The pants were not ready, and she “started back home.” Traveling the usual and normal route homeward would cause her to pass in front of 1521 North Jefferson. While walking along the sidewalk adjacent to those premises, she was grabbed from behind by defendant, and dragged into his house where, to use her language, she “got socked in the stomach and almost choked.”

There is no dispute as to the following particular facts (both prosecutrix and defendant having testified to them) : That prosecutrix .remained in defendant’s house or living quarters (comprised of four rooms — “all in line, one room after the other”) until about 8 or 8:30 o’clock the next morning; that defendant “shaved” the pubic hair from the region of her groin (actually he used hair clippers with which he did barbering), and that they spent some part of the night in bed together, both in the nude.

Turning now to the state’s proof in relation to other aspects of the offense, and what transpired after prosecutrix was dragged into the house, it is sufficient to say, without descending into particularities, that the state’s evidence was such as to have warranted the jury in finding the facts to be substantially these: That defendant struck prosecutrix in the stomach and mouth with great force, choked her, threw her on a bed, and tore her clothing off; that he “knocked her out,” and for some indefinite period she did not know anything; that she woke up during the night and tried to get out the back door, but was unsuccessful because intercepted by defendant, who had wakened, and he caused her to get back in the bed with him — both were naked; that during the night defendant told her if she made “one sound” he would knock her brains out with a hammer; that she woke up after daylight and defendant permitted her to go about 8 a. m., after first warning her that he would kill her if she told anybody.

Prosecutrix was apparently unable to tell the jury from her own knowledge whether defendant had sexual intercourse with her, as will appear from these excerpts from her direct examination:

“Q. What happened after he threw you on the bed?
“A. He shaved me.
“Q. What happened to your clothing?
“A. He tore my clothing off me. * * *
“Q. What happened after he threw you on the bed, Patricia?
“A. I don’t know. * * * He knocked me out. * * *
“Q. Do you know what intercourse is?
“A. Yes.
“Q. Did this man have intercourse with you, do you know?
“A. Yes.
“Q. Do you know — do you remember it?
“A. No, I don’t remember it.”

When permitted to leave about 8 a. m., Patricia went directly to her home (two blocks away), arriving there in a nervous and frightened condition with bruises and scratches on her neck and body. She was taken at once to City Hospital to undergo medical examination, and there two vaginal smears for male sperm were made — one from the vulva, and the second from the deepest part of the vagina. The bacteriologist testified that the latter was positive — “Spermatozoa present.” The exam ining physician at the hospital testified that at the time of the examination Patricia was emotionally upset; there were scratches on her neck and left arm, and she complained of pain in her chest, and she had an abrasion of her vulva. He further testified that “trace of spermatozoa” will remain in the female organ from twenty-four hours up to about forty-eight after an act of intercourse; and that, assuming the vaginal smear was positive (as subsequently testified to by the bacteriologist), it was his medical opinion that there had been penetration in this instance within the 24-48 hour period. Additionally, laboratory tests showed seminal fluid to be present on her undergarments.

On her way home from the hospital, Patricia pointed out to the police the premises where the assault had occurred, and about 11:15 that night the police there arrested defendant. When he opened the door, he said to the two policemen (both of whom he knew), “I know what you are here for. I really done it this time.” When they stepped into the house to question him, “he stated he did have intercourse with the girl — that ‘he had her,’ and pointed out the room wherein it had occurred.”

The state proved defendant had been priorly convicted of murder in the second degree, and sentenced to a term of ten years in the Missouri Penitentiary, from which he was discharged November S, 1956, upon lawful compliance with said sentence. On cross-examination he admitted numerous other convictions, i. e., for fighting, carrying concealed weapons, common assault, assault with a deady weapon (brass knuckles) in Chicago in 1943, and possibly others about which he was not sure.

