author: CULLEN, Commissioner.

text:
    James A. RIDINGS et al., etc., Appellants, v. CITY OF OWENSBORO et al., Appellees.
    Court of Appeals of Kentucky.
    April 17, 1964.
    As Modified on Denial of Rehearing Nov. 25, 1964.
    Sandidge & Sandidge, Owensboro, for appellants.
    William T. Carroll, Owensboro, for ap-pellee.
    Wilson & Wilson, Owensboro, amicus curiae.
   CULLEN, Commissioner.

This appeal presents the questions of whether, to make proper the annexation of territory by a city, the territory must be contiguous to the city, and if so, is contiguity existing only through a “corridor” sufficient. The questions are of first impression in this Court.

The City of Owensboro annexed, in one ordinance, two subdivisions located on a public highway (Old Hartford Road) south of the city, one of the subdivisions being 2,200 feet, and the other 3,600 feet, from the city boundary. The ordinance also annexed the highway itself, from the city limits to the farther subdivision. In another ordinance the city annexed a tract of land (which had been purchased by the city as the site for a municipal power plant) located on U. S. Highway No. 60 some 10,000 feet east of the city limits. This ordinance also annexed the highway from the city limits to the tract.

The instant action was brought by two citizens, property owners and taxpayers of the city, suing on behalf of others similarly situated, to enjoin the enforcement of the ordinances. The circuit court dismissed the action and the plaintiffs have appealed.

We consider first the question of whether territory that is not contiguous to a city properly may be annexed by the city. (If contiguity should be held not to be a requirement, then we would not reach the question of whether contiguity existing only by virtue of abutment on a finger or corridor extending radially out from the city is sufficient.)

The Kentucky annexation statutes (except for KRS 81.280 relating to annexation of industrial plants) do not in terms limit annexation to contiguous territory. However, it is our opinion that such a limitation is inherent in the statutes.

The very concept of a city is of a geographical (as well as political) unit. As stated in 37 Am.Jur., Municipal Corporations, sec. 27, p. 644:

“ * * * The legal as well as the popular idea of a municipal corporation in this country, both by name and use, is that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants—that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places. So as to territorial extent, the idea of a city is one of unity, not of plurality; of compactness or contiguity, not separation or segregation. * * * ”

Furthermore, the word “annex” itself connotes the idea of a joining together. In re Annexation to City of Easton, etc., 139 Pa.Super. 146, 11 A.2d 662; Maumee School Tp. v. School Town of Shirley City, 159 Ind. 423, 65 N.E. 285; England y. Eckley, Mo.App., 322 S.W.2d 146.

The substantial weight of authority from other jurisdictions appears to be that contiguity is required even in the absence of a specific statutory requirement to that effect. See 37 Am.Jur., Municipal Corporations, sec. 27, pp. 644, 645 ; 2 McQuillin, Municipal Corporations, 3rd Ed. (including 1963 Cumulative Supplement), sec. 7.20.

The fact that KRS 81.280, relating to annexation of industrial plants, specifically requires contiguity, we think is not indicative of a legislative intent that contiguity is not a requirement of other annexations. It indicates nothing more than that the legislature in that particular statute chose to spell out specifically a requirement that is inherent in the other statutes.

The fact that the legislature did not contemplate noncontiguous annexations is illustrated by KRS 84.040, which requires that wards in cities of the second class be composed of “adjacent and compact territory.”

It is our conclusion that annexation of noncontiguous territory is not authorized by the Kentucky statutes. This construction of the statutes will not, we think, unduly hamper city expansion because in most instances where property near (but not contiguous to) a city has developed to such extent as to be suitable and adaptable for annexation, a reasonable amount of intervening territory, though not presently suitable by itself for annexation, may be annexed with the other property. See Mitchell v. Central City, Ky., 354 S.W.2d 281.

We come now to the question of whether territory may properly be considered to be contiguous if its contiguity exists only through a corridor or finger. We think the answer should be that the' proper contiguity should not he found to exist in such situations unless the corridor or finger itself has a municipal value, i. e., unless it alone serves some municipal purpose. Otherwise, the use of the corridor or finger must be considered a mere subterfuge.

We do not undertake to say that the annexation of a radial highway, alone, never could serve a legitimate municipal purpose, hut in the instant case it is obvious that the annexation of the two highways was for the sole purpose of providing contiguity for the three annexed tracts. No reason or purpose is shown for the annexation of the highways as such.Under these circumstánces it is our opinion that the annexation of the highways was a mére subterfuge, and therefore they cannot supply the necessary contiguity for the three tracts to which they lead.

A number of courts have held that corridor annexation is not proper. See Clark v. Holt, 218 Ark. 504, 237 S.W.2d 483; State ex rel. Danielson v. Village of Mound, 234-Minn. 531, 48 N.W.2d 855; Potvin v. Village of Chubbuck, 76 Idaho 453, 284 P.2d 414; People ex rel. Village of Worth v. Ihde, 23 Ill.2d 63, 177 N.E.2d 313; City of Denver v. Coulehan, 20 Colo. 471, 39 P. 425, 27 L.R.A. 751; Wild v. People ex rel. Stephens, 227 Ill. 556, 81 N.E. 707.

It appears that only in New York and California has corridor annexation been held proper. See Village of Saranac Lake v. Gillispie, 261 App.Div. 854, 24 N.Y.S.2d 403. People ex rel. Forde v. Town of Corte Madera, 115 Cal.App.2d 32, 251 P.2d 988. The New York court gave no reasons for its decision. While the California court gave reasons we do not find them persuasive.

In Texas it has been held that corridor annexation is not void, but the Texas court has indicated that such an annexation may be attacked as an abuse of power and discretion. See State ex rel. City of West Orange v. City of Orange, Tex.Civ.App., 300 S.W.2d 705.

Our view is somewhat similar to that of the Texas court. As hereinbefore stated, we think that the propriety of a corridor annexation depends upon whether the corridor itself has some municipal value or serves some municipal purpose. Obviously, the determination of that question involves some elements of judgment or discretion. Accordingly, it is our opinion that the impropriety of a corridor annexation would not render the annexation void, but only make it subject to being set aside as an abuse of discretion. Such an attack would have to be made seasonably. Cf. Hall v. Noplis, Ky., 367 S.W.2d 456.

In. the instant case the attack was made within three months of the passage of the ordinance annexing the two subdivisions, and before the passage of the final ordinance annexing the power plant site. This was seasonable.

Our conclusion is that the annexations should have been set aside as abuses of discretion, since the three annexed tracts have no contiguity to the city other than through the highways, and the highways themselves have not been shown to be of any municipal value or to serve any municipal purpose.

Our conclusion makes unnecessary any discussion of the question of whether the annexation ordinances were published properly.

The judgment is reversed with directions to enter judgment setting aside the annexation ordinances.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Jessie LUCAS, Administratrix of the Estate of Homer G. Burbank, Appellant, v. Grace SMITH et al., Respondents.
    No. 50580.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.

      Edwards, Hess & Collins, Macon, for plaintiff-app ellant.
    Walter E. Allen, Brookfield, for defendant-respondent.
   STOCKARD, Commissioner.

This is an appeal by plaintiff, administra-trix of the estate of Homer G. Burbank, from an adverse judgment in her suit to quiet title to a certain tract of land in Linn County, Missouri.

Homer G. Burbank and Anna C. Burbank took title to the land on February 8, 1917 as tenants by the entirety. Anna Burbank died on September 15, 1943, while still married to Homer Burbank. On June .1, 1951, Homer Burbank and Grace Smith ¡executed the following instrument, which was recorded on June 7, 1951.

“Partnership Agreement
“This contract and memoranda of agreement made and entered into on this first day of June, 1951, by and between H. G. Burbank of Linn County, Missouri, on the one side, and Grace Smith of Linn County, Missouri, on the other, Witnesseth
“Whereas first party is the owner of twenty-six and one-half (26i/i) acres of land, lying, being, and situate in Linn County, Missouri, as follows, to-wit:
“All of the Southeast Quarter of the Southwest Quarter of Section Four (4) in Township Fifty-seven (57), of Range Nineteen (19), except a strip one (1) rod wide off of the East side thereof; and except Two (2) acres beginning One (1) rod West- of the Northeast corner of said Forty (40) acre tract; thence West Seventy (70) yards; thence South One Hundred Forty (140) Yards; thence East Seventy (70) yards; thence North One Hundred Forty (140) Yards to the place of beginning; also except eleven (11) acres off of the West side thereof, containing 26^/2 acres more or less:
and whereas the parties hereto are desirous of entering into a partnership agreement whereby Second party shall move to the home of first party and shall become his housekeeper, it is agreed between the parties hereto that they will budget the funds received from the United States Government, from the State of Missouri, or any other agency on account of Welfare payments or old age assistance payments or otherwise, which may be received from any state, city, or governmental agency, and said funds shall be used to pay for provisions and to keep up the home and also for insurance and taxes.
“It being understood that second party shall devote her entire time to the taking care of the home situated on the above described property and shall care for same in a good and husband-manlike manner. First party shall be entitled as his own personal funds any sums received for work or labor or otherwise outside of the home.
“It is agreed and understood that the children of second party, to-wit: Lester Clayton Smith and Raymond Leonard Smith, shall be taken care of at all times in the home above mentioned and shall be supported in comfort by the parties hereto, and all sums received from their work and labor at any time shall be put into the funds of first and second parties for the support of the home and to assist in caring for said infants.
“It is agreed and understood that if said first party should die during the existence of this co-partnership, that the above described real estate shall go and be vested in the second party hereto absolutely.
“To all of the above and foregoing we each bind ourselves, our heirs, executors, administrators, and assigns.
“In testimony whereof witness our hands and seals this first day of June, 1951.
“s/ H. G. Burbank
“s/ Grace Smith.”

