author: BARRETT, Commissioner.

text:
    STATE of Missouri, at the Relation and Use of BOLIVAR TELEPHONE COMPANY, a Corporation, Relator-Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, and Tyre W. Burton, E. L. McClintock, D. D. McDonald, William Barton and Frank J. Iuen, As Members of Said Public Service Commission, Respondents.
    No. 48869.
    Supreme Court of Missouri. Division No. 2.
    April 9, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied May 14, 1962.
    Lilley, Cowan & Overfelt, Louis W. Cow-an, Springfield, Elvin Douglas, Bolivar, for relator-appellant, Bolivar Tel. Co.
    Glenn D. Evans, General Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for respondents.
    Richard C. Collins, Bolivar, of counsel.
   BARRETT, Commissioner.

This is an appeal by the Bolivar Telephone Company from a judgment affirming an order of the Public Service Commission. The Bolivar Telephone Company is a private utility and under a certificate of public convenience and necessity furnishes telephone service to the city of Bolivar, population 3482 in 1950, and a surrounding rural area comprising approximately one third of Polk County. Its rates and the territorial area served are shown by area maps on file with the commission. There were once two telephone companies in this area but in 1949 an ice storm all hut destroyed the two systems and they were consolidated and the present company formed. Since 1957, largely through loans from the Rural Electrification Administration, the company has furnished dial-operated telephone service to its patrons. The company also has telephone exchanges at Morrisville and Pleasant Hope in the southern section of Polk County. In the eastern one third of Polk County, adjoining the area serviced by the Bolivar Telephone Company, are the communities of Halfway, Polk and Goodson. The villages of Halfway and Polk have customer-owned mutual telephone systems. Since abandoning its mutual service 17 years ago, the Goodson community has no telephone service of any kind. These three villages are the centers of agricultural areas and, of course, all have a community of interest with the county seat, Bolivar. The village of Goodson, 15 miles from Bolivar, consists of a store, a post office and a grade school. Halfway, 10 miles from Bolivar, has two stores, a filling station, two churches and a high school. Polk, 11 miles from Bolivar, has a grade school, a farmers’ exchange, a garage and a filling station. Together these three districts comprise an area approximately 8 miles wide and 18 miles long, north and south. The population of these communities is not made to appear, it is estimated by counsel for the commission that there are approximately “500 potential” telephone subscribers for modern dial service in the area. In any event, 375 residents of these communities filed a complaint requesting the Public Service Commission to make an order compelling the Bolivar Telephone Company to file a revised “service area map” including these communities in its service boundaries, thereby furnishing dial telephone service to the villages of Polk, Halfway, Goodson and their surrounding rural areas at rates paid by Bolivar area residents. The commission made a detailed finding of facts, but the crux of the matter is that the commission has ordered the Bolivar Telephone Company to construct, at a cost of more than $300,000, exchanges at Polk and Halfway and to furnish nontoll dial telephone service to these three areas at rates to be fixed, upon application, by the commission after the installation and operation of the facilities.

The parties have briefed and argued the question whether the commission has jurisdiction and authority under the statutes, particularly Ch. 386, R.S.Mo. 1959, V.A.M.S., to compel a private utility to furnish telephone service to an area outside its certificated franchise area, or outside a territory not embraced “within its profession of service.” The appellant company contends that the present order, in requiring service “beyond its voluntary undertaking and profession of service,” is a taking of its property without due process and is therefore unconstitutional. It also contends that the order is based upon incorrect or unsupported findings of fact, or upon evidentiary matters not included in the record before the commission, and for that reason violates due process. The respondent makes an eloquent plea for the desirability of rural telephone service to “areas unable to support a (modern) telephone system” and consequently for the power and authority of the commission to compel the service. These are all very important problems indeed; they are problems of such magnitude that it is not desirable to consider them until a particular case compels the decision. It is doubtful that the appellant has in fact presented a question of constitutional law. State ex rel. Harline v. Public Service Commission, (Mo.) 332 S.W.2d 940; Southern Bell Telephone & Telegraph Co. v. Town of Calhoun, 4 Cir., 287 F. 381. The parties have cited no recent Missouri cases dealing with the commission’s jurisdiction to compel a private utility to provide service outside its franchised or professed service areas. Cases, excluding railroad cases, dealing with the subject in a very limited general way are State ex rel. Ozark Power & Water Co. v. Public Service Commission, 287 Mo. 522, 229 S.W. 782; State ex rel. St. Louis County Gas Co. v. Public Service Commission, 315 Mo. 312, 286 S.W. 84; State ex rel. Harline v. Public Service Commission, (Mo.App.) 343 S.W.2d 177; California Water & Telephone Co. v. Public Utilities Commission, 51 Cal.2d 478, 334 P.2d 887; Yucaipa Water Co. No. 1 v. Public Utilities Commission, 54 Cal.2d 823, 9 Cal.Rptr. 239, 357 P.2d 295; Nicoma Park Telephone Co. v. State, 198 Okl. 441, 180 P.2d 626. In 31 A.L.R. 333 there is an annotation: “Power of public service commission to require public utility to extend gas service into new territory,” and in 56 A.L.R.2d 413, there is an annotation : “Duty of mutual association, nonprofit organization, or co-operative to furnish utilities services.” Tempting as these problems may be their resoultion is not necessary to a disposition of this appeal and their determination is put aside for a case compelling the decision. The commission’s order in this case is not based upon or supported by competent and substantial evidence in certain very important respects and for that reason alone this judgment must be reversed. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 114, 220 S W.2d 61, 64; State ex rel. Hotel Continental v. Burton, (Mo.) 334 S.W.2d 75, 78.

As stated at the outset, the commission has ordered the Bolivar Telephone Company to immediately construct and operate two new toll-free dial telephone exchanges at Polk and Halfway, at a cost of over $300,-000. Profession of service aside, these are areas in which it has no franchise and in which it has not previously operated telephone exchanges or provided general telephone service. Further the order is that every ninety days the company submit progress reports and after the facilities have been placed in operation apply to the commission to the end that “fair and reasonable rates” may be established. But the company: is “ordered to undertake and carry out the construction of facilities for providing dial telephone service to the Complainants herein on a non-toll basis throughout the area in which the Complainants reside and desire telephone' service.” The order part of the. commission’s “Report and Order” does not indicate just how this rather extensive $300,000 project is to be financed, and, of course, it is not claimed that the commission has the control or direction of any funds that might be devoted to this purpose. There is no evidence in this record as to the value of the Bolivar Telephone Company or as to the nature, extent or availability of its financial resources. Although a railroad case and even though the extension was not required by the court, in the Oregon-Washington Railroad Company case the commission had found that the 185 mile extension would add 1.2 per cent to the railroad’s track system at a cost of between $9,900,000 and $11,700,000 which the Union Pacific Railroad “is found to be in position to make them.” Interstate Commerce Commission v. Oregon-Washington R. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588. Here, from its annual reports over the years (to the use of which the appellant objects), the commission, in its “finding of facts,” sets forth the operating revenue of the company from 1955 to 1959 and that shows a total of $61,515.58 in 1955 and $120,236.76 in 1959. There is nothing in the record, however, as to what became of the operating revenue or how much of it represented profit. There is no evidence as to the indebtedness of the company, the only hint is in the finding of fact that in 1957 the company converted to dial operation “with funds borrowed from the Rural Electric Administration.” In answer to the company’s plea of difficulty in securing funds the commission, in its finding of facts, answers that the company had recently committed itself to the purchase of a telephone exchange in Stockton, in adjoining Cedar County, and that “All the expenditures so far have been made through loans from the Rural Electric Association.” Thus in neither the finding of facts nor in the order is there any substantial evidence concerning the financial resources of the Bolivar Telephone Company or of its ability to initially finance this $300,000 project.

' In its “Discussion and Conclusions” there is the statement, “We understand that the purpose of the Rural Electric Association and the telephone service act (Chapter 31) makes the following provision for extending adequate telephone service to rural areas, such as that in which the Complainants reside.” The commission then quotes in full 7 U.S.C.A. § 922, “Loans for rural telephone service.” It is not necessary to quote that or other related statutes here, it is sufficient to say that, subject to certain specified terms and conditions, the Administrator, under the Secretary of Agriculture, is authorized “to make loans to persons now providing or who may hereafter provide telephone service in rural areas * * Among other admonitions the statute provides that “Loans under this section shall not be made unless the Administrator finds and certifies that in his judgment the security therefor is reasonably adequate and such loan will be repaid within the time agreed, * * It may be noted in passing that even REA organizations and other publicly owned or semi-publicly owned utility organizations have refused to extend their facilities and services, sometimes reasonably (Jordan v. Clarke-Washington Electric Membership Corp., 262 Ala. 581, 80 So.2d 527) and sometimes unreasonably. Annotation 56 A.L.R.2d 413. Perhaps in fairness to the commission it should be said that Bolivar Telephone Company employed an engineer to make a study of these areas, and his study was designed for possible use in applying for an REA loan. It was upon the basis of that study that the commission arrived at an approximate cost of $300,000. Then too, from its own sources and perhaps from what a large number of people may commonly know, the commission may have some knowledge of all these matters that is not revealed by this record. 73 C.J.S. Public Administrative Bodies and Procedures § 123, p. 442. In connection with the engineer’s report, he found that there would be an estimated 497 five-year subscribers for telephone service and that the construction cost would approximate $605 per station. But aside from the company’s lack of desire to incur an additional indebtedness of $300,000 and aside from the problem of the commission’s authority to force the company to seek an REA loan, there is no evidence that a loan has been applied for or if sought that it would or should be approved. Thus, all other considerations aside, there is no evidence upon this record to support the ultimate effect of this order that the Bolivar Telephone Company is financially able or should be compelled to borrow $300,-000, even at 2% interest, to finance this new or additional enterprise upon the mere faith of these indefinite terms and conditions. In this most important respect the order is unsupported by compelling substantive evidence and is therefore manifestly unreasonable. Accordingly the judgment of the circuit court is reversed and the cause remanded for the entry of an appropriate judgment.