Defendant’s version, in brief (and in addition to what has already been related as having been admitted by him), was this: That Patricia’s presence in his house was entirely voluntary on her part; that she entered by the back door at 5:30 or 6 o’clock, ostensibly to see his former housekeeper, Gert, and to borrow money from the latter with which to get clothes out of a cleaning shop; that he informed prosecutrix that Gert was not there, but nevertheless she did not want to go home, and he did not ask her to go because she was afraid her mother was going to whip her — this for the reason that her clothes were torn and she was “scratched and beat up”; that during the 15 or more hours she was in his home, she was “free to go” (although the doors were locked from the inside) ; that he slept most of the 15-hour period “after I finished drinking.” This was the extent of his direct examination, it having been concluded without any denial of his guilt, but the following was developed on cross-examination :

“Q. Now, Schaffer, did you have intercourse with this girl?
“A. That I said over and over again, if anything like that occurred, I don’t know anything about it, because I put the girl in the middle room, and when I woke up she was in mine, she was in my bed.
“Q. When you woke up were you undressed ?
“A. Yes.
“Q. Were you completely nude?
“A. I was completely nude when I went to bed.
“Q. Is that the normal way you went to bed?
“A. I sleep that way * * *.
“Q. She was completely nude when you woke up?
“A. Yes.
“Q. Did you ever strike her, Schaf-fer?
“A. That I swear I didn’t do.
“Q. Didn’t you tell the police you were so drunk you didn’t know what happened; didn’t you tell the police down there you were so drunk you didn’t know what happened the whole night ?
“A. I told the police that I had been drinking. They asked me what happened, he said — he asked me if I hit her, and I said I never hit her. * * *
“Q. You remember what happened now?
“A. No more than that I .remembered then. * * *
“Q. Is it your testimony you did not have intercourse with this girl?
“A. I said if I did I didn’t know nothing about it — I have no remembrance of it, or any knowledge of it.
“Q. You don’t remember?
“A. I said then, and I still say, I don’t remember having any intercourse with her, at all.
“Q. But you do remember that you did not strike her, is that right?
“A. I remember that.
“Q. You do remember you did not drag her in off the street, is that correct?
“A. That is definitely correct.
“Q. So you do remember you didn’t strike her and you remember you didn’t drag her in off the street?
“A. That’s right.
“Q. But you don’t remember whether you had intercourse with her?
“A. That’s right.
“Q. Do you remember if you shaved her pubic hair down at her private parts?
“A. At her insistence.
“Q. She asked you to do that?
“A. She asked me to do that.
“Q. She asked you to do that?
“A. She asked me to do that so that she would have something to show her mother why she stayed out all night.”

The following questions and answers appear in defendant’s re-direct examination:

“Q. (By Mr. Roth) How many rooms in your house?
“A. Four.
“Q. Were they all in line, one with the other?
“A. Right.
“Q. Do you remember the prose-cutrix getting up; that is, Pat — getting up in the middle of the night, at any time?
“A. If I remember correctly I told her — she woke up during the night— I woke up, see, I didn’t know she was in bed with me; I had originally told her to go to bed in the middle room— I had two bedrooms, and the bedroom between my room and the front room was the bed she was originally put in to go to sleep.”

The motion for new trial assigns error in the court’s failure to direct a verdict of not guilty in these respects (to quote the motion) : “[T]hat the circumstantial evidence of semen found in the vagina * * * did not tend to prove the act of penetration by said defendant, and further, that there was no evidence of force being used by said defendant at any time shortly before the time alleged by the state for the commission of the alleged act, and further, any testimony about force earlier was not sufficiently connected to the time of the alleged commission of the alleged act.” Taking these seriatim: No extended discussion is required to demonstrate that under the admitted fact of wide-open opportunity for (and in the light of defendant’s mild disclaimer, if not to say tacit admission, of) intercourse between the principals within permissible time limits for effective smear test purposes, it was for the jury to say whether the defendant was responsible for the positive reaction of the smear test for male sperm as made upon prosecutrix, and, in consequence, penetration. The second and third reasons assigned are overlapping and to some extent contradictory in that they seem to admit or imply that defendant had used force at some early stage of prose-cutrix’s detention, but that it was too remote because not “shortly before” the act constituting the offense was “alleged” to have been committed, nor was it otherwise sufficiently connected in point of time. The proof did not show the precise time at which the act occurred — whether when prosecutrix was first dragged in, or later. The uninterrupted presence of the parties together for IS to 18 hours, under the conditions we have noted, when considered in the light of the retarded mentality of prosecutrix, her testimony as to having been struck, beaten and choked, and her physical condition upon being released, made the question of defendant’s use of force a question for the jury. The motion for a directed verdict was properly ruled.