Homer Burbank died on April 3, 1960, and his daughter, Jessie Lucas, was appointed administratrix of his estate. She listed the tract of land in the inventory, and then requested and obtained an order of the probate court authorizing her to sell the land. She later requested and obtained permission of the probate court to file the present suit to quiet title. In her petition she alleged that at the time of his death Homer Burbank was the owner of the land and that now “she is the owner in fee simple” (but see Section 473.260 RSMo 1959, V.A.M.S., as to the devolution of title to real estate upon the death of the owner), and that the defendants claim an interest therein, the nature and character of which is unknown. She prayed that the court determine and quiet the title and interest of the parties and adjudge and decree that she is “the fee simple owner.” The respondents filed what was in effect a general denial, and also alleged that “Grace Smith received title to this real estate by virtue of an instrument in writing duly acknowledged and recorded and executed by one, Homer G. Burbank, who at the date of execution of such instrument was the owner of said property.” It was then alleged that the other respondents received title to the land by reason of deeds from Grace Smith.

It was with the pleadings as above set forth that the case went to trial. Plaintiff-appellant presented evidence to establish that she was the administratrix of the estate of Homer Burbank, and that she had obtained authority to' bring this action to quiet title to the real estafe. It was stipulated that Homer Burbank and his wife received title to the land as tenants by the entirety in 1917, that his wife died in 1943, and that the land was free from- any deed of trust. Appellant then rested. Respondents offered in evidence the partnership agreement, previously set out, and two deeds from Grace Smith purporting to convey the property to her two sons and their wives. Respondents then offered evidence which, if believed, would authorize a finding that at the death of Homer Burbank the partnership agreement was in effect and that Grace Smith had complied with its terms. In rebuttal, appellant offered evidence that Grace Smith had not properly cared for Homer Burbank. The trial court entered its judgment in which it found “the issues for the defendants,” and it further found that the two sons of Grace Smith and their respective wives were “vested with the fee simple title to the real estate described in the petition” and that “plaintiff has no right, claim or interest in the estate or title whatsoever.”

Appellant contends that the trial court erred because the instrument designated as a partnership agreement was “made for and in consideration of future illicit cohabitation and is an agreement which has the direct effect of promoting sexual immorality.” Such accusation is not supported by the language of the agreement, and there is no evidence from which such result may legitimately be inferred.

Appellant also contends that the trial court erred because the instrument (1) could not have created a tenancy by the entirety, (2) did not create a joint tenancy, and (3) is not a deed and therefore conveyed no interest in the land to Grace Smith. While technical words of grant need not be used, Monroe v. Lyons, 339 Mo. 515, 98 S.W.2d 544, it is essential to a deed that the instrument contain some operative words of grant signifying a present intent to transfer or pass an interest in the land. Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72; Monroe v. Lyons; supra; 26-C.J.S, Deeds § 28. The instrument in this case-provides that “if said first party [Homer Burbank] should die during the existence, of this co-partnership, that the above described real estate shall go and be vested in the second party [Grace Smith] hereto absolutely.” These are not operative words of grant. The instrument does not purport to. pass a present, estate or interest, see Thorp v. Daniel, 339 Mo. 763, 99 S.W.2d 42, and; cannot qualify as a deed. Therefore, it cannot constitute a conveyance of any interest to Grace Smith. We note that on this appeal' respondents do not make the-contention that the instrument is a deed which at the time of execution conveyed a present or future interest to Grace Smith.

Appellant also contends that the instrument does not constitute a will, and we agree because it is not executed according to the law governing the execution of wills. See Section 474.320 RSMo 1959, V.A.M.S. Appellant, also asserts that the instrument is testamentary in nature, and because it does not qualify as a will it is void, apparently for all purposes. The cases cited rule that instruments testamentary in nature are void as deeds. Thorp v. Daniel, supra; Goins v. Melton, 343 Mo. 413, 121 S.W.2d 821 ; Wheeler v. Rines, Mo., 375 S.W.2d 48. However, when we consider the language of the'instrument, which appellant contends is' testamentary in nature, with the terms and provisions of -the remainder of the instrument it is reasonably apparent that the parties intended, and the instrument constitutes, a contract or agreement whereby as a part of the consideration' for Grace Smith performing the duties set out therein she was to receive title to the land if Homer Burbank died while the partnership agreement was still in effect. See Schweizer v. Patton, Mo., 116 S.W.2d 39.

;In- respondents’ brief to this court it is contended that the judgment of the trial court was correct because “courts of equity will- enforce a .contract where a survivor to a, cgntr.act -is.¡to -receive title to' property' owned by the deceased party to the contract and such' contracts are not construed as a testamentary disposition of property.” Appellant admits that this argument was presented in respondents’ brief to the trial court after the close of all the testimony, but appellant points out that respondents did not plead that the instrument was a contract which they were entitled to have specifically performed, and that no such equitable relief was requested. Instead, respondents alleged that Grace Smith “received title to this real estate by virtue of an instrument in writing duly acknowledged and recorded.” We must agree that there was no pleading in which respondents asked for specific performance of .the contract or any other equitable relief.

Civil Rule 93.01, V.A.M.R., provides that any person claiming any title, estate or interest in real property, whether legal or equitable, may institute an action to determine such interest and to quiet title, and “upon the .trial of such cause, if same be asked for in the pleadings of either party [emphasis added], the court may hear and finally determine any and all rights, claims, interest, liens and demands, whatsoever of the parties, or of any. one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in apy other of different action brought by the. parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court, when so rendered shall be as effectual between the parties thereto as if rendered in .any other', different or separate action prosecuted therefor.” This rule must be read in conjunction with Civil Rule 93.04, V.A.M.R., which provides that the. institution, prosecution, trial and determination of suits under Rule 93.01 “shall conform in all respects to the Rules of Procedure covering ordinary civil actions, * * In William H. Johnson Timber & Realty Co. v. Belt, 329 Mo. 515, 46 S.W. 2d 153, in construing what are now Sections 527.150 and 527.160 RSMo 1959, V.A. M.S. and which are in substance the same as Civil Rules 93.01 and 93.04, this court said: “The rules of procedure in suits to quiet title are the same as in other civil actions, and the relief afforded is to be measured by the pleadings in each particular case.” It was then stated that courts of equity have the power to set aside judgments obtained by fraud, and “the same relief that is otherwise available can be obtained in a suit to ascertain and determine title” pursuant to the authority granted by what is now Section 527.150 “provided the pleadings as a whole adequately present such issue, * * In Stewart v. Omaha Loan & Trust Co., 283 Mo. 364, 222 S.W. 808, 810, it was held that “the relief afforded in a proceeding * * * [to quiet title to real property] is to be measured by the pleadings in each particular case,” and the court added that the “ruling seemingly to the contrary in Noble v. Cates, 230 Mo. loc. cit. 202, 130 S.W. 304 ‘that defendants in an action based upon this statute may, under a general denial, show as a defense any title, legal or equitable, vested in themselves,’ does not therefore correctly state the law.” See also Clark Real Estate Co. v. Old Trails Inv. Co., 335 Mo. 1237, 76 S.W.2d 388, 391, and the cases there cited.

In this case all parties asked that the court determine title, but under this request the court had the authority to determine title as between the parties within the issues raised by the pleadings. See Walters v. Tucker, Mo., 281 S.W.2d 843. Respondents did not plead or offer to plead facts which if true would entitle Grace Smith to specific performance of a contract which called for the transfer of the title to the real estate to her. It is true that evidence of the contract and of performance on the part of Grace Smith were offered and received, but no such evidence came in except over the express objection of appellant that it was immaterial to any issue in the case. Several weeks after the trial respondents filed a “Motion to amend answer to conform to evidence,” but it was expressly limited to the ground that “the evidence showed that there was an intention on the part of H. G. Burbank, deceased, and Grace Smith to hold title to the real property described in the evidence as joint tenants.” The request was to amend the answer “by adding a prayer that the ‘Partnership Agreement’ * * * be preformed so as to properly effectuate the intent of the parties.” This motion was denied. We can find no basis for concluding that issues not raised by the pleadings were tried by express or implied consent within the meaning of Civil Rule 55.54, V.A.M.R.

We are not unmindful of the provisions of Civil Rule 83.13, V.A.M.R., which require that on appeal, subject to the provisions of such rule, we are to examine the transcript and award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law, and that unless justice requires otherwise, we shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears. However, we cannot determine from the judgment entered by the trial court whether it reached the result it did on the. basis that the instrument .relied on by respondents vested title or an interest in Grace Smith at the time of its execution, or whether the judgment was entered on the basis that the instrument constituted a valid contract, and that Grace Smith was entitled to specific performance thereof. If the result was reached on the former basis we would, for the reasons previously set out, reverse the judgment. If it was on the latter basis then it necessarily was reached after a determination of facts based on the credibility of the witnesses to which we would give deference. However, if we should purport to give deference to the trial court’s opportunity to judge the credibility of the witnesses, it may be that the trial court never reached that issue.

In a suit to quiet title the court should ordinarily adjudicate title affirmatively as between the parties. Billings v. Paine, Mo., 319 S.W.2d 653. When the record is proper for such adjudication it can be done by the appellate court. However, this is not the situation in this case. Therefore, we remand the case so the parties may, if so advised, amend their pleadings to present the theory disclosed by the evidence. Stouse v. Stouse, Mo., 270 S.W. 2d 822; Yarrington v. Lininger, Mo., 327 S.W.2d 104, East v. McMenamy, Mo., 266 S.W.2d 728.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jerry WASHINGTON, Appellant.
    No. 50588.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Special Asst. Atty. Gen., St. Joseph, for respondent.
    John Peters MacCarthy, St. Louis, for appellant.
   STORCKMAN, Presiding Judge.

A jury found the defendant guilty of robbery in the first degree. Section 560.120 RSMo -1959, V.A.M.S. Pursuant to a stipulation of the. parties, the court found that the defendant had been previously convicted of second-degree burglary for which he had been imprisoned. Therefore, the defendant’s punishment, was assessed by the court and he was sentenced to five years in the custody of the Department of Corrections. Sections 556.280 and 560.135. The principal contentions on' appeal are that the conviction is not supported by substantial evidence because the testimony of the witnesses for the prosecution was so inconsistent that it wás' entirely discredited, that the court erred in admitting certain evidence, and that an instruction given on behalf of the state was prejudicially erroneous.