BOHLING, and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Rudy Martin CAMACHO, Appellant.
    No. 49245.
    Supreme Court of Missouri, Division No. 1.
    May 14, 1962.

      Robert L. Rodarte, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Charles H. Sloan, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

A jury convicted Rudy Martin Camacho of burglary, second degree, and stealing. (§§ 560.070 and 560.156, RSMo 1959 and V.A.M.S.) He has appealed from the ensuing sentence and judgment of imprisonment in the penitentiary for two consecutive two-year sentences.

Appellant’s first point is that the court erred in admitting in evidence two written statements, signed by appellant (a detailed confession and a statement identifying a police photograph as that of the purchaser of the stolen goods) for the reason that the state did not prove the statements were made voluntarily; that they were not made voluntarily, but were obtained by the use of force and threats.

Prior to the introduction of the confession the court, outside the hearing of the jury, heard appellant’s motion to suppress. Appellant’s counsel examined the two- police officers who took the written statements. The officers testified they took appellant from the county jail to police headquarters; did not recall whether they handcuffed him; advised appellant of his constitutional right not to make a statement and to consult with friends or an attorney; gave him an opportunity to obtain counsel and to make a telephone call for the purpose (but appellant did not request an attorney or accept the offer); that the statements, in question and answer form, were taken by a detective in longhand, typed by a secretary, presented to appellant, read and signed by him; that appellant voluntarily agreed to make the confession, gave the officers “the full story * * * the facts of the burglary” voluntarily, “entirely on his own * * * of his own free will,” and without duress or force to his person; that he was asked but not told to sign it, and when asked if he would sign it said “Yes,” did not refuse, but signed freely and voluntarily, without threats or promises; that the officers did not tell him that if he did not sign it they would “make it rough on him” and bring him before the grand jury, or that other burglary charges would be brought against him if he did not confess to this particular burglary. Appellant testified that although no physical force was used by the officers, they handcuffed him and said no jury would acquit him of the charge; that if he signed the statement they would “go easy” on him; that he refused to sign the statement at first but finally signed it, without reading it “good enough” but just glancing through it, because he was “scared of them making charges on other cases they said they had against” him; that the officers told him they would “bring it to the grand jury,” bring four other burglary charges against him, if he did not sign. After hearing the evidence on the motion to suppress the court ruled there was no evidence to justify the exclusion of the confession; the evidence with reference to the voluntariness of the confession, pro and con, was put to the jury, and the statements were admitted in evidence.

Appellant argues that one officer testified it was possible that he could have threatened appellant, and this officer “did not deny that the confessions were involuntary.” On cross-examination of the officer appellant’s counsel asked whether it was “possible” that he could have threatened to bring other charges against appellant, to which the officer answered that it was possible that he might have made that statement. Considered out of context this answer arouses the intense concern of this Court on review. When read in context, however, it is obvious that the officer was talking hypothetically and meant there was opportunity for him to have done so — that it was within the realm of physical possibility — not that it may have happened. The record shows that the officer repeatedly testified positively that the confessions were voluntary; that he made no threats in obtaining them; that he had no knowledge of any other charges; and that he did not threaten to bring charges against appellant when in fact there were no charges which could have been brought. Finally the court interposed and asked this question to clarify the matter: “In an effort to get this defendant to sign this State’s Exhibit 1, did you tell him that if he didn’t do it that you would cause other charges, even though groundless, to be filed against him?,” to which the officer answered “No, sir.” There is no substance to this argument, and the point is ruled against appellant for the reason that the record contains an abundance of substantial evidence to support a finding that the written statements were voluntarily given by appellant without force or duress, threats or promises, and after appellant was advised of his constitutional rights and offered an opportunity to advise with friends and counsel. State v. Mace, Mo.Sup., 295 S.W.2d 99, 100.

Appellant’s second point is that “appellant was denied a fair and impartial trial by jury because one of the jurors was prejudiced and withheld information during voir dire examination.” On voir dire the assistant prosecuting attorney told the panel that the defense attorney was Mr. Robert Ro-darte, who was pointed out at the counsel table. The panel was asked whether they knew Mr. Rodarte, and was told that Mr. Rodarte was associated in the practice of law with the law firm of Morgan, Thayer & Gum, consisting of George Morgan, Charlotte Thayer and Carl Gum, and asked whether any member of the panel was acquainted with any of the lawyers named. No juror responded and the state’s attorney stated “I take it by your silence that you are not.” At the hearing on the motion for new trial the affidavit of a legal secretary for the law firm was introduced. It stated that in August, 1961 a suit was filed against Theodore W. Welborn (one of the jurors who decided the case now on appeal) and others; that the petition was signed by George H. Morgan, one of the partners in the firm with which Mr. Rodarte was associated in the practice of law; that personal service was had on Mr. Welborn on August 24, 1961; that the matter was satisfied in full and dismissal was filed in circuit court on October 28, 1961; that on October 27 a copy of the dismissal signed by Charlotte P. Thayer was mailed to Mr. Welborn; that sometime during the week of October 30, 1961 Mr. Welborn’s wife came to the law office and requested a signed and stamped copy of the dismissal, which was subsequently mailed to Mr. Welborn; and that on July 27, 1961 lien letters were sent to Mr. Welborn over the signature of George H. Morgan on properties at two certain addresses in Kansas City (apparently properties owned by Mr. Welborn). The circuit clerk’s file, showing that Mr. Wel-born was one of the defendants in case No. 637,040, was offered and the court took judicial notice of the contents of the file. The trial of the case now being reviewed occurred on November 8, 1961. Mr. Wel-born was not produced as a witness at the hearing of the motion for new trial, and the record does not indicate what actual knowledge, if any, Mr. Welborn may have had of the connection'between plaintiff’s lawyers in the litigation in which he was a defendant, and the lawyer for appellant.

Appellant contends there is “no doubt about his prejudice,” although he concedes that “no one except that man knows what he had on his mind.” Appellant complains that if the juror had given any indication about his dealings with appellant’s lawyer’s firm the lawyer would have examined the juror further, and asserts that the court abused its discretion in not granting a new trial on account of the prejudice of the juror. We are not so persuaded. Appellant has failed to show knowledge by the juror of the connection between the attorneys, or that if the juror had such knowledge he wil-fully (as contrasted with inadvertently) withheld the information from court and counsel, or that the juror was prejudiced. This point is devoid of merit.

Appellant’s third point is that “The prosecuting attorney acted improperly in having officers bring rebuttal witness Cervantes into the conference room and in talking to him before putting him on the stand without notifying Albert Cervantes’ attorney who was also representing the appellant.” The only authority cited by appellant for this point is Supreme Court Rules 4.07 and 4.09 V.A.M.R. which relate to legal ethics in the relations between lawyers on opposite sides of a controversy and encroachment by one lawyer upon the professional employment of another. By this point appellant has attempted to establish an impropriety on the part of the prosecuting attorney, but the point made preserves no error on the part of the circuit court. Supreme Court Rule 83.05, V.A.M.R. requires that a point relied on show what “actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous * * (Emphasis supplied.) No action or ruling of the court is complained of, and therefore nothing is preserved for review. If appellant intended to raise the point that the court erred in allowing a rebuttal witness to testify without having had the witness properly subpoenaed, without notifying appellant’s counsel of his intention to call the witness, and without giving appellant’s counsel an opportunity to confer with the witness, no such point was preserved by objection at the trial. The only objection made at the trial was that the state had rested its case; that the case, both for the prosecution and the defense, “was through” and that to counsel this was a surprise. The objection, therefore, was waived.

We have examined the record in connection with those matters which we review even though appellant made no- allegation of error with respect thereto, and have found no error therein.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Henry Allen REDDING, Appellant.
    No. 49066.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.