Error is assigned in receiving in evidence, over defendant’s objection, a color photograph made of prosecutrix on the morning of April 22 by the police. The motion charges that it depicts her as being “horribly injured with discoloration and bruises about her neck and face.” The objection interposed at the trial was that it was inflammatory, highly prejudicial, and if introduced for the purpose of showing injuries, it was beyond the scope of the indictment, counsel meanwhile interjecting this conclusion, “I am sure that the color of it is not the coloring that would be natural.” The photograph was properly identified as representing how Patricia looked on the morning of April 22. It is not before us for inspection because not included in the transcript, nor filed here separately. The matter involved is largely one of discretion which is entrusted to the trial court. There is nothing in the record to indicate an abuse of that discretion. In the absence of the photograph itself, and in view of the only medical evidence in the case (that of the examining physician at City Hospital, a state’s witness) that the scratches around prosecutrix’s neck and left arm were superficial, we defer to the superior opportunity of the trial court to evaluate the probable effect of the tendered exhibit as being inflammatory or not, and, doing so, unhesitatingly overrule this assignment.

The next and final assignment is somewhat akin to the foregoing one in that it, too, challenges a discretionary ruling. The charge is that the court should have declared a mistrial in each of several instances because of prosecutrix giving testimony while in a highly emotional state, “sobbing hysterically, tearfully crying, and unable to testify without interrupting herself by her aforesaid sobbing and crying.” We find two instances where defendant moved for a mistrial, once on the ground that the prosecutrix was “sniveling,” and another (one page later in the transcript) that she was “crying and sniveling on the stand” and “on the verge of hysteria.” In the first instance, the court commented and ruled, “The witness is conducting herself very properly in the court’s opinion, the objection is overruled.” In the second, the court stated that in its opinion the witness was not hysterical, but “conducting herself here fairly well — she is conducting herself properly, while she is stumbling a little bit, but that is the ordinary thing that happens in rape cases — that is the way girls in rape cases do — they do it all the time. Your objection is overruled.” There is nothing in the record to indicate the situation was otherwise than as stated by the court, and no prejudice appears therefrom. No evidence was heard on the motion for a new trial, and the grounds thereof directed to this particular matter, being mere conclusions, do not prove themselves. Defendant’s contention is disallowed.

We have examined those portions of the record where on Rule 28.02, V.A.M.R. requires that judgment be rendered whether error is assigned or not, and find the same sufficient. The judgment is, accordingly, affirmed.

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John Ivory CRAYTON, Appellant.
    No. 48744.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 12, 1962.
    Luke, Cunliff & Wilson and Robert R. Schwarz, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., O. Hampton Stevens, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was convicted of second degree burglary and stealing, with five prior felony convictions. He was sentenced by the court to terms of three and two years respectively, or a total of five years’ imprisonment. Essentially, the sole defense was insanity, supplemented to some extent by a theory of “involuntary” drug intoxication. Defendant was 25 years old at the time of the offense and the evidence indicated that he had used narcotic drugs in some form since he was 14 or 15 years old. Two of his prior convictions were for illegal possession of narcotics.

The facts of the offense may be stated very briefly. Persons in a second floor apartment heard noises coming from a vacant apartment above them and called the police, after first calling up the steps to the person there. Defendant came down the stairs, knocked on their door and was refused admittance; he then went on down to the front of the building where he was arrested. At that time he was wearing a sport coat, trousers and shoes which the complaining witness had placed in the vacant apartment a few hours earlier. That witness testified that he held a lease on the whole building. Defendant made no effort to escape. A third floor window opening on a fire escape was found open when the police went there after the arrest. At the time of the arrest defendant told the police (about 12:30 a. m.) that he was looking for a “married woman,” but was not sure where she lived. The police found defendant’s abandoned clothes in the third floor apartment from which the others were taken.

Defendant offered in evidence excerpts from the records of several admissions to the Malcolm Bliss Psychopathic Hospital, a branch of the St. Louis City Hospital. These covered a period from December 1956 to June 1960. In some instances defendant had been sent there by the police, in others he had signed voluntary applications for admission. He was shown in these records to have had hallucinations and delusions at times, and to have given histories of bizarre actions; at times he acted irrationally in the hospital as, for instance, crouching in a corner and asking for protection from the rats. The predominant diagnosis made was “Acute Brain Syndrome with drug intoxication.” Another phase of the diagnosis will be referred to later.