In determining the sufficiency of the evidence to support the conviction, the appellate court must consider as true the evidence favorable to the state together with all favorable inferences that can reasonably be drawn therefrom, and evidence to the contrary must be rejected. State v. Sykes, Mo., 372 S.W.2d 24, 26[3]; State v. Selle, Mo., 367 S.W.2d 522, 527-528[13].

On Saturday, July 13, 1963, at about 2 a. m., Mozil Lane aged 37, was in the vicinity of Elliott and Gamble Streets in -the City of St. Louis,.,at which time he started walking north', on Elliott Street toward his home. When he was about five houses north from the corner of Elliott and Gamble, he- saw two youngsters he knew sitting on the steps of á‘ building at 1218 Elliott. They were Sheraldine Perkins, 17 years of age, and her boyfriend Jerry Jackson. Mo-zil Lane also sat down on the steps with them. After he had been talking with Sheraldine and Jerry for about fifteen minutes, the defendant Jerry Washington, aged 24, and a man known to Lane as Chili came along. The defendant asked Mozil Lane for money and was told by Lane that he didn’t have any money. Thereupon, the defendant picked up a large beer bottle and Lane got to his feet. As he did so, the defendant’s friend Chili grabbed Lane around the waist from the rear and held both of his arms. While Lane was so held, the defendant struck him with the beer bottle several times on the cheek and about the head, knocking out a tooth and inflicting cuts and bruises. When Lane said he would give them his money, the defendant stopped hitting him. Lane took from his watch pocket four $10 bills which the defendant took from Lane’s hands. The defendant searched Lane further and took his keys, pocket knife, and some additional change in excess of $2. The defendant and Chili then walked on down the street.

Lane went into a nearby house and then on to his own home. He stayed in bed Saturday and Sunday and was taken care of by his mother but did not seek medical attention. On Monday he reported the robbery to the police. Lane knew the defendant and gave the defendant’s name and description to the police. The defendant was arrested on August 2, 1963, and Lane identified him in the police station and again at the trial as the man who robbed him. The defendant was also identified by Sheraldine Perkins.

The defendant testified in his own behalf and denied that he robbed Mozil Lane.- His testimony was that on the night in question he had been gambling at the corner of Elliott and Gamble, that he left the crap game and was walking north on Elliott when Lane tried to stop him and obtain some money from him. This'led to an argument and a fight between the two men, but there was no robbery according to the defendant. London English, Jr., also testifying for the defense, stated that he knew the defendant and that he heard an argument between the defendant and another man which developed into a fight. This was on Elliott Street, three or four doors north of Gamble; he thought it was on a Friday night during the previous summer, but he was not sure of the month or the date. He could not say that the man the defendant was fighting with was Mozil Lane.

Sheraldine Perkins in rebuttal testified in substance that the defendant asked for money and when Lane refused to give him any she and her boyfriend got up from the steps and walked over to a car at the curb about ten feet away so that they could discuss a personal problem. She heard Mozil Lane say, “Take my money; it’s in my watch pocket, but don’t hurt me.” The three men were fighting and moving around. Mozil Lane was trying to get away. She saw the defendant and his companion going through Lane’s pockets. The defendant and his companion then let go of Lane and he fell to the ground. The defendant looked at some papers he had taken, threw them down, and walked away. Sheraldine told Lane to go home and wash his face but did not offer further assistance or call the police.

Direct evidence bearing on the robbery was given by Mozil Lane and Sheral-dine Perkins, but the defendant contends that the entire testimony of each of these witnesses must be discredited and disregarded because of inconsistencies. He cites and relies upon Siegel v. Missouri-Kansas- • Texas R. Co., 342 Mo. 1130, 119 S.W.2d 376, Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 175 S.W. 177, and Adelsberger v. Sheehy 332 Mo. 954, 59 S.W.2d 644. These decisions are not applicable because the unexplained conflicts and inconsistencies in the testimony in those cases left the verdict without evidential support upon a vital point or issue. In the present case the testimony claimed to be inconsistent could be entirely eliminated and a submissible case remain. It is not necessary to review all of the alleged inconsistencies. Recitation of a few of them will demonstrate their nature. For instance, the defendant claims that while on the stand Mozil Lane contradicted himself as to the length of time he had known the defendant. It is claimed that Lane stated that he had last seen the defendant three months before their fight and that subsequently he admitted seeing the defendant during the three-month period and seeing him as a usual winner in gambling games. Also, it is said that Mozil Lane testified that he was knocked out by the defendant’s first or second blow and that he did not know what happened but that he, nevertheless, testified in detail about the alleged robbery. This claim is based upon Lane’s answer to the prosecutor’s question as to the number of times he was hit by the defendant. Lane’s reply was: “Well, that first or second lick had knocked me out because he knocked out my teeth — see—hit me up here (indicating). I was bloody. I don’t know exactly how many licks he did hit me, but I do know he hit me.” His answer to the question was that he did not know exactly how many times he was hit which is understandable even though he were fully conscious. The answer is also susceptible to the interpretation that he was talking about his teeth being knocked out or that he was momentarily dazed while the beating was taking place. At no time did he make the assertion that he was rendered unconscious by the blows and was thereafter insensible to what occurred, as happened in the Siegel case. In fact his testimony was to the contrary. He related how he offered to give up his money and did make $40 available, and how the defendant took from his pockets more money and personal property.

Complaint is made of the testimony of Sheraldine Perkins because she was unsure whether July 13, 1963, fell on a Saturday. The defendant further asserts that Miss Perkins first testified that she heard the defendant twice ask Lane for money and then on cross-examination stated she and her companion had moved away and that she heard nothing until the fight began. The defendant further asserts that there were contradictions between the testimony of Mozil Lane and Sheraldine Perkins.

It is sufficient to say that there was no destructive contradiction in the testimony on any vital point or element of the offense of first-degree robbery. Where the evidence in support of the verdict is substantial, the effect of conflicts or inconsistencies in the testimony of a single witness or between witnesses are questions for the jury’s determination. State v. Spraggins, Mo., 368 S.W.2d 407, 410[4]; State v. Nash, Mo., 272 S.W.2d 179, 183[3].

Further, the defendant asserts that Mozil Lane’s credibility was impeached by a showing of prior inconsistent statements which discredited his entire testimony. The alleged inconsistency was that Lane denied that he had been gambling with the defendant on the night of the robbery, wheireas a statement in the police report recited that he and several other men including the defendant were gambling on the northeast corner of Elliott and Gamble and that he, Lane, lost several dollars. Again this is not a vital point or element in the case. If there is any inconsistency, it goes only to Lane’s credibility and does not necessarily destroy his entire testimony. There was substantial evidence to support the verdict finding the defendant guilty of robbery in the first degree. State v. Pope, Mo., 364 S.W.2d 564, 565-566[1]; State v. Jackson, Mo., 371 S.W.2d 309, 310[2]; State v. Hood, Mo., 313 S.W.2d 661, 663 [3]. The court did not err in failing to direct a verdict of acquittal.

Next the defendant contends that the verdict was against the weight of the evidence because of inconsistencies in the testimony of Mozil Lane and Sheraldine Perkins and because the testimony of London English, Jr., supported the inference that no robbery occurred. These and other similar matters complained of are for the determination of the jury in the first instance and finally the trial court in ruling the motion for new trial. It is not in the province of the appellate court to weigh the evidence where there is substantial evidence to support the finding of the jury and the ruling of the trial court. State v. Williams, Mo., 376 S.W.2d 133, 136[9-11]; State v. Spraggins, Mo., 368 S.W.2d 407, 411[6]; State v. Nash, Mo., 272 S.W.2d 179, 183 [4], There is no basis for interference by this court. The assignment is denied;

The defendant next contends that the court erred in admitting the evidence of Mozil Lane without permitting the defendant to examine for impeachment purposes the police report containing a statement by Lane alleged to be inconsistent with his direct testimony. At the conclusion of the direct examination of Mozil Lane, defendant’s counsel informed the court that before he cross-examined the witness he would “like to see the police report on him.” The prosecutor produced a copy of the report which was in his possession but objected to its use. The court examined the report and permitted defendant’s counsel to see those portions purporting to report in summary form what Lane had told the police officers. The court ruled that the defendant could use the report insofar as it contained any impeaching statements made by the witness to a police officer if a proper foundation was laid. Defendant’s counsel’s objection to Mozil Lane’s testimony on the ground that he had not seen the police report in its entirety was overruled and he proceeded to cross-examine Lane. During the cross-examination, Lane asked for the first time whether he had been gambling that night “around 2:00 a. m.” The witness admitted he had gambled a “little bit on the corner” earlier in the evening, and that he “had been in gambling games” with the defendant during the previous three months, but denied he had been gambling with the defendant on the night in question and denied that he had told the police otherwise. At this point, defendant’s counsel requested that he be permitted to read to the witness a statement from the police report. The court ruled that the information could only he used after a foundation had been laid by the testimony of police officers. The cross-examination continued and, among other things, the witness was interrogated about answers given when his deposition was taken by the defendant.