      Morton D. Baron, St. Louis, for appellant. ¡
    Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of first degree robbery by means of a dangerous and deadly weapon; upon a finding by the court of a prior conviction of a felony, he was sentenced to a term of twenty years in the penitentiary. On this appeal we consider the assignments of a detailed motion for new trial, in so far as those assignments are sufficient under Rule 27.20, V.A.M.R. We have so frequently quoted insufficient assignments, with citations in support of our rulings, that we do not propose to encumber this opinion with such quotations or citations. The assignments not specifically referred to herein are denied for insufficiency.

The evidence for the State fairly showed the facts now recited. John Leuther owned and operated a market at the corner of 39th and Shenandoah in the City of St. Louis known as the “Tom Boy Market.” On Friday evening, December 9, 1960, he and his grocery manager, Agnes Shadley, closed the place at about 8:00 p. m., locked the front door as they departed through it, and proceeded together along the 39th Street side of the building until they reached the west side of a parking lot in the rear. There they separated, Agnes walking on south to her car, while Leuther entered the parking lot and walked east to his car parked near the southeast corner. The lot was well illuminated by a large light. As he approached his car he heard footsteps behind him, so he got in his car rather quickly and shut and locked the door. Immediately a man appeared at the window (later identified as Roy Russell Cook, indicted with this defendant), pointed a .45 caliber revolver at Leuther and said: “You are a wise son-of-a-bitch, aren’t you? I am going to kill you.” After this initial greeting, and other remarks in similar vein, he instructed Leuther to hand him his pocketbook-and get out on the other side; Leuther complied, and as he did so, another man, positively identified at the trial and previously as the defendant Henry Allen Redding, came up carrying a .45 caliber automatic pistol which he kept continuously pointed at Leuther. Cook then went through Leuther’s clothes, took everything but his car keys, and then ordered him back to the store. The two men then conducted Leuther back to the store where they required him to open the front door and then lock it behind them; inside, they forced him to unlock the safe; at this point the defendant, with the pistol and at Cook’s direction, took Leuther to the back of the store, where they waited. Cook soon appeared with the contents of the safe in four canvas bank bags, and together they took Leuther into the meat cutting room, where the defendant continued to hold his pistol “on me.” At that point Cook again threatened to kill the victim and cocked and uncocked his revolver several times while held at his “belly”; defendant, according to Leuther, protested the idea of killing him. Finally they tied Leuther to the door of the cooler and left through the back door of the market. Leuther eventually freed himself, went to a nearby store and had the police called. The evidence showed that $7,820.75 was taken, of which about $620 was in checks and the balance in cash. Two thousand dollars of the money was in new ten-dollar bills, and another $2,000 in used ten-dollar bills, all of which had just been procured from the bank. Approximately $150 was taken from Leuther’s billfold. The men also took four books of American Express money order forms from the safe; the market was a substation for the sale of money orders. The men wore no masks, and Leuther testified that he had ample opportunity to look at the defendant.

Defendant was arrested in his apartment or “flat” at about 8:45 p. m. on December 13, four days after the robbery. At that time the officers found and took a loaded .45 caliber revolver, a loaded .45 automatic pistol, extra ammunition, $400 in ten-dollar bills (of which 21 were new with consecutive serial numbers) and four books of blank American Express money order forms. These things were all marked by the officers at the time and produced at the trial. The details of the arrest will be considered further a little later.

Defendant took the stand and testified that he was in East St. Louis gambling at the time of the robbery; and that he won $500-$600, thus accounting for the money found. He also testified that he had bought the two guns at about 6:00 o’clock on a morning two or three days after the robbery, on the street at Sixth and Market from a man whom he had never seen before ; he further testified that the books of money order blanks were later found by him in the paper sack in which the guns were delivered to him. He denied the robbery. He admitted a previous conviction for statutory rape, a sentence of three years and the serving of the term in the Algoa Intermediate Reformatory.

Defendant’s counsel filed a motion to suppress evidence of the property found in his apartment. Our discussion of the question so raised will also dispose of the same question raised at the trial and in the claim of error in permitting the officers to testify to what they found in the apartment. At the hearing before trial evidence was introduced showing, in substance: that the officers who made the arrest had been assigned to the investigation of this robbery; they had heard the radio report of the robbery and had read the written police report, both of which included descriptions of the robbers, and they had noted that one description fitted this defendant; they had seen defendant and Cook driving around the neighborhood at various times of the day and night, and had noted they were apparently not working; they had learned that after the time of the robbery defendant had traded his car in on a newer one and paid $400 in cash in new ten-dollar bills; on the evening of the arrest they had seen him carrying a TV set out of a store and loading it ■ in the trank of his car; an informer had told two of these officers, after the robbery, that Cook and Redding were spending a lot of money, had bought a car, clothes and luggage, had showed a handful of ten-dollar bills, and that there were money orders at defendant’s home. On the evening of December 13, 1960, two of these officers who were on duty called the third who was off duty, and told him that with the information they had they thought they should make the arrest, whereupon this officer met the other two; one of the three testified that the calling officer added that they should make the arrest “before we lose the evidence.” The officers proceeded to the rear door of defendant’s apartment and knocked; a man said “Who’s there,” and one of the officers answered— “police officers.” There were brief remarks about defendant’s car in the alley, defendant came to the door and opened it, and the officers entered the kitchen; two of the officers were in uniform. One of them immediately told defendant that he was under arrest for the robbery of the Tom Boy Market; he replied, in effect, that they were crazy. The officers searched him for weapons, handcuffed him and then one of the officers told him that they were going to search the house; he replied, — “Go ahead, I have nothing to hide.” In a large, open closet opening off the kitchen, the officers found the four books of money order blanks in the top drawer of a chest of drawers; in the pockets of defendant’s overcoat they found the two loaded guns; and in a woman’s coat they found the forty ten-dollar bills. In the kitchen cabinet they found additional ammunition for the automatic.

Defendant complains here that the arrest was delayed so that evidence might be seized, and that the search extended beyond the room in which the arrest was made; also, that there were no “proper grounds” for the arrest. Admittedly, there was no warrant for the arrest or the search. Defendant has pleaded § IS of Article 1 of the Missouri Constitution, V.A. M.S. and the 14th Amendment to the United States Constitution. We rule, first, that the arrest was lawful. The mere recital of the information which these officers had is sufficient to show that they had reasonable cause to suspect that defendant was guilty of a felony,- — namely, this specific robbery. See, generally, State v. Cantrell, Mo., 310 S.W .2d 866; State v. Edwards, Mo., 317 S.W.2d 441; State v. Raines, 339 Mo. 884, 98 S.W.2d 580. Having such, they were entitled to arrest him. Edwards, supra; State v. Bailey, 320 Mo. 271, 8 S.W.2d 57; City of St. Louis v. Washington, Mo.App., 223 S.W.2d 858; State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551. The officers also had the right to determine, in the fair exercise of their discretion, the time and place of the arrest. The mere fact that they had seen him on the street with the television set some half hour earlier, and that they could, presumably, have arrested him then, is in no way controlling. Nothing was shown here to indicate such an arbitrary exercise of power as to make the arrest invalid.

As an incident to a lawful arrest, officers have the right to make a search and to take articles which have evidentiary value in connection with the crime for which the suspect is arrested. State v. Turner, 302 Mo. 660, 259 S.W. 427; State v. Raines, 339 Mo. 884, 98 S.W. 2d 580; State v. Cantrell, Mo., 310 S.W.2d 866; State v. Edwards, Mo., 317 S.W.2d 441; State v. Wright, 336 Mo. 135, 77 S.W. 2d 459. The right to search applies to a car in which a suspect is or has been riding (Edwards, Cantrell, supra), the house in which he is arrested (Wright, supra) or the premises (Turner, supra); one opinion uses the word “room” (State v. Rebasti, 306 Mo. 336, 267 S.W. 858, 860), and another (Raines, supra) “the place of arrest.” In some circumstances a room constitutes the extent of one’s residence. Certainly the search of a closet opening off of the very room in a residence in which the suspect is arrested is not unreasonable, and we so rule. It is unnecessary to rule the State’s claim that defendant waived this contention by consenting to the search. The preponderance of the evidence indicates that the officers told defendant that they were going to make a search before he said “Go ahead.” We do note that under the circumstances there was hardly a completely voluntary consent. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383. The articles taken in the search were not inadmissible for the reasons assigned, nor was the testimony of the officers. It is likely that defendant by testifying to and attempting to explain his possession of the money, the pistols, and the money order blanks waived the right to insist upon the illegality of the search (State v. Smith, 357 Mo. 467, 209 S.W.2d 138), but we prefer to base our ruling upon the ground that the search was legal in its inception.

Defendant complains of the refusal of the court to require one of the officers to state the name of the police informer from whom they received information. This was a matter resting largely in the discretion of the trial court, as recently ruled in State v. Edwards, Mo., 317 S.W.2d 441. There was no contention here that the informer had participated in the robbery, and there was no error in the ruling.