A resident physician specializing in psychiatry, who had served for two periods of six months each at Bliss and had thus known defendant for approximately a year and a half, testified fully. He considered and stated the probable existence of “chronic brain syndrome with schizophrenic reaction,” upon a hypothetical question assuming and relating various bizarre actions and hallucinations; he explained schizophrenia as an illness characterized by disorder of thought and mood, with hallucinations as secondary symptoms, and a poor prognosis; on further hypothesized assumptions, however, he stated that the schizophrenic reaction would probably be ruled out. This physician had also examined defendant at the hospital during the month before the trial upon order of the court. He testified that if the history given to him by defendant of a mental condition and de-lusionary ideas supposedly present at the time of the offense on October 14, 1960, were true, defendant was then psychotic and did not know the difference between right and wrong. In that history defendant had stated that he was walking past a tavern, that he went in and thought the people there were having a farewell party for him, that someone was going to kill him, and that he was not properly dressed, so he went outside and entered the place where the burglary was committed and took and put on the clothes. On cross-examination this doctor testified that in view of the various hospitalizations and defendant’s whole history, his psychosis was self-induced, from drugs. Defendant gave a present history of taking amphetamine in quantities which, the doctor testified, tended to produce hallucinations and ideas of persecution; he further testified that,,without the drug the hallucinations of defendant would disappear; that defendant had a “personality disorder” as his basic problem, independent of drugs, but that defendant “does know the difference between right and wrong today.” The necessary inference from his testimony is that defendant did know the difference between right and wrong when not taking drugs. The doctor also testified that one addicted to a drug does not have the “normal ability” to resist it, and needs help. Two of defendant’s relatives testified to peculiar actions on his part, but that testimony would add little to our consideration here.

Defendant’s counsel complains first of the court’s instruction on insanity, and particularly to a preliminary paragraph which defined insanity as a “physical disease located in the brain, which disease so perverts and deranges one or more of the mental and moral faculties as to render the person suffering from this affliction incapable of distinguishing right from wrong, * * Counsel insists that the instruction unduly increased defendant’s burden which should merely require that he was so "mentally deranged as not to know right from wrong.” Appellant cites no case holding this erroneous. The instruction is long and we do not quote it. Following that preliminary paragraph, the jury was further told: “* * if you find * * the defendant was so perverted and deranged, in one or more of his mental and moral faculties, as to be incapable of understanding at the moment he broke and entered * * * that such conduct was wrong, and further find that he, the defendant, at that time, was incapable of understanding that this act was a violation of the law, and if the jury find that he was then insane, they should find him not guilty. * * * The law does not excuse unless the derangement is so great that it actually renders the person incapable, at the time of its commission, of distinguishing between right and wrong in respect to the particular act that may be charged and proved against him. * * * if, from the evidence, you further find that, at the time he did it, he was in such an insane condition of mind that he did not know he was doing wrong, and did not comprehend the nature and character of the act, then such act was not in law malicious or felonious, and you ought to acquit him on the ground of insanity, and by your verdict, so say.” This definition of insanity, including the phrase “physical disease,” has often been used in Missouri, and so far as we can find it has never been held erroneous; it has usually been properly coupled with further explanations, as here. State v. Duestrow, 137 Mo. 44, 38 S.W. 554, 39 S.W. 266; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865. In State v. Goza, Mo., 317 S.W.2d 609, a most recent insanity case, the instruction approved was substantially identical with the one questioned here (as shown by our files) although this particular attack was not made there. The reference to “physical disease” is somewhat out of line with modern thought on the subject and could well be omitted, but in the instruction given here the whole issue was so clearly and completely covered that the jury could not have been misled; the controlling emphasis was upon a derangement in defendant’s mental and moral faculties such as to render him incapable of understanding that his conduct was wrong. There was no error in giving the instruction.