Patrolman Bobby Fowler of the St. Louis Metropolitan Police Department assisted in the investigation of the robbery and made the report of the defendant’s arrest for the police records. He testified on cross-examination that Lane had told him that he, Lane, had been involved in gambling earlier in the evening when the defendant was present, but the officer could not recall if Lane had said he had gambled with the defendant. Defendant’s counsel was then permitted without objection to have the officer read into evidence the following statement from the arrest report: “‘Lane was then questioned relative to gambling with the arrested subject, Washington, at which time he stated on July 13, 1963, at about 2:00 a. m., he and several other men, including Washington, were gambling on the north-cast corner of Elliott and Gamble. He lost several dollars and then departed. Washington and another unidentified Negro male followed and robbed him.’ ”

The record does not disclose what parts of the police report were not shown to defendant’s counsel, but apparently the court examined the report and determined what portions might have value for impeachment purposes and permitted them to be used. The cases cited by the defendant do not establish that he was denied any right of discovery or process for bringing into court any relevant evidence. On the record before us, the defendant obtained at least as much as he was entitled to under the circumstances, and there is no showing that he was prejudiced in not being permitted to examine the entire police report. The assignment of error is denied. State v. Simon, Mo., 375 S.W.2d 102, 104[1]; State v. Hale, Mo., 371 S.W.2d 249, 253[4]; State v. Gilliam, Mo., 351 S.W.2d 723, 727-728[12]; State v. Crayton, Mo., 354 S.W. 2d 834, 837-838[3]. See also State v. Engberg, Mo., 377 S.W.2d 282, 286[9, 10]; State v. Miller, Mo,, 368 S.W.2d 353, 357 [3-5]; State v. Cochran, Mo., 366 S.W.2d 360, 361 [1], and State v. Redding, Mo., 357 S.W.2d 103, 109[17],

Next the defendant contends that the trial court erred in admitting evidence of the defendant’s punishment by imprisonment for a prior conviction. During the defendant’s cross-examination, he was asked whether he had served time with the Department of Corrections. Out of the hearing of the jury the court sustained defendant’s objection on the ground that the fact of defendant’s imprisonment had no bearing on his truth or veracity. Within the hearing of the jury, the prosecutor asked if the defendant had been with the Department of Corrections in Algoa and the court on its own accord stated that an <>b-jection had been sustained to that question. On further cross-examination, the defendant testified that he was convicted of second-degree burglary in 1957, tampering with a motor vehicle in 1960, and of common assault in 1962. .., .

A person who has been convicted of a criminal offense is a competent witness, but his conviction or convictions may be proved to affect his credibility either by the record or by his own cross-examination. Sections 491.050 and 546.260 RSMo 1959, V.A.M.S.; State v. Wolfe, Mo., 343 S.W.2d 10, 14[5, 6]; State v. Lunsford, Mo., 338 S.W.2d 868, 873 [8]; State v. Hacker, Mo., 214 S.W.2d 413, 416[7], Not only may the fact of a prior conviction be shown but it is also proper to show the nature of the crime and the punishment assessed as matters affecting the defendant’s credibility as a witness. State v. Hood, Mo. 313 S.W.2d 661, 663-664[4]; State v. McBride, Mo. 231 S.W. 592, 593 [3]. If anything, the court’s-ruling was too favorable to the defendant. The situation in the instant case is wholly unlike State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 103 A.L.R. 339, where the fact of conviction was misused in that the state in closing argument urged the conviction as a reason for inflicting the death penalty.

Next the defendant contends that the trial court erred in admitting the testimony of Sheraldine Perkins because her name was not endorsed on the information and because her testimony went beyond the scope of rebuttal and corroborated the testimony of Mozil Lane. At the conclusion of the defendant’s case, the state offered Miss Perkins as a rebuttal witness and the defendant objected because her name was not endorsed on the information. When an information or indictment is filed, it is required both by supreme court rule and the statutes that the names of all material witnesses for the prosecution be endorsed the reon. S.Ct. Rule 24.17, V.A.M.Ri, §§ 545.070 and 545.240, RSMo 1959, V.A.M.S. This court has held, however, on numerous' Occasions that the rule and statutés do not apply'to rebuttal witnesses. State v. Payne, Mo., 342 S.W.2d 950, 954[4, 5]; State v. Ronimous, Mo., 319 S.W.2d 565, 568[8]; State v. Malone, Mo., 301 S.W.2d 750, 758[25]. The court did not err in permitting Miss Perkins to be sworn as a rebuttal witness.

The other facet of defendant’s contention is that the trial court abused its discretion and prejudiced the rights of the defendant because the testimony of Sheraldine Perkins went beyond the scope of rebuttal and corroborated the testimony of Mozil Lane. In the course of his testimony, the defendant stated that there was no such person as Chili, that he did not remember being with anybody else on the .night in question, that he did not remember a young boy by the name of Jerry and a girl by the name of Sheraldine being seated on the steps of 1218 Elliott, that he did not remember demanding money from Lane and striking him while an accomplice held Lane. Contradicting the defendant in these respects was properly within the scope of rebuttal evidence and Miss Perkins so testified. In this and other respects, she tended to corroborate the testimony of Mozil Lane although their testimony did not cover the same scope exactly since Sheraldine did not see any money taken from the person of Mozil Lane even though she saw the defendant searching his pockets.

The scope of rebuttal testimony is largely within the sound discretion of the trial court and, unless the trial court has abused its discretion to the prejudice of the defendant, the reviewing court will not reverse the judgment on that ground even though the evidence is not strictly or entirely rebuttal. State v. Sawyer, Mo., 365 S.W.2d 487, 490-491 [3]; State v. Arrington, Mo., 375 S.W.2d 186, 195[21]; State v. Dees, Mo., 276 S.W.2d 201, 206-207[11], There is no showing that the defendant was surprised and did not have an opportunity to explain or rebut the evidence. The trial court did not abuse its discretion in admitting the testimony.

Instruction No. 1 given at the request of the ■ state hypothesized the facts necessary to a finding that the defendant had committed the offense charged and concluded with- the direction that if the jury so found “then you will find the defendant guilty of Robbery in the First Degree; and you will acquit the defendant if you fail to find all of the aforesaid facts as stated.” The defendant asserts the instruction is erroneous in that “it directed the jury to acquit appellant only if it failed to find ALL rather than ANY of the facts as stated therein, and thus permitted a verdict of guilty on an offense not included in the information against appellant.”

The defendant cites cases holding that the jury must be instructed to find all the essential elements of an offense in order to find the defendant guilty and concludes that “the jury should have been directed to acquit appellant if it failed to find any rather than all of the facts as stated in the instruction.” This substitution would not improve the situation but would make it worse in that it could be argued that the defendant could not be acquitted if any, ;hat is, any single one, of the essential elements of the crime was proved.

The clause, “you will acquit the defendant if you fail to find all of the aforesaid facts as stated”, has been commonly used in such instructions, and State v. Bland, Mo., 353 S.W.2d 584, held that it did not “fail to make clear the jury’s duty to find defendant not guilty if it failed to find the hypothesized facts beyond a reasonable doubt.” 353 S.W.2d 589. In Webster’s Third New International Dictionary, one of the several closely related definitions of the adjective “all” is “each and every one of”. Substituting this definition in the clause we have: “You will acquit the defendant if you fail to find each and every one of the aforesaid facts as stated.” Unless “all” or “each and every one” of the essential facts are found, the. defendant is entitled to be acquitted. The clause is grammatically correct and counsel doubtlessly further expounded during oral argument the burden the instruction placed on the state. The jury could not have been misled.

The instruction also tells the jury the offense may consist of taking “Forty Dollars, or any part thereof however small”. The defendant says this permits conviction of an offense not charged in the information which alleges the taking of Forty Dollars. The statute, § 560.-120, covers “taking the property of another from his person” without regard to the amount In a robbery prosecution proof of the exact value of the property taken is unnecessary if it appears that the property taken had some value since the amount thereof is immaterial. State v. Biven, Mo., 151 S.W.2d 1114, 1117[4-6]; State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, 77 [3-6], The instruction is not subject to the errors alleged.

We have considered all questions presented for review and find them to be without merit The defendant was present throughout the trial including his allocution and sentencing. He was effectively; represented by able counsel throughout the trial and on appeal. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be in proper form and free from error.

Accordingly the judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Donald M. BRUTON, Appellant.
    No. 50071.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    Burton H. Shostak, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
   STORCKMAN, Presiding Judge.

A jury found the defendant guilty of murder in the second degree. Section 559.-020 RSMo 1959, V.A.M.S. The trial court heard evidence in chambers and made a finding that the defendant had been convicted of a prior felony. The punishment was therefore assessed by the court and the defendant was sentenced to thirty years in the custody of the Department of Corrections. Sections 556.280 and 559.030. The principal contentions on appeal are that the court erred in overruling defendant’s motion for acquittal filed at the close of all the evidence because the evidence failed to show the defendant guilty of second-degree murder, that the court erred in instructing the jury on second-degree murder because there was no evidence to support the submission, and that the court erred in giving instruction No. 5 because it was not a proper statement of the law.

During the evening of August 7, 1962, approximately thirty young men and worn-en, many of them teenagers, congregated in the Chain-of-Rocks Park, sometimes referred to as Riverview Park, near the municipal waterworks on the bank of the Mississippi River in North St. Louis. They had come in various motor vehicles and had brought with them cold beer in cans which had been purchased at liquor stores by members of the crowd. At the place in question, there were concrete tables and benches about which these young people gathered drinking beer and talking, according to the record. There was also some evidence that there was a fifth of wine on one of the tables. This area of the park was illuminated by streetlights. At about 11:30 p. m., an altercation occurred during which the defendant stabbed Raymond Glon in the chest with a pocket knife. The blade penetrated the right ventricle of the heart. The victim of the stabbing was taken by his companions to a hospital in St. Louis County where he was pronounced dead on arrival at about midnight. There was medical evidence that Glon died as a result of a massive hemorrhage produced by the stab wound.

The defendant testified and admitted that he stabbed Glon but claimed that he was acting in self-defense when he did so. The jury was instructed on second-degree murder, manslaughter, and self-defense. The sufficiency of the evidence to support the conviction of second-degree murder depends on the circumstances under which the stab wound was inflicted. Eleven persons who were present when the altercation occurred testified on behalf of the state. The defendant was the only witness in his behalf.

In determining its sufficiency to support a conviction, the evidence must be viewed in the light most favorable to the state. State v. Giden, Mo., 369 S.W.2d 212, 214 [5]; State v. Davis, Mo., 367 S.W.2d 517, 519 [2].