Complaint is also made that defendant was not given twenty peremptory challenges to the jury panel instead of twelve, because he was charged with an offense “which is punishable by the death penalty, V.A.M.S. 560.135.” Section 546.-180, subd. 2(1) (a) RSMo 1959, V.A.M.S. (applicable to cities of over 100,000) provides : “If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty, and no more; * * Here the State expressly waived the death penalty during the voir dire, as it may legally do. State v. Garrett, Mo., 282 S.W.2d 441. This defendant could only have received a sentence of from five years to life. Moreover the subsection just quoted would appear to be applicable only where the jury has a choice between death and a sentence not less than life, which was not even true here initially.

It is suggested that the sentence imposed by the court here under the Prior Conviction Act, now § 556.280, was improper because defendant had merely served a sentence in the Algoa Reformatory, and because the copy of the record produced did not bear the seal of that institution. The prior conviction was for statutory rape, an offense specifically punishable by confinement in the penitentiary, § 559.260. It is only necessary that the prior offense be so punishable. This point has been specifically ruled in State v. Nolan, Mo., 316 S.W.2d 630, with reference to Algoa. In fact, the statute applies even if the former sentence was served in a city workhouse, if the offense could have been punished by confinement in the penitentiary. State v. Foster, Mo., 251 S.W.2d 675. Since 1957 commitments are made to the Department of Corrections, § 216.208, which Department then determines the place of confinement. If,more were needed, which it is not, the record book identified by a Deputy Circuit Clerk showed that Redding was sentenced on the prior conviction to confinement “in the penitentiary” for a period of three years. A copy of the record from Algoa was offered to show the confinement and discharge. The complaint that the document bore no “seal of the institution” is too trivial to deserve serious notice. We doubt that Algoa has a seal. The authenticity of the record was verified by the affidavit of Ray F. French, Superintendent. That was certainly sufficient. Various cases hold that such records may he certified by the warden of the appropriate institution. State v. Burns, Mo., 328 S.W.2d 711; State v. Garrison, Mo., 305 S.W.2d 447; State v. Peterson, Mo., 305 S.W.2d 695; State v. Romprey, Mo., 339 S.W.2d 746. An affidavit could hardly be of less effect than a certificate. In any event no prejudice could have resulted to defendant here for he admitted in his testimony the prior conviction, sentence and confinement.

The contention that photographs of the premises were improperly admitted because taken under different conditions is denied. The contention is obviously based on the fact that the photographs were improper because they were taken in daylight. Such objections merely go to the weight of the evidence and any differences in conditions may be developed in the evidence. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 107; State v. Johnson, Mo., 286 S.W.2d 787, 791-792. On relevancy, generally, despite the existence of oral descriptions, plats, etc., see State v. Brown, Mo., 312 S.W.2d 818, 821-822; State v. King, Mo., 334 S.W.2d 34.

Claim of error is also made in that Mr. Leuther was allegedly not “qualified” to testify that the revolver and pistol produced were the “same guns,” and that his evidence was hearsay and without proper foundation. Leuther had an opportunity to observe the guns over a rather considerable and important period of time. There is no question of hearsay. He said as to Cook’s revolver: “It’s the same gun that Cook held on me all the time.” As to the automatic he said: “That’s * * * the one that Redding carried. It’s the same gun.” Then, on a question by the State’s attorney asking if the latter was the same “type” of gun, he said “Yes.” This question and answer did not destroy the effect of his positive identification. The weight of this evidence and the “qualification” of the witness (if such a question there be) were for the jury. The testimony was admissible and it was certainly sufficient to render the exhibits admissible. Less identification than this has been held sufficient. State v. Johnson, Mo., 286 S.W. 2d 787, 791. See also State v. Pruett, Mo., 342 S.W.2d 943.

During the cross-examination of Mr. Leuther counsel moved for the production of any statements taken by the police from him. This request was denied, the prosecutor stating that he had no statement which he intended to introduce in evidence, and that any such statements would be confidential. Error is assigned in that defendant was thus supposedly deprived of the full right of cross-examination. We are unable to tell from the motion for new trial or the oral request whether reliance was placed on § 510.030 appearing in our Civil Procedure, or on Criminal Rule 25.19. The latter presupposes the issuance of a subpoena duces tecum, and none was shown here. In State v. Kelton, Mo., 299 S.W.2d 493, the court said, loc. cit. 497: “Assuming, without deciding, that defendant would have the benefit of Section 510.-030 RSMo 1949, V.A.M.S., pertaining to the production of documents and papers in civil cases, she did not bring herself within the terms of the statute. The application was oral and there is no showing that the written statement contained evidence material to the merits or defense of the action. ‘A mere suspicion that it contains such evidence does not warrant an order for its production.’ State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W.2d 459, 462 [2, 3], The production of books and papers under the statute ‘is not authorized upon the possibility of the impeachment of witnesses or for prying into an adversary’s preparation for trial.’ State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 289[6].” See also State v. Brown, 360 Mo. 104, 227 S.W.2d 646. And a somewhat analogous situation was discussed very recently in State v. Crayton, Mo., 354 S.W. 2d 834.

Edward Kelly, a' special agent of the 'American Express Company, identified certain original “trust receipts” of that Company which showed the delivery to Leuther’s- Market (as a siib-agent) of the specific books of money order blanks found-in defendant’s apartment, and later produced at the trial. Defendant’s counsel objected to Mr. Kelly’s qualifications and the objection of hearsay has been preserved in the motion for a new trial. From Kelly’s testimony it may reasonably be inferred that 'the investigation by his company of the stolen money order- blanks had been assigned to him. 'He testified: that he was required to be familiar with all phases of the business, and that he was an1 “inspector of everything that happens in the particular office that the Tom Boy Market was a sub-agency; that when money orders 'were delivered to such an agency receipts were taken, identifying the particular money orders; that the exhibits in question were such “trust receipts,”' and that each receipt here bore the agency number 958. The police returned the stolen' books to Kelly. This witness also identified the books themselves, but these were specifically identified by one of the officers and Kelly’s identification could only have been cumulative. Our statute, § 490.680, provides for the identification of such records by “the custodian or other qualified witness,” and by its very terms leaves considerable discretion in the trial court regarding the qualifications of the witness and “the sources of information.” Rossomanno v. Laclede Cab Co., Mo., 328 S.W. 2d 677. And “to construe the act too strictly would be to repeal it.” Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W. 2d 663, 666, 55 A.L.R.2d 1022. This witness was familiar with the procedure used concerning these receipts, he produced the original records, and he was presumably in charge of this particular investigation which necessitated his familiarity with the records. It has been said that slight evidence is required other than “the presumption of regularity that arises from a showing” of the document’s source. Hermann v. St. Louis Public’ Service Co., Mo.App., 345 S.W.2d 399, 405. There was no error in admitting Mr. Kelly’s testimony or the receipts and books.

The only assignment regarding instructions which could possibly be considered as specific within our rule is the one addressed to the State’s Instruction No. 1. This very generally followed the wording of the indictment and required the jury to find that defendant “by means of a dangerous and deadly weapon,” a pistol, feloni-ously made an assault upon Leuther, put him in fear' of “immediate injury to his' person,” and by force and violence took $7,323 in money and $700 in checks, “all of the'money, goods and property of the said John Leuther” from his person; in his presence and against his will, with force and violence and did feloniously rob, steal' and carry away the property with the felonious intent to deprive the owner théreof.' This instruction-is said to be confusing and difficult to follow, with the elements of the Crime not “spelled out.” The language is somewhat antiquated, but the instruction contains all the elements of the crime charged (§ 560.135) and the jury could not well have been misled. Similar instructions were approved in State v. Baldwin, Mo., 281 S.W. 940, and State v. Newland, Mo., 285 S.W. 400, and the form, generally, is often used. We are hopeful that within the foreseeable future the forms of criminal instructions may be simplified, but we find ho prejudicial error here. It is also said that the value of the property taken was slightly less than the total amount stated in the instruction. This is immaterial, State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, for in a robbery prosecution it is not even necessary to prove the exact value of the property taken. The contention that the phrase “all of the money, goods * * * 0f * * * Leuther” was prejudicial as indicating that this was all the money he had is without foundation.

The assignment that the motions for a judgment of acquittal should have been sustained is completely refuted by the mere recital of the State’s evidence.

A point is made on the State’s closing argument. Mr. Leuther had testified that he saw certain policemen “dust around the safe and cooler door” for fingerprints, but that he did not know whether they found any. Only one brief excerpt from all the arguments is set out in the transcript. It is as follows: “ * * * Now, as to testimony that there were no fingerprints: and why? That is what is known as negative evidence. And Mr. Baron would have objected to it had—

“MR. BARON: Obj ection, Your Honor. He is talking about testimony that would have been, and said I would have objected to it. I might have welcomed it.

“THE COURT: Overruled.

“MR. BANTLE: That is what is called negative evidence, and that we aren’t permitted to produce. Consequently, it wasn’t a matter that could have been testified to by anybody. If I had been able to produce such evidence, I would have been happy to produce it for you.” It seems probable that these remarks were retaliatory and directly related to some argument made by defendant’s counsel: If so, they would not constitute error. But, in any event, the remarks could not have been prejudicial. With all the direct evidence produced here, the question of fingerprints was more or less of a “red herring,” and the jury could hardly have thought otherwise.