Defendant next complains of Instruction No. 8, which was, in so far as material, as follows: “ * * * if you further find and believe from the evidence that the defendant was intoxicated by drugs at the time, such intoxication is in law no excuse for or defense to such offense as you find to have been committed. Voluntary intoxication by drugs is never a defense to a criminal charge. The fact of such intoxication, if you find it to be a fact, is only to be considered by the jury in connection with all other facts, in determining the guilt or innocence of the defendant, and the degree of guilt, if you find he is guilty.” Counsel asserts that this instruction eliminated the defense of involuntary drug intoxication, and that defendant’s history and the evidence justified such a defense, particularly in view of defendant’s “personality defect” and long addiction. Counsel cites: State v. Riley, 100 Mo. 493, 13 S.W. 1063; Prather v. Commonwealth, 215 Ky. 714, 287 S.W. 559; Johnson v. State, 32 Ala.App. 217, 24 So.2d 228, and 22 C.J.S. Criminal Law § 72, p. 223. In Riley, a submitted instruction hypothesizing that continued, excessive drinking had impaired the mind of the defendant, was refused as not supported by the evidence. The court held that drunkenness was no defense and that “temporary insanity” resulting from voluntary intoxication did not constitute a defense; it did recognize that “long-continued habits of intemperance, producing permanent mental disease amounting to insanity, * * * ” might relieve one of criminal responsibility; and the court further said that insanity of that sort is the “same in law as insanity arising from other causes.” We have no such case here. In Prather, supra, the Kentucky Court seems to have recognized a form of insanity arising from the use of drugs, and that the use was involuntary because of the defendant’s addiction; there was specific evidence, however, that the defendant was insane. In Johnson, supra, the Alabama Court recognized a condition caused by drugs and alcohol which prevented one from forming the required criminal “intent” to steal, and thus operated as a defense. These cases are not in harmony with our existing law. An instruction directing an acquittal if one was so intoxicated as to be incapable of forming an intent was held properly refused in State v. Beasley, 353 Mo. 392, 182 S.W.2d 541. We have been cited to no Missouri case, and have found none in our own research, which recognizes a supposed “involuntary” use of drugs or drink as an excuse for or mitigation of crime, whether as a temporary insanity or otherwise. Nor was there any substantial evidence here to support a theory that the use of drugs by defendant was “involuntary” ; it was merely shown that he, as an addict, had less will to resist. The failure of this instruction to submit a defense of involuntary drug intoxication was not error. In so far as the use of drugs may or may not have resulted in or contributed to any actual insanity, defendant was given the full benefit of that defense under the insanity instruction already discussed.

When the arresting patrolman was on the stand as a State’s witness, it was developed on cross-examination that he had read a copy of his own police report about two or two and one-half hours earlier in the Courts Building; this had been shown to him by the Assistant Circuit Attorney. The witness had brought no report or copy with him, nor was any shown to him while he was testifying. This testimony was given less than three months after the arrest. Upon interrogation he said that the report refreshed his memory as to the details. Counsel for the defendant asked that the court allow him time to have the report subpoenaed, in order that he might use it in his further cross-examination. The court declined the request, noting that the issue was defendant’s mental capacity, that nothing in the cross-examination indicated that anything could be “gained by this,” that the case was' “less than three months” old, and that the witness was not hostile. Apparently counsel hoped to get from the report further details indicating some form of incompetency; the officer had already testified to the essential facts of the arrest, including his conversations with the defendant. Counsel cites: State v. Tracy, 294 Mo. 372, 243 S.W. 173; State v. Patton, 255 Mo. 245, 164 S.W. 223; and State v. Miller, 234 Mo. 588, 137 S.W. 887. In Tracy, supra, the court said in part, 243 S.W. loc. cit. 176: “Where a witness bases his testimony on a memorandum or other writing, having no independent recollection of the facts, such writing must be produced if required, in order that opposing counsel may inspect it, * * Counsel apparently relies on that statement; but there (on the issue of the identity of certain barrels of whiskey stolen from a bonded warehouse) it appeared that the witness had an independent knowledge and recollection, he had not used any records on the stand, and his testimony on the identity of the stolen barrels was held to be sufficient without the production of the warehouse records. The case is of no aid to defendant here. In Patton, the prosecutor read to a State’s witness from grand jury notes to refresh his recollection, and the court held that defense counsel had the right to see the notes. The holding in Miller, supra, was substantially the same.

In State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42, the court stated that defense counsel should be permitted to see a paper used by the prosecutor in refreshing the memory of a State’s witness “while he is testifying”; the refusal there was held error, but harmless. And see, generally, State v. Nardini, Mo.App., 186 S.W. 557; State v. Jackson, Mo.App., 194 S.W. 1078; Bova v. St. Louis Public Service Co., Mo.App., 316 S.W.2d 140. The purport of the Missouri cases seems to be that defense counsel should be permitted to examine a paper or document from which the witness has refreshed his recollection while on the stand and that to refuse this is error, but that this is not required where the paper is not produced and used at the trial, although it may have been examined by the witness previously. This view is re-enforced by the opinions in Lennon v. United States, C.A. 8, 20 F.2d 490, and Little v. United States, C.A. 8, 93 F.2d 401. Some dissent seems to be registered by Mr. Wigmore (3 Wigmore on Evidence, 3rd Ed., § 762, p. 111). But aside from the principles just stated, the court here had a very considerable discretion in determining whether it should recess the trial pending production of the police record on subpoena. And in making this determination it might properly consider, as it did, whether there had been any showing of probable materiality in the record. We hold that there was no error here. We note, however, as self-confessed dicta, that there would seem to have been no legitimate reason, legal or strategic, why the Assistant Circuit Attorney should not have shown counsel the copy which he very apparently had in his file, thus eliminating all this controversy; indeed the trial court indicated that view, and referred to the matter, out of the presence of the jury, as a “tempest in a tea-pot.” After all, the ultimate purpose of a criminal trial is to procure substantial justice and not merely to convict the defendant.