William H. Miller, aged 21, and the defendant Donald M. Bruton, aged 24, double-dated on the night in question and rode in Miller’s car. Miller’s date was Joan Piper, aged 17, and the defendant was with Ann Harkey, aged 17, who had been going with the defendant “as his steady”. The two couples first went in Miller’s automobile to the parking lot of the Redwood Restaurant in Ferguson where a number of other young people were assembled. It was here that the larger and later assemblage in Chain-of-Rocks Park was planned. The youngest member of the ill-fated drinking party was a boy 15 years of age and the oldest was 24.

Just prior to the fatal encounter, Raymond Glon was sitting on one of the concrete tables or benches drinking from a can of beer. There was some evidence that he was also drinking wine from a bottle. Ann Harkey had been talking to him at the table. Thereafter, while standing nearby, the defendant and Miss Harkey got into an argument which culminated in the defendant telling her, in substance, if she wanted to go with Glon to do so and to stay away from him. Thereupon, the defendant shoved Ann Harkey towards the concrete table and against Glon causing him to drop his can of beer which went under the table. Glon retrieved the beer, sat back down, and said to the defendant, “Why don’t you lay off of her.” During his altercations with Ann Harkey and Glon, the defendant applied to each of them vile and filthy epithets which need not be repeated here. For present purposes, it is sufficient to say that the defendant in effect asked Glon whether he was looking for trouble and Glon responded that he did not want any trouble with the defendant. The defendant suddenly lunged at Glon and stabbed him in the chest. Ail of the witnesses to the encounter except the defendant testified that at the time Glon was stabbed his arms were at his sides with nothing in his hands. John August Beck threw his arms around the defendant, pinning his arms. As he struggled to get free, the defendant shouted to Glon, “I’ll kill you and I’ll get her later.” Ann Harkey ran away and hid in some nearby woods. Glon did not strike at the defendant at any time. After he was stabbed, Glon staggered back several steps against a tree and finally fell to the ground. He was taken to the hospital by some of his companions. He was unable to make a statement before he died.

After the defendant quieted down and was released by Beck, he, Bill Miller, and Joan Piper looked for Ann Harkey in the park and elsewhere. Then at the defendant’s suggestion, Miller drove to a high-wire fence enclosing a pond which was part of the property of the municipal waterworks. The defendant wiped blood from the knife which he had used and threw it over the fence. It fell in grass near the pond where it was later found by a police officer. Miller left the defendant at a bar and went home. The next morning Miller received a call from the defendant, met him on a parking lot of a shopping center and took him some clean clothes. After they had something to eat, the defendant went to a barbershop and got a crew cut. Previously he had worn his hair long in a so-called Hollywood style. The defendant then went to his home where he was arrested by the police.

The defendant’s testimony tended to corroborate much of the state’s case. The chief difference was the defendant’s assertion that after he pushed Miss Harkey against Glon causing him to spill his beer, Glon said in effect if he was not the defendant’s friend he would “whip his head”, that this made the defendant “sort of mad” and he retorted, “Who are you going to whip ?” With this Glon jumped up from the table, grabbed a wine bottle, raised it to shoulder height, and made a threatening motion. When Glon did this, the defendant took his knife from his pocket and opened it, whereupon Glon said, if you want to fight with knives, I’ll get one too and reached into his pocket. As Glon started to pull his hand from his pocket, the defendant stabbed him. The defendant testified that Glon was of a violent and turbulent nature, but there was no other evidence’ to that effect. On cross-examination, the.defendant admitted that he had pleaded, guilty, to a charge of assault with intent to do great bodily harm- and wfts sentenced to imprisonment in the reformatory from which he was released in 1958.

Murder in the second degree is the killing of a human being wilfully, pre-meditatedly, and with malice aforethought, but without deliberation. State v. Strong, Mo., 339 S.W.2d 759, 764-765 [4]; State v. Archer, Mo., 328 S.W.2d 661, 665 [2]: The court instructed the jury on second-degree murder, manslaughter, and self-defense. To justify reducing a homicide from murder to manslaughter, there must be a sudden unexpected assault, encounter, or provocation tending to excite passion beyond control. State v. Clough, 327 Mo. 700, 38-S.W.2d 36, 38 [1]. There was no such evidence in this case. At most the defendant’s, testimony tended to establish a case of self-defense. The evidence favorable to the state was substantial and convincing; it was clearly sufficient to support a finding of every essential element of murder in the second degree. State v. Archer, Mo., 328 S.W.2d 661, 665 [4] ; State v. Vincent, Mo., 321 S.W.2d 439, 442 [5]; State v. Strong,. Mo., 339 S.W.2d 759, 765 [7]; State v. Bounds, Mo., 305 S.W.2d 487, 489-490 [4]. The court did not err in overruling defendant’s motion for an acquittal at the close of all the evidence.

A related and dependent contention is that the trial court erred in giving and reading to the jury instruction No. 3 submitting murder in the second degree because there was no evidence to support such a submission. In view of our holding that the evidence is sufficient to support the conviction of murder in the second degree, the contention is without merit and is denied. State v. Vincent, Mo., 321 S.W.2d 439, 442 [7].

The defense of self-defense was submitted to the jury by instruction No. 5, the first paragraph of which explains the nature of the right and tells the jury that if the defendant had reasonable cause to believe that Raymond Glon was about to take his life or do him 'some' great personal injury then the defendant “pught to be acquitted on the ground of self-defense”. The defendant contends that the quoted phrase is- not a direction that the jury must or should acquit the defendant upon a proper finding, hut that the jury could find the issues in favor of the defendant and nevertheless convict him.

In State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, a similar contention was made with regard to an instruction submitting the defense of insanity and this court in ruling the question stated: “ ‘Ought’ expresses bounden duty as well as moral obligation, and carries the idea of conscientious compliance. To be sure, ‘must’ is a stronger word because signifying compulsion or necessity. See Webster’s International Dictionary, pp. 1616 and 1730. But a jury capable of understanding the evidence and finding the facts would encounter no difficulty in determining its duty under an instruction stating that upon finding certain facts they ‘ought’ to acquit or convict. The objection urged is hypercritical.” 274 S.W.2d 308.

The defendant seeks to avoid the effect of the Reese decision by urging that the development of criminal law in the decade since the case was decided has provided more and more safeguards to preserve the rights of a person accused of crime, some of which may seem hypercritical. The meaning of the word “ought” has not changed in any manner that would justify a different result.

Webster’s 3d New International Dictionary, recently published, states that ought is “used to express moral obligation, duty, or necessity” and that “OUGHT, SHOULD, MUST, and HAVE can all function as verbal auxiliaries meaning to be bound.” In the early case of Life Association of America v. Board of Assessors of St. Louis County, 49 Mo. 512, this court discussed the obligatory force of the word ought as used in various places of the Constitution and stated: “These are all positive injunctions which cannot be denied, and their obligatory force would be in nowise strengthened by inserting the word ‘shall’ for ‘ought.’ ”' 49 Mo. 519.

Our examination of all the instructions has led us to conclude that the use of the word “ought” in instruction 5 could not have confused or misled the jury and did not constitute prejudicial error. The as-: signment is denied.

We have considered all questions presented for review and find them to be without merit. The defendant was present throughout the trial including his allocution and sentencing. He was effectively represented by able counsel throughout the trial and on appeal. We have also examined the parts of the record and entries designated in S.Ct.Rules 28.02 and 28.08, V.A.M.R., and find them to be in proper form and free from error.

Accordingly the judgment is affirmed ■ '

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Earl Vandyne WORLEY, Appellant.
    No. 50842.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Earl Vandyne Worley, appellant, pro se.
   EAGER, Judge.

On October 19, 1962, defendant was found guilty by a jury of illegal possession of a narcotic drug. Upon a finding by the Court of prior felony convictions, he was sentenced to imprisonment for a term of ten years. The judgment was affirmed upon appeal, the opinion of this Court appearing at 375 S.W.2d 44. On or about May 1, 1964, defendant filed in the Circuit Court his motion to vacate the judgment and sentence, pursuant to our Rule 27.26, V.A.M.R. On May 7, 1964, this motion was denied in an order which will be referred to later. The present appeal is from that order.

By reference to our prior opinion it will be seen that the arresting officer, attracted by suspicious actions of the defendant, ordered five men out of a car, questioned them briefly, and then noticed a “small brown paper package” on the floor in front of the rear seat of the car; the officer picked it up and asked “to whom it belonged.” This officer testified at the trial that defendant said that “it was his” and that he had bought the contents earlier that evening; thereupon he was arrested. The contents proved to be marijuana. Defendant offered no evidence at the trial. The principal questions decided were that the circumstances constituted sufficient evidence of the corpus delicti to justify the admission of defendant’s statements, and that these, together with his statements, warranted an inference of possession and supported such a finding. Defendant was represented both at the trial and on appeal by competent appointed counsel, and a brief was filed here on his behalf.

We quote in full the points submitted by defendant in his motion to vacate: “(1) The trial and conviction of this movant was based on a perjured testimony knowingly procured by the prosecuting attorney. (2) Movant was denied the right to have witnesses in his favor. (3) Movant was denied the right to councel at his preliminary hearing. (4) Movant was arrested and detained over twenty (20) hours without a warrent being issued. (5) Prejudice jurors were also used to obtain a conviction against this movant, the same being a relative to the prosecuting attorney.” In his pro se brief filed here defendant alludes to other matters, to which, in so far as they may constitute actual statements of fact, we shall refer.