The fact that the verdict found defendant guilty as charged “on information,” instead of on indictment, was wholly immaterial and in no way impaired the validity of the verdict. State v. Taylor, 261 Mo. 210, 168 S.W. 1191, 1195; State v. McBride, Mo., 231 S.W. 592, 594.

We find no prejudicial error in those parts of the record which we examine independently of a motion for new trial under Rule 28.02. The judgment is affirmed.

All of the Judges concur.

      . All statutory citations will be to that revision.


author: PER CURIAM.

text:
    Lucy McGRAIL, Plaintiff-Respondent, v. Sadie T. SCHMITT, nee Rhoades, and Margaret Wallow, Defendants-Appellants.
    No. 48389.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.

      George H. Jones, Kansas City, Clarence C. Chilcott, Kansas City, for appellants.
    Donald E. Raymond, Kansas City, Thomas M. Howell, Kansas City, for respondent.
   PER CURIAM.

This is the second appeal of a suit to contest the will of James Robert McGrail, deceased, who bequeathed his daughter Lucy $500 in cash, and the residue of his estate (consisting of oil leases worth upwards of $33,000) to his two surviving sisters. The first amended petition to set aside the will alleged (1) undue influence on the part of the sisters, (2) general mental incapacity of testator by reason of alcoholism, and (3) an insane delusion that Lucy was not his child. At the first trial the contestant, Lucy, submitted her case solely on the theory of insane delusion, and the jury returned a verdict setting aside the will. On the first appeal this Court reversed the judgment based upon that verdict and remanded the case, because the record did not contain sufficient evidence indicative of an unsound mind, corroborative of the evidence of delusion, to permit the jury to draw the inference that testator was insane with respect to this one subject and therefore lacked the requisite capacity to make a will. McGrail v. Rhoades, Mo.Sup., 323 S.W.2d 815. At the second trial the jury again rendered a verdict setting aside the will. The defendant sisters have appealed from the judgment rendered upon that verdict.

At the second trial the contestant abandoned the issue of monomania as an independent ground of recovery and submitted the case to the jury on the issue of general testamentary incapacity. The specific question submitted at the second trial was whether at the time of signing the paper writing testator had sufficient mind and memory to know and understand the ordinary affairs of life; that he was disposing of his property by will; the kind and extent of his property, the persons who were the natural objects of his bounty, their relation to him and his obligation to them; their deserts, with reference to their conduct and treatment of him, their capacities and necessities; that he was giving his property to the persons mentioned in the will, and that he had sufficient mind and memory to know these things without the aid of any other person. The jury was also instructed that even if testator drank to excess, to such an extent as to weaken or impair his mental faculties, yet if he was “sufficiently sober and sufficiently in possession of his mental faculties to know and understand and comprehend the fact that he was signing and publishing and declaring said paper as his will, and so as to understand and comprehend the nature and extent of his property, and who- were reasonably within the range of his bounty, and to whom he was giving and how he was disposing of his property, without the aid of any other person,” then the jury should find that he had sufficient mental capacity to make a will. Plaintiff expressly withdrew the issue of undue influence.

On this appeal appellants, proponents of the will, initially make the point that the court erred in submitting the cause to the jury because the evidence failed to disclose that testator did not have testamentary capacity, or that he suffered from an insane delusion that plaintiff was not his daughter at the time the will was executed or at any other time.

The first amended petition was not further amended at the second trial, and as indicated it alleged as an independent ground for setting aside the will that testator suffered from this insane delusion. Corroborative evidence of brutality and aversion, lacking at the first trial, was introduced at the second. Although this evidence was remote (violent shaking of the child and numerous instances of forcible twisting of her arm while muttering that she was not his child, supposedly occurring between 1916 and 1925) it was substantial corroborative evidence in support of the theory that testator had a mania on the subject of the paternity of Lucy. While contestant did not go to the jury on the issue of insane delusion as an independent ground of setting aside the will (the instructions did not mention insane delusion), the facts in connection therewith are circumstances which should be taken into consideration, along with all other relevant circumstances, in determining whether a submissible case of lack of general testamentary capacity was made. “The question of mental capacity involves whether the testator’s mind was in such condition that he recognized his obligation to the objects of his bounty and their relation to him.” Everly v. Everly, 297 Mo. 196, 249 S.W. 88, 91. “If one cannot recall or comprehend * * * the obligations he morally owes to, the natural objects of his bounty, he cannot be said to have testamentary capacity.” Ray v. Walker, 293 Mo. 447, 240 S.W. 187, 192. See Hardy v. Barbour, Mo.Sup., 304 S.W.2d 21, 35.

Appellants introduced evidence of the due execution of the will, and of the testamentary capacity of the testator at the time he signed it, thus shifting to contestant the burden of going forward with the evidence and producing substantial evidence of testamentary incapacity. Hardy v. Barbour, supra, 304 S.W.2d 21, and cases cited, 1. c. 25.

In determining whether respondent-contestant made a submissible case of general testamentary incapacity we will disregard . appellants’ evidence unless it aids respondent’s case; accept respondent’s evidence as true and give her the benefit of every inference legitimately to be drawn from it, Hardy v. Barbour, supra, 304 S.W. 2d, 1. c. 25; Norton v. Jonson, 359 Mo. 1214, 226 S.W.2d 689, 706, and determine whether the evidence, “considered most favorably to the result reached by the jury, is substantial evidence from which the jury could reasonably reach the result it did.” Machens v. Machens, Mo.Sup., 263 S.W.2d 724, 734. The evidence, thus considered, follows:

At the age of about 30 years, on April 17, 1915, Bob McGrail married his first wife, Bly. Three days short of nine months later, on January 14, 1916, Lucy was born. When she was three months old Bly heard her crying in the next room. There she found Bob shaking Lucy, with a sort of a funny laugh, with his head “kind of falling back.” Bob “practically had shaken the life out of the child * * * almost killed that baby.” Bob did not like the child. He muttered something which Bly understood as an accusation that another man was the father of Lucy; that “it wasn’t his child.” Bob twisted Lucy’s arm several times, and each time denied he was her father. When Lucy was six years old, after one of these incidents, Bly remonstrated “you will break your child’s arm off.” Bob replied, “That isn’t my child.” Lucy testified Bob was never very affectionate toward her. He did not pick her up, love and play with her. Her affection came from her mother and the housekeeper, according to Lucy, although Bob’s sister testified that after the divorce Lucy would visit Bob and that on these occasions Bob demonstrated love and affection, was kind to Lucy and “seemed to think a lot of her,” and one of Bob’s employers testified that occasionally Bob would buy Lucy sodas or candy at a drug store when she visited him at the shop. From 1918 to 1925 Bob and Bly operated a florist shop in the Scarritt Building in Kansas City. From two years after the marriage until the divorce Bob drank regularly; became intoxicated daily, “to the extent that he didn’t know who he was.” According to Bly, Bob was an alcoholic; an “habitual drunk.” He never stopped his heavy drinking. He neglected the florist shop, could not pay the notes and finally lost the business. A divorce was granted to Bly in 1925 on the grounds of vagrancy and habitual drunkenness. There was an award of $6 per week for child support. Bob did not make these payments voluntarily stating that “it wasn’t his child and he wasn’t going to support her.” Bob never gave Bly any reason for thinking that Lucy was not his child. At no time did he say whose child he thought Lucy was. The only basis Bob had for believing that Lucy was not his daughter was that Lucy was born three days before the expiration of nine months after the date of the marriage. Lucy looked “exactly” like Bob. Through the years Bob did not remember Lucy with gifts or money, except that Bob authorized Lucy to charge a graduation dress to him, and then complained about the cost. After the divorce Bob had fairly regular employment for several years. At work he always seemed depressed and melancholy. Finally because of Bob’s drinking habits his employer discharged him. This was approximately 1931. A welfare worker who made several attempts to collect the child support payments testified that at this stage of his life Bob was untidy, unkempt and shabbily dressed. Bob remarried in 1927 but was divorced by his second wife in 1931 for drunkenness. His employment became irregular. About 1932 Lucy took a boy friend to Bob’s place of employment to introduce him and said “Dad, I would like to have you meet this young man.” Bob “just turned around and walked away” without any explanation. If he recognized her on that occasion he did not admit it. Bob did odd jobs, worked in yards and on shrubbery. In 1936 he was employed temporarily to run a florist shop while the owners were on vacation. He drank and so neglected the business that the owners had to cut short their vacation, come home and take over the operation. They found “everything in quite a mess” and never did get their records straight for the period Bob had charge of the shop. About 1936 Bob left his sister’s home, where he had been living, and “went to look for work.” The family then lost contact with him for many years. When acquaintances would meet him on the street he would be. drinking. He. moved around from place to place. When Bob’s sister in Texas died in 1945, it was necessary to get in touch with Bob in order to settle the estate. Contact with Bob was made by running a personal ad in the Kansas City Star. From the deceased sister Bob inherited a substantial estate consisting of working interests in oil leases in Texas. The two surviving sisters received interests in the deceased sister’s estate equal to Bob’s interest. In the late 1940’s Bob went to live at the home of one of his sisters. There he remained from 1947 until 1949, at which time he moved into a downtown hotel in Kansas City. The rest of his life was devoted to spending the six hundred to eight hundred dollars a month income he received from the operation of the oil wells. On Twelfth Street Bob became a conspicuous character. In the 1920’s he had dressed “like a man should,” wearing dark blue suits and dressing neatly. In the later years he wore loud, gaudy clothes, and was oddly, flashily, peculiarly dressed. He would wear clothes with wide stripes “like a fellow wears in a circus . . . like a circus clown wears.” It appeared he was trying to attract attention by his eccentric dress. He would wear orange hats or a little gray hat like a boy wears. He would wear shirts of different loud colors such as purple, black velvet with sequins, yellow, or pink. He would wear green or lavender pants, purple sweaters, vests with sequins, a blue and white coat with two-inch stripes, yellow, red or green vests, a ribbon or scarf tied around his waist, and sometimes he would wear cowboy boots. He would go into one bar and out of another, drinking beer and whiskey, usually highballs, day after day, many times in the morning as well as in the evening. Sometimes he would drink five or six bottles of beer over a period of an hour and a half. Often he was seen going into taverns at seven o’clock in the morning. When he went into taverns ‘.‘everybody would gather around and he would buy drinks.” He was one of the best hosts on the street when it came to paying his bill. He was under the influence of liquor most of the time, according to persons who encountered him frequently during this period. Bly’s sister, who saw him often from 1950 until two weeks before he was killed, said that Bob was “always drunk the last years of his life.” He walked in a stumbling, shuffling manner, slowly and sometimes would “jig-jag back and forth,” although most witnesses said he did not stagger. One witness said “he could drink like a fish, but never staggered.” He would lean against different buildings, and walk along “trying to protect himself.” He was stoop-shouldered. There was an odor of liquor about his person. His face was flushed and swollen and he “fleshed up” during his latter years. His jowls were puffy and his eyes and nose were red. His tongue was purple, thick and slick-looking. His mouth was drawn to one side, with a purplish look around it. People would walk to one side, trying to avoid him. He was forbidden in one tavern because of unwanted attentions forced upon women customers. In the taverns he would “let out a war whoop like an Indian * * * and holler kinda like a kid or something.” At the bar he would “let out a loud scream and laugh for about an hour after he had let it out, just like a cowboy would holler in a western.” He would put on a little dance in the bars and at Katz Drug Store. Frequently he would put on colored paint and dance around in women’s clothes. Once or twice he came into Katz Drug Store wearing high-heeled, button shoes, a long pink ■dress, with make-up on, and a little pink lace hat. He would “kind of sing out loud, and kind of go into a little dance * * * picked up his feet * * * did a little sashay * * * and turned around * * * and our boss would have to ask him to go out.” He failed to recognize friends and acquaintances when he would meet them on the street. He would “saunter along” and apparently “didn’t know anyone.” Sometimes when spoken to “he would keep on going; * * * go down the street talking to himself . . . just mumbling to himself.” Witnesses said “you couldn’t understand him at all.” At times “he would just talk and blab and say nothing.” He “just blabbered” . . . didn’t talk with any sense. It was impossible to carry on an intelligent conversation with him. You “could-n’t make anything out of his conversation.” He would “kind of ramble”; talk on one thing and “skip off on another.” He “talked to himself mostly.” In October, 1953 Bob told one witness that he had a lot of horses which he pastured in back of the courthouse; that he was a jockey and was training and racing horses. This same witness saw him sitting on the sidewalk, picking up things, but conceded that “maybe he had lost something” or perhaps he was picking up cigarettes, which the witness saw in his hand. He would fuss with his clothes when he was drinking, and would be seen on the street “going like this with his arms [indicating], like he was killing bugs or something.” He told people that he raised cattle on a ranch in Texas. An investigator for the welfare department who first knew Bob around 1929 said he didn’t seem to understand about the parentage of his child, and denied the parentage, but did Hot give her any reason. When brought before the court for failure to pay the $6 weekly payments awarded for child support he “tried to deny that he was the father. He said she wasn’t his child.” Twenty-four years later, in October, 1953, after the investigator had been out of the city for several years, she encountered Bob on the street, “still intoxicated.” She hardly recognized him. His dress and appearance had changed and were quite different. After identifying herself she asked him how and where Lucy was. He said “I don’t know any Lucy. I don’t know anything about her.” In 1945 when a relative asked Bob about Lucy he said “Who is Lucy? I don’t know her.” A friend of Bob’s, a deputy sheriff, asked Bob in 1946 or 1948 about his daughter, and Bob just turned around and walked away. After that Bob never spoke to the deputy. In 1945 Celicia Dailey encountered Bob at 31st and Main, asked him “How is Lucy?” He said “Lucy who ?” Miss Dailey said “Your daughter.” Bob answered “I don’t know her.” Sometime in the period 1946-51 Bly encountered Bob on the street. She stopped him and asked whether he could not help Lucy. “He didn’t seem to know who Lucy was. I told him ‘Your daughter.’ He said T don’t have a daughter.’ ” In June, 1953 Lucy and her aunt encountered Bob coming across Twelfth Street. Lucy called out his name and he approached them. The aunt said “Don’t you want to say hello to your daughter ?” Bob got quite close to them and said “She is not my daughter * * * I am not her father.” His face was flushed, his body was “sort of distended, kind of like it was bloated.” His eyes were bloodshot. The aunt told Lucy not to pay any attention “because he was drunk.” In the fall of 1953 Bly met Bob and said “Don’t you think that it is time that you were spending your money to help your daughter?” Bob said “He didn’t have a daughter.” At that time Bob did not seem to know Bly. On the other hand, one witness testified that she was having dinner with Bob and his sisters, on New Year’s Eve, and they were talking about their families. Bob said “he missed his family, and he said he had a daughter, but that he never had had much contact or pleasure of having the daughter with him and that he missed her and he wished his daughter acted more like a daughter to him.” A friend of Bob’s named Beckner talked to him three or four times about helping Lucy. The first time was around 1950 at Little Joe’s Tavern on Twelfth Street. He said to Bob “Why don’t you give Lucy and Bly a few dollars to help them?” Bob answered, “I am mad at Bly, and I don’t have any daughter, and I wouldn’t give them a dime.” Bob also said he would not give Lucy a dime “as long as I am here.” In the last conversation this witness had with Bob a year before Bob’s death on October 31, 1955, Bob said “I will leave Lucy everything I have got when I die.” Bly’s sister, Mary Wedge, stopped Bob on the street a dozen times between 1951 and his death and oftentimes asked him to help Lucy. He would always refuse, saying he was not the father of Lucy. Once in 1953 Bly’s sister met Bob, had a heer with him in the Brown Derby, and .asked him to help Lucy. Again Bob said Lucy was not his daughter. In 1952 or 1953 at Ancona’s Italian Restaurant she asked Bob to help Lucy because Lucy “was Laving quite a time trying to make it.” Bob ■repeated that he was not the father of Lucy. Lucy had graduated from Kansas University and was holding a good job, but with her mother to support she was “hard up.” Bly’s sister was of the opinion that Bob was not of sound mind in June, 1953. The deputy sheriff gave his opinion that Bob was '“nutty”; that he was not “capable of doing right thinking or using his own judgment.” .Bly testified she “knew” Bob was mentally incompetent, even at the time (1925) she ■employed a lawyer to get her divorce. A lawyer friend of Bob’s testified that two or three years before the trial in May, 1960 Bob, in conversations in taverns, when loud .and intoxicated, would say “I have a •daughter and I am proud of her, but I '.haven’t got a daughter.” When he was drinking “it looked like it worried him,” and Bob would say “I haven’t got a daughter. I have got a daughter, but I haven’t located her.” This was at a time when her name and address were listed in the Kansas City telephone directory. Bob would mention his daughter; just say he had a daughter; refer to her, and then when he got to drinking would say “I haven’t got a daughter.” On two or three occasions through the years when Lucy would have a chance encounter with Bob on the street he would not speak, smile or pause. On Halloween night in 1953 Bob was struck and killed by an automobile on the streets of downtown Kansas City.