Defendant’s last three points may be considered together. In a part of the hospital records introduced by defendant and dated June 27, 1960, the following (as later explained) appeared: “Final DX:1/ schizophrenic reaction, chronic paranoid type 2/ addiction to drugs, chronic (amphetamine at present) 3/ sociopathic traits. Recommend 1/ patient is in need of long term psychiatric care at State Hospital, and it is hoped he can be rehabilitated. Note: Patient discharged, state application getting nowhere. O.P.D. — P.R.N. K. Catazano.” Counsel read this in full to the jury, except for the numbers, the letters in last line and the signature, with no explanations. Actually, that part of the “DX” (presumably diagnosis) numbered “1” was ruled through with a blue ink line, and the numbers were changed correspondingly, also in blue ink, thus ending with “2” instead of “3.” This is verified here from the original exhibit. When defendant’s medical witness was testifying, he called attention to the fact that part of that diagnosis had been “crossed out,” but that he did not know the particular circumstances ; thereupon the court examined the record, remarked that the record should so show, stated that these words should not have been read without an explanation, and instructed the jury that the words so lined out should be disregarded, reading them to the jury and explaining the renumbering. Counsel moved for a mistrial, which motion was overruled. One point made here is that the court erred in withdrawing this evidence and in instructing the jury as to the meaning of the lines so drawn, particularly since the doctor who testified (not the one who wrote the diagnosis) could not determine “why” the lines were there. The point, essentially, is that the meaning of all this was for the jury and that the court’s remarks were a comment on the evidence. It would have been much better for the court to have instructed counsel to exhibit the page in question to the jury, leaving it to the jury to determine the meaning of the lines and the effect, if any, of the diagnosis so stricken. The court here did assume to perform a function, though small, which was properly the jury’s and therein it erred. In this instance, however, the error was wholly harmless. The only statement thus withdrawn was: “1/ schizophrenic reaction, chronic paranoid type.” Other evidence, in the records and otherwise, re-fered to schizophrenia as a possible diagnosis ; thus there appeared in the records the following: “ * * * somewhat suspicious of schizophrenia.” “ * drawing * * has a peculiar schizoid or schizophrenic like quality.” * “tests raise a serious question of schizophrenia * “Also rather paranoid * Schizophrenia was described in oral testimony and the symptoms were given. The only medical witness was defendant’s own, and he supplied the medical opinions upon which legal insanity was to be found or not found. This witness definitely considered “schizophrenic reaction” as a part of the diagnosis, stating, in effect, that certain symptoms indicated this and others did not. In addition, the jury had heard all sorts of evidence concerning hallucinations and bizarre actions, plus a history of long continued drug addiction. It is simply incomprehensible that the withdrawal of this highly technical phrase from one isolated spot in the evidence could have prejudiced the defendant. The cases cited by defendant under this point, State v. O’Connor, 105 Mo. 121, 16 S.W. 510, State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, and State v. Peebles, 337 Mo. 973, 87 S.W.2d 167, are inapplicable. Counsel insists that when evidence comes in without objection it is not subject to being stricken. Here the exact status of this particular evidence was not apparent to the court or to opposing counsel when it was read and hence there was no full opportunity to object. But in any event that argument is now wholly immaterial, for we have recognized error and have held the error harmless. The same ruling applies to defendant’s last point which asserts error in the failure of the court to permit the exhibition of the discharge notes to the jury after the court’s comments. This point obviously has reference to that part of the diagnosis which we have just been discussing.