As stated in the case of State v. Statler, Mo., 383 S.W.2d 534, opinion filed October 12, 1964, we recognize that a judgment obtained by the knowing use of perjured testimony should be vacated upon a proper factual showing, but not upon the statement of mere conclusions. The applicable authorities were cited in that opinion. There would be no point in discussing the cases which defendant now cites, supposedly in support of that rule. The rule also applies where the State, knowing at the trial that material false testimony has come in, fails to correct it. Statler, supra. In the present case defendant states that the arresting officer, Fred Abernathy, testified at his preliminary hearing that he found the package on the ground under the car; further, that the transcripts of the 'preliminary hearing and of the trial “will substantiate” the allegation. In his brief here defendant also asserts that at the preliminary hearing the officer did not mention any admissions made by the defendant. In the order of the trial court denying this motion (without hearing evidence) the following appears: “ * * * the movant states in the application ‘the transcript of movants preliminary hearing and the transcript of movants trial will substantiate each and every word of the foregoing allegation and will prove that movant was convicted solely qn perjured testimony; and that such testimony was procured knowing.ly by the prosecuting attorney.’ This allegation shows on its face that it’s based upon ■and sought to be proven by the transcript of- the records in the preliminary trial and the Circuit Court trial and is not based upon or sought to be proven by any proof outside such transcripts that will be introduced. .An examination of these transcripts does not prove or show that the Prosecuting Attorney, knowingly used any perjured testimony, or suborned any perjured testimony, .or suppressed any testimony in the trial of this cause, * * * In the Eaton case the application .showed that the proof of the ■ use of such perjured testimony by the Prosecuting Attorney was to be shown by matters not of record; here the defendant states and shows in his application that he seeks to do it by the transcripts which do not show it.” This order is the equivalent of a finding by the Circuit Court adverse to the assertions of perjury. We so treat it, and the assignment is denied.

The allegation that defendant was denied the right to have witnesses in his favor is elaborated by statements in the argument that defendant supposedly asked his counsel to subpoena the four men who were with him at the time of his arrest and that counsel declined to do so. No action or refusal of the trial court was involved. We decline to rule such a contention by speculating upon the reasons in counsel’s mind, and, so long as counsel was competent, we shall not “second-guess” his decisions.

There is a rather nebulous statement in the brief that defendant asked a different judge at a “pre-trial” conference (the holding of which is at least questionable) to “assist him in obtaining witnesses for his defense” and that the judge agreed to do so. Such statements, even if true, would be insufficient to invalidate the judgment where defendant was then and thereafter at all times represented by counsel, upon whom the burden rested to procure those witnesses whom, he deemed it advisable to •use. A “pre-trial” judge need not act as defendant’s co-counsel.

With this contention there is also presented an argument (in the brief) that defendant was not allowed to “offer evi- ' dence;” in that the trial court “unofficially” advised him' not to take the witness stand. We have examined the original transcript and find the. following.:- defendant’s trial counsel, having advised defendant that in his judgment he (defendant) should not testify, and having met with apparent opposition, placed the defendant on the witness stand under oath, out of the presence of ' the jury; he there repeated his advice with reasons, and defendant first insisted that he wanted to testify, but then relented somewhat; the Court merely informed defendant that he had the right to testify if he wished, but that he knew defendant’s counsel and felt that it would be better to follow his advice; and, finally, that he might do precisely as he pleased. It is obvious from this record that defendant’s decision not to testify was his own.

Defendant complains that he had no counsel at his preliminary hearing. In the recent case of State v. Gagallarritti, Mo., 377 S.W.2d 298, after discussing the applicable federal cases, this court held that under our practice (contrary to the procedure in Alabama and Maryland) no prejudice had resulted to defendant by the waiver of a preliminary hearing, without counsel, and that nothing resulting from that action had been used at the trial against him. There the point had been raised at the trial; here it has not been raised until two years later on an after-trial motion. See also State v. Turner, Mo., 353 S.W.2d 602. The only function of a preliminary hearing in Missouri is to determine probable cause. Defendant here waived no rights, and he lost nothing. The cases of Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, are distinguishable upon the grounds stated in Gagallarritti, supra. Following the preliminary, defendant pleaded not guilty at his arraignment, counsel was appointed and he preserved his full rights to a trial completely unhampered by any waivers ór admissions.

The contention that the judgment is void because defendant was detained for more than twenty hours “without a warrant being issued,” is without merit. The point has frequently been raised as bearing upon the alleged involuntariness of a confession and it is held that such detention does not, per se, invalidate a confession. State v. Bridges, Mo., 349 S.W.2d 214, loc. cit. 218, and cases cited; State v. Goacher, Mo., 376 S.W.2d 97, 103. Here we have no question of the validity of a confession. If defendant wished to attack the validity of his arrest and detention generally, he should have done so by appropriate proceedings prior to or at trial, and certainly it is not shown how this question could possibly have affected the fairness of his trial. State v. Bryant, Mo., 375 S.W.2d 122, 125. The/ point, generally, was ruled adversely to de/ fendant’s contention in State v. Worley, Mo., 371 S.W.2d 221, loc. cit. 222.

An argument is made to the effect that defendant was prejudiced because some juror was a cousin (neither name nor degree of relationship stated) of the wife of the Assistant Prosecuting (Circuit) Attorney; this would be, at most, a matter of trial error which should and must be raised by motion for new trial and appeal. In neither was this matter even mentioned. It is not the function of a motion such as this to operate as a motion for new trial or as a second appeal. State v. Hecke, Mo., 328 S.W.2d 41; State v. Thompson, Mo., 324 S.W.2d 133; State v. King, Mo., 380 S.W.2d 370; State v. Turner, Mo., 353 S.W.2d 602; Taylor v. United States (CA 8), 229 F.2d 826; Holt v. United States (CA 8), 303 F.2d 791; nor can the guilt of the defendant be determined upon such a motion. State v. Thompson, Mo., 324 S.W.2d 133. The latter principle also precludes consideration of some of the conclusions and generalities urged herfe by defendant in his brief. The point now suggested that the jury should'not have been allowed to separate was, if anything, álsb'a matter of trial error. But we find that the transcript of the trial proceedings shows that the Court asked both counsel • if they wanted to keep the jury together and both said “No.” Under these circumstances, there could be no possible error.

Defendant seeks to raise now an entirely new point, namely, that the search of the car was illegal, and that the marijuana was illegally admitted in evidence. He indicates that the trial court overruled a motion to suppress but the record does not show this. In any event, that would have been the proper way to raise the point. This contention was not raised on the appeal and the matter is not now one which will support a collateral attack. State v. Howe, Mo., 364 S.W.2d 546. Moreover, the evidence at the trial showed that the car belonged to one of defendant’s associates. Defendant now states that this was not proven by a certificate of title. In his counsel’s brief on the prior appeal the following was stated: “The automobile in which the narcotic was found did not belong to the defendant but was in fact owned by a Lee Lawrence (T. 37).” One of the officers so testified. Having tried his case on that theory, it ill behooves the defendant to repudiate it now (though such inconsistency is not at all unusual in proceedings of this type). A defendant is not permitted to raise the question of an illegal search of someone else’s property. State v. Green, Mo., 292 S.W.2d 283, and cases cited; State v. Martin, Mo., 347 S.W. 2d 680, 682; State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757. The constitutional limitations upon search and seizure apply only to the owner or to one in possession of the premises or property;

We have discussed all of the substantive contentions. Under these circumstances, it was not necessary for the trial court to hold an evidentiary hearing and it was justified in ruling that from “the motion and the files and records of the case, the defendant was entitled to no relief.” Rule. 27.26.

The order and judgment are affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Jesse STATLER, Appellant.
    No. 50082.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.
    Motions for Rehearing by the Court En Banc Denied Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent
    Jesse Staffer, appellant pro se.
   EAGER, Judge.

This appeal has reached us through a devious and unsatisfactory course. It involves a ruling denying a motion under Rule 27.26, V.A.M.R. to vacate a judgment and sentence, without an evidentiary hearing. Motions for a reconsideration and for a new trial were denied. This Court granted leave to file notice of appeal out of time. The notice of appeal, previously filed but far out of time absent the order, constitutes a most inartistic attempt to appeal from the order in question, but again we indulge in perhaps too great a liberality and consider the' appeal, brought here in forma pauperis.

This petitioner was convicted by a jury of sodomy with a thirteen-year-old boy; upon a finding of prior convictions he was sentenced to a term of ten years in the penitentiary. The verdict was returned on September 17, 1958, and the petitioner was sentenced on January 9, 1959. The judgment was affirmed here on appeal. State v. Staffer, Mo., 331 S.W.2d 526. The principal questions adjudicated on the appeal were (1) the validity of the trial court’s ruling that the boy in question, then fourteen years of age and of a somewhat retarded mentality, was competent to testify; (2) the correctness of the submission to the jury of evidence of an oral confession, and of the adjudication by verdict and judgment that the confession to police officers was voluntarily given; and (3) the sufficiency of the evidence. On each of the first two questions a preliminary hearing was conducted by the Court and the relevant evidence fully heard. The oral confession was held admissible after hearing testimony from the police- officers involved. The defendant insisted that he had never made the confession, but claimed further (at least in his motion for new trial) that if it were made, it was induced by a promise of leniency. Since no brief was filed on the appeal, this Court considered the assignments of the motion. The actions of the trial court were affirmed in all particulars; this Court specially noted that it was proper “to leave the issue of voluntariness (of the confession) to the jury 'on the totality of the circumstances,’ ” and found that there was substantial evidence to support a finding of voluntariness. No complaint was made of the manner in which the issue was submitted to the jury. At the trial the only substantive evidence, aside from the confession, came from the boy involved (whose name was withheld upon appeal because of the nature of the case) and from a boy companion, “Tommy.” It is obvious that if the boy’s father testified at all his evidence was merely incidental.

On November 27, 1962, the defendant (and we shall refer to him as such) filed in the Circuit Court of the City of St. Louis, with leave to file in forma pauperis, his present motion to vacate the judgment and sentence. This was denied on December 20, 1962. In that motion defendant alleged in substance: that the information should be quashed because of facts subsequently discovered; more specifically, that it was based on statements made by Thomas Coleman; Sr. (the boy’s father) who had no actual knowledge of the crime, but relied on hearsay; that defendant is innocent and that his conviction was based on false testimony; that the prosecution was caused by a “conspiracy” of Thomas Coleman, Sr. to extort money from defendant; that the said Coleman 'made an effort in July 1960 to call the warden of the penitentiary to tell him that defendant had been convicted on false testimony and “framed.” The record shows that the information was sworn to by the Assistant Circuit Attorney.

