author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Louis WALLACH, Appellant.
    No. 50633.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 12, 1965.

      Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Mortimer A. Rosecan, St. Louis, for appellant.
   HENLEY, Judge.

Indicted for murder in the first degree (§ 559.010), defendant was tried by a jury, convicted of manslaughter and sentenced to a term of ten years (§ 559.140) in the custody of the Department of Corrections. (References to Statutes and Rules are to RSMo 1959 and V.A.M.S., and V.A.M.R., respectively.) He was represented by counsel in the trial court and is represented by the same counsel on appeal.

Defendant raises seven points for review in his brief, namely: (1) that the verdict of guilty of manslaughter violates the due process clause of the Constitution of Missouri and that clause of the Constitution of the United States in that he was convicted of a crime for which there was no evidence and of which he is innocent as a matter of law; (2) that the court erred in refusing to permit him to read to the jury portions of depositions of the state’s chief witness (Officer Jon Becker) allegedly inconsistent with the witness’ trial testimony; (3) that the court erred in prohibiting defendant from commenting upon or drawing an unfavorable inference from the failure of the state to produce as a witness one Lieutenant Duke in corroboration of portions of the trial testimony of Officer Becker, and that the court compounded this error by telling the jury Duke was equally available to defendant; (4) that the court erred in failing to instruct the jury that defendant had the right to prevent his place of business from being robbed and the right to shoot and kill, if necessary, to prevent the commission of that felony on his premises; (5) that the court erred in refusing to give to the jury proper instructions submitting his defense that he did not know that he was shooting at Elmer Otto McCormack and would not have shot had he known; (6) that the court erred in giving instruction No. 3 because it failed to require a finding defendant knew it was McCormack at the time he shot him, that it assumed defendant knew it was McCormack and it thereby disparaged the entire theory of the defense; and, (7) that the court erred in giving instruction No. 3 for the further reason it limited justifiable homicide to the killing of another in lawful defense of his person or in resisting an attempt to commit a felony upon him. Points (4) and (7) may logically, and will be, considered together, as will points (5) and (6).

In the unlighted interior of defendant’s place of business late on the cloudy morning of October 29, 1962, defendant, Louis Wallach, shot and killed his alleged friend, Elmer Otto McCormack (probably better known as Jack McCormack). Defendant’s place of business was a quonset hut type of building approximately 60 feet long north and south and 30 feet wide located on the east side of and facing Lucas and Hunt Road in St. Louis County. The building had no windows. The electric service had been suspended, and the only source of light was through a glass pane in the front door located on the west side and immediately south of the center of the building and a smaller glass panel on each side of this door. Defendant was engaged in the junk business, buying and selling scrap metal and auto parts under the name of Harlan Salvage Company.

From the beginning the defendant has claimed that he thought he was shooting at a robber, that he did not know it was McCormack at whom he was shooting, and that had he seen it was McCormack he would not have shot. The state, on the other hand, contended that defendant not only knew it was McCormack at whom he was shooting, but had planned the crime at the place and time and in the very manner in which it occurred.

Police Corporal Roger Spreck testified that as a result of a call from the department dispatcher he went to Harlan Salvage Company arriving there shortly after 11 a. m. On arrival he found defendant standing at the street curb with a revolver in his hand. Defendant told him he had shot a holdup man inside the building. The officer took the revolver and went inside the building where he found the deceased lying supine on the floor. He recognized deceased as Elmer Otto McCormack, whom he knew as Jack, and then went outside and asked defendant if he knew whom he had shot. Defendant replied, “No, I don’t.” Informing him it was Jack McCormack the officer and defendant went inside the building where, at the officer’s request, the shooting was reenacted and discussed.