The remaining point made is the supposed withdrawal by the court of the statement: “Patient discharged. State application getting nowhere.” Counsel again cites the three cases last mentioned, and asserts that since that evidence came in without objection, improper or not, the court erred in withdrawing it. The trouble here is that the record does not support defendant. This part of the discharge note was fully read to the jury by defendant’s counsel. Later, and following the lengthy colloquy about the lines drawn through certain words, the court observed to counsel, out of the presence of the jury, that the words quoted above were a commentary that did not belong in a medical record and that he “should not again refer to these words They were not stricken nor was the jury ever instructed to disregard them; consequently, there can be no error. The jury had the evidence and there is no requirement that anything shall be admitted twice.

We commend counsel for the energetic, able and wholehearted defense made here under court appointment and without remuneration. We find no error in those parts of the record which we examine independently under our Rule 28.02, V.A.M.R. The judgment is affirmed.

All the Judges concur.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. James Earl RAY, Appellant.
    No. 48583.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    Motion to Transfer to Court en Banc Denied March 12, 1962.
    James Earl Ray, Appellant, pro se.
    Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., for respondent.
   HOLMAN, Commissioner.

The information herein charged the defendant with robbery in the first degree by means of a dangerous and deadly weapon. See Sections 560.120 and 560.135 (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.). He was also charged with a prior felony conviction. In accordance with the provisions of Section 556.280 the trial court held a hearing outside of the presence of the jury and found that defendant had been priorly convicted of robbery, not armed, in the Superior Court of Cook County, Illinois, and sentenced to confinement in the penitentiary for not less than one nor more than two years and was imprisoned in the penitentiary under said sentence until duly discharged. The jury thereafter found defendant guilty of the offense charged. In compliance with the provisions of Section 556.280(1) the trial court fixed defendant’s punishment at imprisonment in the penitentiary for a term of 20 years. Defendant has appealed from the ensuing judgment and sentence.

A brief statement of facts will suffice. There was evidence which would support a finding that defendant, together with one James L. Owens, entered a Kroger Store located at 3417 Ohio Street, St. Louis, Missouri, and took $120 in the manner hereinafter described. The robbery occurred at about 8:45 a. m. on October 10, 1959. Upon entering the store defendant approached the office and, with a gun in his hand, demanded money from the “cost manager,” Mr. Schaefer. Schaefer avoided giving him any money by stating that he could not open the safe. Defendant then approached the check-out station of Mrs. Hazel Meyer, pointed the gun at her, and demanded that she open the cash register. She opened the register and defendant took the money therefrom. Defendant and Owens left the store and drove away in a black Ford car. Mr. Schaefer obtained the license number on the car and reported it to the police.

One of the customers in the store, Robert Culis, followed the Ford in his car 'for several blocks until defendant and Owens transferred to another car. Culis obtained the license number on the second car (Plymouth) and it was reported to police headquarters. The information concerning the robbery was broadcast to the police patrol cars and the Plymouth was seen a few minutes later parked near a rooming house located at 2023 Park Avenue. Owens was arrested as he entered the Plymouth. Defendant was arrested on the second floor of the rooming house. According to detective Conners he resisted arrest and Conners had to strike him on the head with the butt of his gun. At that time defendant had $81.36 on his person and a search of his room produced two guns (one of which was identified as the gun used by defendant in. the robbery), and a hat and jacket which witnesses identified as being the same or similar to those worn by defendant at the time he was in the store.

There was a great deal of evidence which connected defendant with the offense charged. He was positively identified as the robber by Mr. Schaefer, Mrs. Hazel Meyer, Wayne Chapman, head grocery clerk, and customer Robert Culis. Also, on the day following his arrest, defendant signed a statement in which he admitted participation in the robbery in about the same manner as heretofore detailed.

Defendant testified in his defense of the charge. He denied having committed the robbery in question and repudiated his confession stating that he signed it only after rough treatment and extensive questioning by police.

In his pro se brief defendant first attacks the information upon the ground that it fails to adequately state an offense and also fails to sufficiently connect him with the crime charged. The charging portion of the information is phrased in substantially the same language as the information we approved in the case of State v. Perry, Mo.Sup., 233 S.W.2d 717. We accordingly rule that it states an offense under the provisions of Section 560.120.