Six documents purporting to be affidavits or copies of affidavits were attached to the motion. Four of these are marked in the transcript as “a copy of original affidavit in possession of petitioner.” We cannot tell if any of them were actually originals, but in the view we take this makes no material difference. The after-trial motions and defendant’s pro se briefs here (both of which briefs have been considered) raise the contention that he was denied due process because he was granted no evidentiary hearing on his motion.

The affidavit of Thomas Coleman, Sr. (father of the boy) states, under date of August 5, 1961, that he was a witness in defendant’s case; that prior to defendant’s arrest he had been “misinformed as to the events,” and that upon the strength of this false information defendant was arrested and convicted; that he had since had “many confidential talks” with his son and that he was "thoroughly convinced” that the crime did not take place; also, that he and his son would appear and testify. One Joseph LaChance stated in an affidavit of May 10, 1961, that in July 1960 he heard Thomas Coleman, Sr. state, in a group of people, that the testimony on which defendant was convicted “was of a perjured and false nature,” and that if defendant would pay him $200 he would testify to such fact. Affidavits of Elmer LaChance, William Sprouse and Will Jones were to precisely the same effect. The affidavit of Claude Warren was substantially identical, varying in no material particular.

Defendant seeks in his motion to have the “information” quashed because based on statements made by one (Coleman) who had no actual knowledge. The-verification of the information by a prosecuting attorney may be upon information and belief, as this one is. Section 545.240, RSMo 1959, V.A.M.S. It is only where the information is supported by the affidavit of a private individual that such person must have actual knowledge of the offense ; where the prosecutor verifies the information it may be based “upon such information as he may feel warranted in believing and relying upon.” State v. Stewart, 274 Mo. 649, 204 S.W. 10, 12, and cases there cited. The point is wholly without merit.

The sole remaining point of the motion,, when analyzed, is that defendant is innocent and that he was convicted on false testimony, which in turn was induced by a desire, or “conspiracy,” to extort money from him. Defendant relies upon the “affidavits”' not only to prove these allegations, but to-force an evidentiary hearing. In the briefs filed here defendant adds the further (and new) contention that the oral confession received in evidence was involuntarily made, if made at all, and that its admission constituted a fundamental error depriving him of due process.

The sole question in this matter is whether defendant has stated (by affidavit or otherwise) any facts which raise a bona fide issue as to the constitutional validity of his trial. If “the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief,”' the Court may 'deny the motion without an evidentiary hearing. Rule 27.26. The deluge of such motions now being filed, many of which are wholly without merit, attests to the wisdom of the quoted provision.

It has been held universally that the allegation of mere conclusions presents no fact issue requiring a hearing in these matters. State v. Rutledge, Mo., 317 S.W.2d 365; State v. Ninemires, Mo., 306 S.W. 2d 527; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804; Taylor V. United States (C.A. 8), 229 F.2d 826. When we analyze the affidavits proffered in this case (assuming that they are such) we merely find that the boy’s father, claiming no personal knowledge whatever of the events, states that he was “misinformed” by his son’s young companion, that upon such misinformation defendant was prosecuted, and that, through ■subsequent talks with his son, he had become convinced that the crime did not take place. These statements consist of rank conclusions and personal opinions; moreover, the opinions and conclusions so stated are necessarily based on hearsay. That affidavit, made nearly three years after trial, ■can be of no possible legal effect here, and the statements made in it would be inadmissible if offered in evidence. The other affidavits merely state, repetitiously, that the respective affiants heard Coleman state, nearly two years after the trial, that the testimony in the case was perjured and false, and that for $200 he would so testify. These merely add another hearsay link to the prior hearsay and conclusions. Coleman was not on trial, and such hearsay ■statements could not possibly be admissible. It is significant that there is no affidavit from the boy directly involved or from his ■companion. These two were the only witnesses who testified concerning the actual occurrence, and they are the only persons (aside from defendant) who could have actual knowledge. Neither the affidavits nor ■defendant’s motion state facts which create an issue concerning the use ef perjury (which implies knowledge or wilfulness) or •even the use of false testimony. The affidavit of Coleman is very similar to the one presented in State v. Rutledgé, Mó., 317 S.W.2d 365, where the mother of the boy involved, with no personal knowledgé, stated that she had “’realised" later that the boy’s testimony had been prompted by' a misunderstanding and by pressure.

Not only are these affidavits purely conclusional, but no facts whatever aré shown to indicate that the State knowingly used false testimony, or knowingly failed to correct testimony which it knew to be false. Such a showing is required to justify the vacating of a judgment claimed to have been procured by false testimony. This principle has been clearly announced. State v. Eaton, Mo., 280 S.W.2d 63; State v. Eaton, Mo., 302 S.W.2d 866, cert, denied 355 U.S. 912, 78 S.Ct. 338, 2 L.Ed.2d 273'; State v. Turner, Mo., 353 S.W.2d 602; State v. Ninemires, Mo., 306 S.W.2d'527; Holt v. United States (C.A. 8), 303 F.2d 791; Taylor v. United States (C.A. 8), 229 F.2d 826. It is also recognized in Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed. 2d 9, and the recent case of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, both of which are cited by defendant here, in the latter of which the prosecutor was found to have knowingly used and failed to correct false testimony. This phase of the rule requires a prosecutor who knows at the trial that material false testimony has come in on behalf of the State to correct it then and there. No such element is claimed here. If anyone was put on notice of the possibility of false testimony (which seems a very remote possibility here) at defendant’s trial, it was defendant himself, who alleges a scheme of Coleman to extort $200 from him in lieu of a prosecution. If defendant knew of any such scheme it would certainly have been incumbent upon him to so advise his counsel, and to develop all the facts fully at the trial. See Taylor v. United States (C.A. 8), 229 F.2d 826.

It has univirsally been held that the procedure under such a motion as this may not be used as a substitute for an- appeal, or as a motion for new trial, pr.as a second appeal. State v. Hecke, Mo., 328 S.W.2d 41; State v. Thompson, Mo., 324 S.W.2d 133; State v. King, Mo., 380 S.W.2d 370; State v. Turner, Mo., 353 S.W.2d 602; Taylor v. United States (C.A. 8), 229 F.2d 826; Holt v. United States (C.A. 8), 303 F.2d 791; nor can the guilt of the defendant be determined upon such a motion. State v. Thompson, Mo., 324 S.W.2d 133. And see the recent case of Townsend v. Sain, 372 U.S. 293, loe. cit. 317, 83 S.Ct. 745, 9 L.Ed.2d 770, cited by defendant on other points, where even the elaborate majority opinion (of a 5^4 decision) recognized that there need be no subsequent and collateral hearing if the defendant had received a “full and fair evidentiary hearing” at his trial. The sole purpose of a motion like the present one is to determine whether defendant’s original trial was violative of any constitutional. requirements or if the judgment was’ otherwise void. We hold here that defendant was not entitled to a hearing on his motion by reason of any purported showing of “false testimony.”

Defendant now injects into this appeal the contention that his oral confession was involuntary and that it was thus illegally admitted; no such allegations were made in his motion. We have grave doubts of our duty to consider such a point which was never presented to the trial court in this proceeding (Johnston v. United States (C.A. 8), 254 F.2d 239; York v. United States (C.A. 8), 167 F.2d 847), but with some reluctance we do so. This contention rests upon bare assertions in defendant’s briefs (not in his motion or in affidavits) of interrogation without counsel, of the fact that he was given a lie detector test, and that it was not “proven” that he was advised of his rights. He cites certain federal cases, such as Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948; and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, holding generally that the admission of an involuntary confession is a fundamental error depriving a defendant of due process. It is not necessary to discuss or distinguish those cases here, and we fully recognize the principle. If this defendant received a full and fair hearing on his claims of the involuntariness of the confession at the trial, then the question cannot be relitigated in a collateral proceeding such as this is.

At defendant’s trial one of the principal issues contested and determined was that of the voluntariness of defendant’s oral confession. All questions then raised concerning its validity were adjudicated. Certainly defendant then knew as much about the facts and circumstances of his confession as he knows now, if not more. He was represented by counsel, of whom there has been no complaint. The issue was fully considered again upon the appeal here and the rulings were affirmed. State v. Statler, Mo., 331 S.W.2d 526. Issues which have once been fully adjudicated do not constitute grounds for collateral attack. State v. Morton, Mo., 349 S.W.2d 914; State v. Thompson, Mo., 324 S.W.2d 133; State v. King, Mo., 380 S.W.2d 370. The voluntary nature of the confession has been adjudicated after a full and fair hearing.

Defendant states in his reply brief that while he does not know that the agents of the State knew of any false evidence “such a possibility does exist”; also, that one purpose of a hearing would be to ascertain who conspired to produce a “false conviction” if such a conspiracy did exist. It is obvious that defendant seeks a further hearing in order to conduct a fishing expedition. Assuredly, something more must be shown to justify us in vacating a solemn judgment, rendered after a full and fair trial, and affirmed upon a most conscientious review of the record.

Finding no merit in defendant’s contentions, the judgment and order , of the trial court denying petitioner’s motion to set aside the judgment and sentence is affirmed.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Doris Sylvia GOLDMAN, Appellant, v. Rona Mable RIDENOUR, Respondent.
    No. 50279.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane and Samuel J. Golden-hersh, St. Louis, for appellant.
    William L. Mason, Jr., St. Louis, for respondent.
   PRITCHARD, Commissioner.

Plaintiff’s vehicle being operated by her was struck from behind by defendant’s vehicle on July 21, 1960, on Missouri Highway No. 141 about .8 of a mile south of Clayton Road in St. Louis County. The case was submitted to the jury upon the plaintiff’s theory of defendant’s primary negligence in failing to keep a lookout and upon the rear end doctrine of this state. Defendant submitted her defense (in Instruction No. 3) to-the jury upon the theory that plaintiff suddenly and rapidly decelerated her automobile from 40 to 5 miles per hour, without an adequate warning' of her intention to do so, and was thereby contributorily negligent. Plaintiff’s submission that she slowed gradu-áliy was conversed in defendant’s Instruction No. 4.