Contestants produced Dr. John Magalif, a medical doctor specializing in the field of psychiatry. Dr. Magalif testified that the effect of alcohol on the nervous system is to cause degenerative changes in the brain, hallucinations, failure of recollection, and loss of contact with reality. When alcohol is taken in quantities over a long period of time it affects the memory. The alcoholic often will not recognize people. Failure to assume responsibility is one of the factors of alcoholism. Brain tissue once degenerated will not regenerate. Because of deterioration of the brain from episodes of alcohol over a long period of time the alcoholic cannot make decisions for himself or come to a definite conclusion; and is “not capable of determining anything.” The doctor had not examined or treated Bob. A lengthy hypothetical question was directed to the doctor, containing the gist of the evidence which we have summarized above, upon the basis of which it was the opinion of the doctor that “this man was of unsound mind” when he executed his purported will on August 27, 1953. His opinion was based upon Bob’s behavior. He thought Bob’s alcoholism was merely a shield above a basic problem; that Bob was a basic manic depressive and that he would swing to alcohol for pleasure; that he had these episodes of alcoholism over so much time that he had brain deterioration and suffered from a mental situation. He agreed that a manic depressive might have lucid intervals when he knows what is going on, but that as an alcoholic he is “never completely lucid.”

Considered in the light most favorable to the prevailing party the foregoing evidence was substantial and sufficient as the basis for a jury finding of lack of general testamentary capacity. The jury could find these facts: Shortly after the birth of his daughter Bob developed an aversion to Lucy arising out of an unreasoning, false and unsubstantiated notion that Lucy was not his child. He rejected her. He failed in his obligation to contribute to her support, from the time of the divorce, and when he came into his inheritance in later life he refused to contribute to her welfare, although often requested to do so by friends and relatives of Lucy who described her as needy. He became a confirmed alcoholic, taking intoxicants in such quantities over a period of 36 years that he suffered brain deterioration, with consequent loss of memory, loss of contact with reality, confusion of mind and dulling of his mental faculties, failure to recognize old friends and acquaintances, erratic and eccentric behavior, and -failure to know the nature and extent of his property, as evidenced by hallucinations that he owned and was training horses and that he had cattle on a ranch in Texas. At times he acknowledged his daughter as such, but at other times he was not aware of her existence or her claim upon him, and would deny he hadl a daughter and deny he knew anyone named Lucy. When cognizant of her existence he would exhibit marked aversion or complete indifference to her. He carried this aversion for nearly 40 years — until his death at the age of 70 years. His rejection of her was abnormal, unnatural, without rational reason or basis in fact, and evidenced an unsound mind. Dominated by this aversion he was incapacitated “from discerning, comprehending, feeling, and appreciating the deserts of his [daughter] and his natural obligations to [her].” Evans v. Partlow, 322 Mo. 11, 16 S.W.2d 212, 217. His monomania on the subject of. paternity rendered him unable to weigh and appreciate his natural obligations to Lucy. This monomania, coupled with the deterioration of his mental powers from excessive use of intoxicants to the extent that he was incapable of understanding or comprehending the nature and extent of his property, or of making a rational decision or judgment with respect to the manner in which it should be distributed, rendered him legally incompetent to make a will affecting his property.

Appellants contend that testator’s contradictory statements “I have a daughter, but I haven’t got a daughter” indicate he recognized he had a daughter biologically but considered he had no daughter filially because of the years of estrangement brought on by the divorce; that this shows he thought she was not a daughter to him in actions. While subject to such interpretation, testator’s various references to Lucy might also be interpreted to indicate he did not know the objects of his bounty, or that his mind was in a state of confusion as to the identity, reality and existence of a daughter named Lucy, or that he knew a daughter was born to his wife during their marriage but did not consider himself the father of the child. It was for the jury to assess the real meaning of testator’s declarations in this regard.

Appellants argue that since testator named Lucy in the will and described her therein as his daughter, and left her $500, the notion that testator had an insane delusion that plaintiff was not his daughter is dispelled. The jury however may have disbelieved the testimony of the lawyer that it was Bob who gave the lawyer directions as to how he wanted to dispose of his property, in view of the lawyer’s testimony in his deposition that Ollie Rhoades, husband of one of the principal beneficiaries, accompanied Bob to the lawyer’s office; that the lawyer previously had been counsel for Mr. Rhoades; and the change in the lawyer’s testimony (at the trial he denied the above statement given in his deposition, and took the new position that Mr. Rhoades was not present at the interview with Bob). Or the jury may have determined that while in fact Bob employed the lawyer to make his will and directed him to include a bequest to his daughter, Lucy, naming and recognizing her as such (which would have been consistent with his previously oft-repeated statement “I have a daughter”), nevertheless, by reason of a distorted and faulty judgment caused by the deterioration of his mental powers (“His actions were like a man who was not capable of * * * doing right thinking or using his own judgment”) ; dominated by his aversion and laboring under his delusion, and as an expression of his belief about Lucy’s paternity (“That isn’t my child” . . . “She is not my daughter” ... “I am not her father” ... “I haven’t got a daughter”), he cut down the size of the bequest to Lucy to the comparatively small sum of $500. We do not consider that the fact, if it be a fact, that he told the draftsman of the will that he wanted to leave $500 to his “daughter, Lucy” is pre-clusive on the question whether Bob had an insane delusion that Lucy was not his daughter. With substantial evidence of mental incompetency, the significance of the fact that the will named Lucy and denominated her as the “daughter” of the testator, and its effect upon the contention that Bob was possessed of an insane delusion, was a matter for the jury to'determine.

Appellants urge that the habitual use of intoxicants does not permit the inference of testamentary incapacity, where it is not shown that the testator was intoxicated at the very time he executed the will. While “The fact alone that testator was addicted to the habit of using intoxicating liquor neither raises a presumption nor permits the inference that he was mentally incompetent at the time he executed the will or lacking in testamentary capacity,” Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670, 673, a person is incompetent to make á will where due to the excessive use of intoxicating liquor his mind is so impaired and enfeebled as to produce unsoundness of mind sufficient in degree to affect testamentary capacity. Naylor v. McRuer, 248 Mo. 423, 154 S.W. 772, 784 (narcotics and morphine); Anno. Testamentary capacity as affected by use of intoxicating liquor or drugs, 67 A.L.R. 857, IV a, p. 870; 94 C. J.S. Wills § 25.

Appellants suggest “That a will appears to be unjust to the objects of [a testator’s] bounty does not affect its validity.” In Turner v. Anderson, 260 Mo. 1, 168 S.W. 943, 952, this Court indicated that mere inequalities in a will, standing alone, are not sufficient evidence of testamentary incapacity. “[B]ut when there is other competent and substantial proof of testamentary incapacity * * *, then the rule is that unnatural or marked inequalities in a will, based on no reasonable ground, are factors to be reckoned with on [the] issue in combination with other testimony.” And see Hardy v. Barbour, supra, 304 S.W.2d, 1. c. 36; Wade v. Kirksville College of Osteopathy and Surgery, Mo.Sup., 270 S.W.2d 811; Guidicy v. Guidicy, 361 Mo. 1127, 238 S.W.2d 380; Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367, 11 A.L.R.2d 725.

Appellants cite cases for the proposition that eccentricities, peculiarities, oddities of dress and habit, forgetfulness, inability to recognize old friends, intellectual weakness, failure to converse normally, confusion, talking to one’s self, shifting the conversation, etc., are not inconsistent with ability to understand the ordinary affairs of life, or to comprehend the nature and extent of a testator’s property and the natural objects of his bounty, and do not constitute the basis for a finding of testamentary capacity. While these manifestations might not alone be sufficient to invalidate a will on the ground of testamentary capacity, such evidence may be taken into consideration along with other facts in determining whether testator lacked general testamentary capacity. Pickett v. Cooper, 354 Mo 910, 192 S.W.2d 412, 415. In Whittlesey v. Gerding, Mo.Sup., 246 S.W. 308, this Court said, 1. c. 312, “While we are mindful of the doctrine that mere eccentricities, idiosyncrasies and oddities of personal character and conduct are not evidence of such mental disease and deterioration as will render one incapable of making a valid will, nevertheless, where the peculiarities of thought and conduct cover a variety of subjects, where the testator has suffered from any particular mania, where he has entertained delusions and hallucinations, where his thought and action have been strange and abnormal for a number of years, and where these combined circumstances tend to show mental incapacity, the question becomes one for the jury.”

The court did not err in submitting the case to the jury.

Appellants’ second point is that the court erred in permitting lay witnesses to testify that the testator was of unsound mind without requiring such witnesses to first relate the facts upon which said opinion was based; that the facts upon the basis of which they gave their opinion were not inconsistent with the sanity of the testator and were insufficient as a basis for such opinion. In their brief appellants do not point out or specify the testimony of any particular witness or refer to any particular testimony claimed to have been erroneously admitted, or complain of any specific ruling of the court, or make any page reference to any particular place in the record. Such a general allegation of error is insufficient “to present anything more than the question of whether, in the testimony of lay witnesses on the issue of mental incapacity, there was substantial evidence to support the verdict.” Machens v. Machens, Mo.Sup., 263 S.W.2d 724, 735.

Appellants’ third point is that “the court erred in permitting the respondent to present in evidence the expert testimony of Dr. John Magalif.” This point is insufficient under Supreme Court Rule 83.05(e), V.A.M.R. for the reason that it fails to state the reason why it is contended the court was wrong in its action. From; appellants’ motion for a new trial and oral', argument it appears to be appellants’ theory that the expert opinion of a medical witness on an issue involving mental capacity is not admissible in evidence where the-doctor had never seen, examined or talked to the testator in his lifetime. It is common practice to receive in evidence the opinions of expert medical witnesses as to. mental soundness based upon hypothetical questions, notwithstanding the doctor had no personal contact with testator, where-such questions are predicated on facts which are sufficient to raise a jury issue. Evans v. Partlow, supra; and see numerous cases collected in 12A Mo.Digest, Evidence, <®==>553 (1).