The next contention briefed is that the court erred in admitting in evidence State’s exhibits 1, 2, 3, 5, 6, and 7 “for the reason that at no time during the trial were said exhibits shown to have been the property of, or in the possession of the appellant, or to-have been used in the commission of the crime for which the appellant was on trial.” There is no factual basis for this contention. All of these exhibits were found in defendant’s room when it was searched immediately following his arrest. Exhibit 1 was identified as the gun used by defendant in committing the robbery. Exhibits 2 and 3 were the hat and jacket which were identified as being the same or similar to those worn by defendant while in the store. Exhibit 5 was the clip, and exhibit 6 was the bullets which were removed from defendant’s gun (exhibit 1) after it was found in his room. We are of the opinion that under the circumstances here shown it was not error to admit exhibits 5 and 6, thus showing that the gun used by defendant was loaded when found about thirty minutes after the robbery.

Exhibit 7 was the other gun found in defendant’s room. Defendant says it was erroneously admitted because it did not tend to prove the crime charged but could serve only to prejudice the minds of the jurors against him. Defendant admitted ownership of this gun and there was evidence to indicate that it was used by Owens in the commission of the robbery. Under these circumstances it was properly admitted in evidence. State v. Gerberding, Mo.Sup., 272 S.W.2d 230.

Exhibit 4 was the statement signed by defendant admitting participation in the robbery. He contends that the court erred in admitting said statement because it was involuntarily made. When defendant indicated that he desired to object to the statement upon that ground the trial court held a hearing upon that issue outside of the presence of the jury. Defendant did not testify or offer any evidence at that hearing. All of the evidence submitted at that hearing indicated that the statement was voluntarily given. It is therefore apparent that the court properly admitted it in evidence.

Defendant also contends that the court erred in permitting testimony by William Boeger, warden of the city jail, concerning defendant’s physical condition. We have carefully examined the motion for new trial and do not find any assignment therein relating to this contention. Since this alleged error is not preserved in the motion for new trial it is not before us for review. State v. Hendrix, Mo.Sup., 310 S.W.2d 852.

Another contention briefed by defendant is that the court erred “in forcing the appellant to testify against himself.” This contention is based upon certain questions which defendant was required to answer when he voluntarily took the stand during the hearing concerning his prior conviction. However, we will not consider the merits of this contention as it was not mentioned in defendant’s motion for new trial and is therefore not preserved for review.

The final point mentioned in the brief is that the court erred in overruling defendant’s motion for judgment of acquittal at the conclusion of the evidence. This contention is based upon the alleged failure of the State to prove that Mrs. Meyer was put in fear at the time of the robbery. Defendant relies upon the following testimony of Mrs. Meyer developed upon cross-examination. “Q. Now, this fellow came up to you and he had a gun in his hand you say, now Mrs. Meyer, when somebody comes up and points a gun at you, you get pretty startled, don’t you? A. Well, sure. Q. Sure you do. And the fact is you were pretty frightened? A. No, I wasn’t, it just happened. He came right there and showed me the gun and said, ‘Open the drawer,’ so I just opened the drawer.”

In her testimony upon direct examination Mrs. Meyer related the facts concerning the occurrence but was not asked whether she was or was not in fear. Since the evidence did not show that the robbery was accomplished by violence it was essential that it be sufficient to warrant a finding that the taking was achieved by putting Mrs. Meyer in fear of some immediate injury to her person. However, “Fear need not be shown expressly.” State v. Thompson, Mo.Sup., 299 S.W.2d 468, 474. “A presumption of fear will arise from evidence showing reasonable grounds therefor * * 77 C.J.S. Robbery § 45(b), p.487.

We do not construe Mrs. Meyer’s testimony as indicating that she was completely without fear. The fact that she complied with defendant’s demand that she open the cash register would indicate that she feared the consequences of her failure to do so. It is contrary to the universal experience of all mankind to say that a person would experience no fear when confronted with a gun in the hands of a robber. It is a familiar axiom that “actions speak louder than words.” We do not think Mrs. Meyer would have opened the register and permitted the defendant to take the money therefrom had she not been motivated by fear. See our discussion of this subject in State v. Parker, Mo.Sup., 324 S.W.2d 717.

Mrs. Meyer testified that she was “pretty startled.” “Startled” is defined in Webster’s New International Dictionary, Second Edition, as “to excite by sudden alarm, surprise, fear or the like * * It therefore appears that fear is sometimes, if not always, an element of being startled. It will also be noted that Mrs. Meyer denied being “pretty frightened.” The word “pretty” as so used meant “substantially” or “considerably.” We therefore consider her testimony as a denial that she was unduly frightened or terrified but not as an affirmative statement that she was completely without fear. We accordingly rule that the court did not err in overruling defendant’s motion for judgment of acquittal.

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

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.