The jury returned a verdict for the defendant upon plaintiff’s $50,000 claim for personal injuries, and judgment was entered accordingly. Plaintiff appeals and alleges four grounds of error for which she seeks a new trial.

The first of these is that the verdict of- the jury and the judgment of the trial court were against the weight of the evidence and against the weight of the credible evidence. Plaintiff says the trial court abused its judicial discretion in not granting her a new trial as there was sufficient substantial evidence to sustain a verdict for-the plaintiff. The latter statement may be true, but the law is that even though plaintiff’s version of the occurrence is un-controverted, or defendant introduces no evidence, the matter of the truth of plaintiff’s evidence is in the first instance for the jury to determine, without interference by the court. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 [1]. The trial court here ruled adversely to plaintiff on this portion of her motion for new trial. See Cluck v. Abe, supra, loe. cit. 40 S.W.2d 560 [5], where the court said, “The law is too well settled to need citation of authority that it was within the exclusive province of the trial court to determine whether or not this verdict was against the weight of the evidence. One of the grounds set up in plaintiff’s motion for new trial was that the verdict was against the weight of the evidence. The -trial court determined that question when it overruled the motion and refused to grant plaintiff a new trial. We are powerless to interfere with that ruling because we have no authority to pass upon the weight of the evidence.” Consult also White v. Rohrer, Mo., 267 S.W.2d 31, 34 [1, 2]; Scott v. Gray, Mo., 337 S.W.2d 38, 41 [2, 3]; and Bowe v. Kehr, Mo., 345 S.W. 2d 224, 225 [1]. In plaintiff’s cited case of Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, the trial court granted the motion for new trial on the ground that the verdict was against the weight of the evidence, and the question of whether there was sufficient evidence to make a submissible case was therefore open to inquiry upon appeal as bearing upon the reasonable exercise of discretion by the trial court in the matter. Plaintiff’s first, point is overruled.

By Point II, plaintiff urges that the trial court erred during the voir dire examination by permitting defendant’s counsel, over objection, to instruct on the law, and that he misstated the law. By Point III, plaintiff says that counsel for defendant was permitted, over objection, to propound statements and incomplete statements, by asking the prospective jurors if they would follow the law that if plaintiff was at fault in part or partially at fault, she was not entitled to recover, and thereby called for a prejudgment of issues and thereby prejudiced plaintiff’s right to proceed under the humanitarian doctrine of Missouri.

The voir dire examination of which plaintiff complains was as follows:

“MR. SMITH: Now if the court should instruct you that if the plaintiff herself was at fault in part she would not therefore be entitled to recover, would you follow that instruction of the Court? If the plaintiff herself was partially at fault, she is not entitled to-recover.
“MR. FREDERICKS: Let me object. That is not a complete statement of the law and it is improper on this voir dire.
“THE COURT: Objection is overruled.
“MR. SMITH: I take it none of you have any quarrel with the law of this state, if a person is at fault in the slightest degree, they are not entitled to recover?
“MR. FREDERICKS: I will object. That is a misstatement of the law.
“THE COURT: Sustained. Proceed.”

Plaintiff’s argument in development of her Points II and III is not that the question of and statement to the jury panel that “if the plaintiff herself was at fault in part she would not be entitled to recover” is in itself a misstatement of the law. She says, in argument, that question ignored the fact that she pleaded negligence of the defendant under Missouri’s Humanitarian Doctrine, thereby making the statement incomplete and out of context and thereby a misstatement of the law. Although it is doubtful that plaintiff made a sufficient objection to the question and statement in that she failed to point out to the trial court wherein there was a misstatement of the law (see Supreme Court Rule 79.01, V.A.M.R.; and § 510.210, RSMo 1959, V.A.M.S.), we shall discuss the matter upon plaintiff’s argument in her brief.

The proper procedure was not here used by the defendant to inquire of the jury panel whether they had opinions upon the law of contributory negligence which were so “unyielding as to preclude them from following the law under the court’s instructions.” See State v. Mosier, Mo., 102 S.W. 2d 620, 624 [7-9], where the court said also, “The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly— * * Here, at the outset, the inquiry should have included a proper statement of the law of contributory negligence (i. e., but unsuggested by plaintiff, that plaintiff’s negligence directly contributed to cause the collision, see Myers v. Searcy, Mo., 356 S.W.2d 59, 62 [2, 3]), to which defendant would have been entitled, if the evidence showed such negligence, to meet plaintiff’s alternative charges of primary negligence. Such an inquiry would not be an instruction-to the jury which would cause a prejudging-of the issues, as plaintiff claims-. Counsel should not have, however, in the voir dire examination of the jury panel, ignored plaintiff’s pleaded assignments of humanitarian negligence. Following the procedure of State v. Mosier, supra, he should have included a statement to the effect that:would the jury follow a contributory negligence instruction unless they found that-defendant was guilty of humanitarian negligence. Spindler v. Wells, Mo., 276 S.W. 387, 388 [1]; Collins v. Beckmann, Mo., 79 S.W.2d 1052, 1055 [3].

The error of omission of a reference to defendant’s humanitarian negligence in the voir dire examination was rendered nonprejudicial by plaintiff’s failure to produce evidence that defendant could have, in the time and distance and with the means available to her, with safety to herself, slowed, stopped or swerved her vehicle, or sounded a warning, and thus have avoided the collision. Defendant’s humanitarian negligence was not in this case, and plaintiff would not have been entitled to an instruction upon that doctrine. See Shaw v. Griffith, Mo.App., 291 S.W.2d 230, 235 [5], and cases there cited. In that case it was also said, at page 235 [6], that judicial notice of ability to swerve and avoid a collision with safety to one’s self may not be taken. Plaintiff’s contention that her right to proceed under the humanitarian doctrine was poisoned and prejudiced by defendant’s voir dire examination is without merit. Points II and III .are overruled.

Under Points IV and V plaintiff attacks Instructions Nos. 3 and 4 upon the ground that there was a failure to hypothesize relevant facts as to the distance plan?tiff traveled in reducing her speed- from 40 to 5 miles per hour, which would justify a finding of her negligent conduct, instead of submitting, as was done, the phrase “that the plaintiff then and there caused her automobile to suddenly, if so, and rapidly, if -soj. decelerate Defendant’s version of the fact’s which bear upon the propriety of the giving of these instructions is as follows : Defendant testified that plaintiff and defendant were both traveling south on Highway No. 141, a two-lane highway 20 feet wide. -As defendant came over a hill located south of Clayton Road she first saw plaintiff’s vehicle on the portion of an “S” curve where the curve went to the right. Defendant’s speed was then 45 to 50 miles per hour, and plaintiff’s speed was increasing in her downhill travel. The distance between the vehicles decreased as defendant approached the scene of collision. Plaintiff suddenly “hit her stop lights,” which defendant saw when she was traveling about 40 miles per hour and was about 3 to 3i/¡, car lengths behind plaintiff. Defendant’s vehicle was 16 to 17 feet long. Defendant saw no directional turn signal. Plaintiff’s car was moving at the time of impact, which occurred when defendant hit her brakes and slid under plaintiff’s car, the rear end of which went up when plaintiff suddenly put on her brakes.

William Tucker testified he saw the collision from the front window of his home on Highway No. 141. Plaintiff’s vehicle was traveling at a speed of 50 to 60 miles per hour and defendant’s vehicle was going 40 to 50 miles per hour and was 2 to 21/2 car lengths behind plaintiff. Plaintiff’s vehicle was- about 50 feet north of Mr. Tucker’s driveway, when he first saw it, and the front of plaintiff’s vehicle was about 10 feet north of the driveway at the time of the collision. At the time of impact both vehicles were going between 40 and 50 miles per hour. Mr. Tucker heard plaintiff tell the State Trooper that she was intending to make a left turn. Plaintiff testified that she was traveling at a speed of 35 miles per hour approximately 500 to 1000 yards from the point of impact; that her speed was reduced to 15 miles per hour, then to 5 miles per hour, at which time she was struck-from the rear by defendant’s automobile.

The above testimony is supportive 'of the hypothesis in Instruction No. 3, that “the plaintiff’s automobile was being operated at a speed of approximately 40 miles an hour, and that the defendant’s automobile was being operated at a speed of approximately 40 miles an hour, and that approximately 50 to 55 feet then and there separated these two cars, and that the plaintiff then and there caused her automobile to suddenly, if so, and rapidly, if so, decelerate from such speed of approximately 40 miles an hour to a speed of approximately 5 miles an hour * * * and there failed to exercise the highest degree of care to give a reasonably adequate and timely warning to defendant of plaintiff’s intention to so decelerate her said automobile *' * *,” as constituting contributory negligence. Under these circumstances, the jury could find that when the vehicles were 50 to 55 feet apart, plaintiff suddenly and rapidly decelerated her vehicle from 40 to 5 miles per hour without a reasonable, adequate and timely warning, which at least contributed to cause plaintiff’s injury. See Tucker v. Blankenmeier, Mo., 315 S.W.2d 724, 726 [4], The jury could not have been misled by the use of the words “suddenly” and “rapidly” in this situation. It was not necessary to include in the instruction any hypothesis as to how far plaintiff traveled in decelerating her vehicle.

Instruction No. 4 was a converse of plaintiff’s Instruction No. 2 in which she submitted that she gradually slowed her vehicle from 35 to 15 to 5 miles per hour over a distance of approximately 1100 feet when defendant’s automobile overtook her. Instruction No. 4 submitted that if the jury found that plaintiff did not slow gradually as submitted in Instruction No. 2, but that she slowed rapidly and suddenly from 40 to 5 miles per hour, she was not entitled to recover under Instruction No. 2. We have discussed above the necessity of- including a hypothesis of the distance plaintiff traveled when slowing. Plaintiff points to no other claimed vice in the instruction. Points III and IV are overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.