The judgment is affirmed.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Robert C. SMITH, Appellant.
    No. 48947.
    Supreme Court of Missouri, Division No. 2.
    May 14, 1962.

      Stanford M. Katz, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Robert C. Smith has appealed from the judgment, after jury verdict, whereby he was sentenced to confinement in the penitentiary for a term of three years for burglary in the second degree. Appellant has filed no brief so we consider the assignments of err.or properly made in his motion for new trial.

Appellant challenges generally the sufficiency of the evidence to sustain the verdict, and he also contends that there was “no evidence presented of any breaking or entering.”

Mr. and Mrs. Flavil B. George had an “L” shaped building, referred to as a barn, constructed of concrete blocks in which they had stored “various articles of antiques.” Apparently the building was di1 vided into several rooms, and one room was used “for storing lumber” and in another room- there were “things stored.” The building had five doors, all of which were locked except the east door which was open to permit a horse to enter. ■ All the windows were locked except one from which the glass had been broken, and it was barricaded with used lumber. The record does not disclose in what room or part of the building this barricaded window was located. On December 16, 1960, when none of the George family was at home, a neighbor. saw a “blue-green” automobile with fins on the rear fenders drive into the driveway. The operator went first to the front and then the rear door of the George residence, and when no answer was received he entered his automobile and drove away. A few minutes later the neighbor saw the same man walk behind the barn. She could see the east door of the barn,, which was open, and no one entered through it. The police were called and when they arrived appellant came out of the east door of the-barn and stood behind the door. When the police backed their automobile into the driveway of the George residence, appellant left his position behind the door and started petting a horse which had walked in from the pasture. He told the police officer that he was looking for rabbit tracks because he wanted to set some traps, and that he liked horses. His “blue-green” Cadillac, which had fins on the rear fenders, was parked about 400 to 500 yards away, but to get to it by the street it was necessary to travel three or four blocks.

Upon investigation of the premises it was found that the boards barricading the one window had been pushed or moved aside so that there was room for a person to enter the barn. All the doors, except the east door were still locked. The “things” and “papers” stored in the “west room” were “in confusion” and had been pulled off the shelves onto the floor, but apparently nothing had been taken.

The offense of which appellant was charged was the “breaking and entering” of a building in which there were “goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any crime therein.” Section 560.070 RSMo 1959, V.A.M.S. It is obvious that appellant entered the building. He was seen to come out of it. It is also obvious that he did not enter through the only door that was open, and that there were no windows or other doors which were not locked or barricaded. No one saw appellant enter the building, but the offense of burglary in the second degree may be established by circumstantial evidence, State v. Williams, 356 Mo. 1048, 204 S.W.2d 748, and the circumstances revealed by the evidence, as previously set out, clearly authorize a finding by the jury that appellant entered the building by pushing aside the boards barricading the window. This constituted sufficient evidence of a breaking and entry. See State v. O’Brien, Mo., 249 S.W. 2d 433. In addition, lumber and antiques clearly constituted “goods, wares, merchandise or other valuable thing” within the meaning of Section 560.070. The element of intent to steal, like the proof of any other intent, is usually not susceptible of direct proof, but it may be established by circumstantial evidence. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273. In order to establish the requisite intent in the offense of second degree burglary it is not necessary that the act of stealing be completed after the breaking and entry. State v. Pigques, Mo., 310 S.W.2d 942; State v. Whitaker, Mo., 275 S.W.2d 316, 319. The circumstances of appellant’s conduct in first determining if anyone was at the George home, his method of entry into the building, and the disturbance of the “papers” and “things” in the “west room” unquestionably authorize a finding by the jury of the requisite intent.

It has frequently been stated that when the evidence of an accused’s participation in a burglary, or any other crime, is circumstantial, the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other, and with the hypothesis of the accused’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence. State v. Whitaker, supra; State v. Brown, Mo., 291 S.W.2d 615. The circumstances previously related are inconsistent with appellant’s innocence, and they are inconsistent with every reasonable hypothesis except that of guilt of the offense charged. We necessarily conclude that the facts and circumstances shown by the evidence, if believed by the jury, are sufficient as a matter of law to induce a belief of appellant’s guilt on the part of the jury beyond a reasonable doubt.

Appellant asserts that the trial court erred in admitting into evidence State’s Exhibit No. 1, and in permitting the exhibit to be taken by the jury into the jury room. This exhibit consisted of a sketch or diagram of the premises owned by Mr. and ■Mrs. George showing the outline of the “L” shaped building and the location of the various doors and windows. It was not drawn to scale. The exhibit was drawn by Mrs. George and used by her in clarifying her testimony.

Apparently the only objection of appellant to the exhibit is that it was not drawn to scale. However, for its purpose, the precise scale was not important. Such a sketch must not be so inaccurate or carelessly drawn to be confusing, State v. Bidstrup, 237 Mo. 273, 140 S.W. 904, but where it is helpful in explaining the testimony of a witness so as to enable the jury to get a clearer understanding of the locale it is admissible even though not drawn to the precise scale. State v. Brooks, Mo., 159 S.W.2d 646. Such inaccuracies generally are matters for impeachment going to the weight rather than to the competency of the evidence. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98. There was no error in admitting this exhibit in evidence.

Permission for the jury to take exhibits which have been received in evidence to the jury room is “within the exercise of a sound discretion on the part of the trial court.” State v. Damon, 350 Mo. 949, 169 S.W.2d 382. Appellant does not contend that the trial court abused its discretion; only that it could not permit the exhibit to be taken to the jury room in any event over his objection. No prejudicial error resulted.

Appellant asserts that the trial court erred in admitting “testimony of previous burglaries in the same location.” The specific testimony to which complaint is made is not referred to in the motion for new trial, and for that reason the assignment may be considered to be incomplete. However, we find only two instances in the transcript to which the complaint could be directed. While Mrs. George was testifying she stated that she had returned from work about five o’clock in the afternoon and that she had been notified that something “unusual had happened.” When asked who had told her, she replied “my neighbor.” She then volunteered the statement “whom I had told to watch my place, since the previous robbery.” Counsel for appellant said: “I am going to object to — .” At this point the court interrupted, and stated: “Mrs. George, you weren’t asked anything except whether or not you were notified, and who notified you. Not what they said.” No further objection was made, and no other relief was requested. It is apparent that appellant was satisfied with the court’s admonishment to the witness. Later, when a neighbor was testifying, she stated that she saw appellant go behind the barn, and she was asked what she then did. Her reply was that she “stood right there and watched and watched.” She then volunteered the statement “she [Mrs. George] had asked me to, if I noticed anybody around her home, she had had some trouble up there about a year prior to that — .” Counsel for appellant objected “to that,” and the court interrupted and sustained the objection. No other relief was requested. No prejudicial error resulted from these two occurrences.

Appellant elected not to testify, and he assigns as error that the trial court “erred in not giving a requested instruction regarding the non-testimony of the defendant.” The record shows that at the end of the State’s case, counsel for appellant asked the court if it had “an instruction available that the man does not have to testify,” and that he “might want the instruction that if the man does not testify it cannot be held against him.” The trial court stated: “It is up to you, but let’s talk about it. If you want any such thing I will give it, but you think about it before you do it. * * * If you want it I will sure give it.” Counsel then asked that he be permitted to talk to appellant “about five minutes,” and the court declared a recess. After the recess the court read the instructions to the jury,, and the objections thereto were entered o£ record. No objection was made to the failure of the court to give an instruction on: the right of appellant not to testify. No' request for such an instruction was made,, and no such instruction was offered by appellant. Under these circumstances it is. clear that the original request for such an instruction was abandoned.

The failure of appellant to testify may not be referred to by counsel and may not be considered by the court or by the jury. Supreme Court Rule 26.08, V.A.M.R.; Constitution of Missouri 1945, Art. I, § 19, V.A.M.S. Therefore, “it is inadvisable if not erroneous for the court of its own volition to give an instruction on this subject.” State v. Phillips, Mo., 324 S.W.2d 693, 697. Since the original request for such instruction obviously was abandoned, there was no error in the court’s failure to instruct on the subject. State v. Rutledge, Mo., 267 S.W. 2d 625. However, while we need not specifically pass on this issue, it has been held that the refusal to give such an instruction, even upon the request of the accused, is not error. State v. Denison, 352 Mo. 572, 178 S.W.2d 449; State v. Rutledge, supra.

Questions not required to be presented and preserved in a motion for new trial have been examined, and we find that the transcript shows compliance in all matters to be considered by this court “upon the record before it.” Supreme Court Rule 28.02, V.A.M.R. The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.