In a statement given to Corporal Spreck and the coroner, received in evidence without objection, defendant said, in substance, that on the morning in question he arrived at his place of business shortly after 7 a. m., and about an hour later his employee, John Franks, arrived; that several customers were in and out for a while and one wanted a door for a ’SO Plymouth; that he told Franks to take a door off an old Plymouth, then he (defendant) went back inside the building to get some papers from a filing cabinet intending to take them outside where he could see; that while at the cabinet he heard a man’s voice say, “Stick 'em up, this is a holdup.” Frightened, he said, “Just a minute, I’ll get the money.” He then stepped sideways to a cabinet drawer from which he took his .38 caliber revolver and “wheeled right and started shooting” in the direction from which the voice came. (The voice had no doubt come from behind a counter about six feet east of the front door and ten or twelve feet north of where defendant had stood for it was here the body was found with three .38 caliber bullets in it, two having struck the chest and one the head.) He said he remembered little of what happened from the moment he started firing the revolver; that he saw a figure of a man and heard him, but did not know who it was; that he had seen no one enter the building; that he had last seen the deceased the evening of the day before at defendant’s place of business and before that on the previous Thursday evening when deceased was at his home for a few minutes; that on the evening before he “had run him (McCormack) away” from his business; that deceased was at his home Thursday evening only a few minutes because “I just told him to go away.” In this statement defendant further said he had known deceased as an “acquaintance” for three or four years; that his reaction at the time he heard this voice was: “The only thing I can figure that a guy is going to hold me up and is he ever going to believe that I only, that I got only $12.25 in my pocket or drawer.”

Officer Jon Becker of the St. Louis County Police Department related three conversations he had with defendant on as many dates before October 29. The first conversation related occurred the morning of October 21 (Sunday) at defendant’s place of business. The result of that conversation was that defendant gave the officer a Missouri automobile license number suggesting that it would be worthwhile to watch for that automobile. The second conversation occurred later that week on a parking lot on St. Charles Rock Road, defendant having asked the officer to meet him there. The substance of that conversation was: defendant told the officer that McCormack, referring to the latter as “the crazy man”, had been to his home the evening before and he had “run him off”; that McCormack and others had used an automobile belonging to defendant in a burglary or robbery the evening before and he (defendant) was worried because the title was still in his name. The officer asked defendant whether he had information on other burglaries and robberies but received no reply. The third conversation was on the evening before defendant shot McCormack and took place on another parking lot, again at the suggestion of defendant. The substance of this conversation was that defendant told the officer that he had intended to shoot a holdup man (meaning McCormack whom he again referred to as “the crazy man”) that night but did not because McCormack had not been at his (defendant’s) place of business; that McCormack would come to his place of business within the next 36 or 48 hours (to get certain tanks McCormack had left there) and when he did defendant would be waiting for him and shoot him as a robber; that he would call the officer when this happened. In fact he did call him the next morning and told him he had “just shot a holdup man.” The officer reported this telephone call to his superior, Lieutenant Austin Duke, and left immediately for Harlan Salvage Company.

Cross-examination of Officer Becker developed that his deposition had been taken twice in this case. The cross-examination was intensive, thorough and detailed in an attempt to show that the officer’s testimony was bizarre, unbelievable and perjurious. In an effort to impeach him full use of the depositions was made to confront him with his conflicting testimony as to dates of the three meetings he had with defendant, what was said at each, and whether he had or had not made a record of these meetings and reported them to his superiors. On redirect examination Becker explained that he had done nothing to prevent defendant from killing McCormack for “I didn’t really myself believe that he would kill him”; that he “didn’t believe Mr. Wallach had the intestinal fortitude to shoot and kill someone.”

Defendant testified that he had known Jack McCormack very well, well enough that under ordinary circumstances he would immediately recognize him; that McCor-mack was a “very close friend.” He said that before October 29 he had been sick, having had heart trouble and when this voice behind him said “stick ’em up” he was scared; that he “didn’t see anything; that’s what I was scared of”; that “[no one] would believe if a man is going to stick me up that I would have [only] $12.00 in my pocket”; that he was afraid for his own safety and “I wanted to protect myself.” .Except for the meeting on Sunday, October 21, defendant denied having met with Officer Becker at any time before the date McCormack was killed. As to that meeting he recalled only that they talked in generalities and remembered nothing of the particulars of that conversation. He denied categorically that he then, or at any other time before the shooting, discussed McCormack or anything about him with Officer Becker, and denied specifically each item of the officer’s testimony pertaining to those three alleged meetings. He did not remember whether he had called Officer Becker immediately after the shooting.

There was evidence of a meeting after October 29 between the officer and defendant at which the officer by use of a hidden tape recorder was attempting to get evidence from defendant, but was unsuccessful. Full use of the circumstances of this meeting, and other alleged meetings and conversations between these men after the shooting, was used on cross-examination of Becker in an attempt to degrade and destroy the value and force of the testimony of this key witness for the state. Like use was made by defendant of the fact that the officer had not made a record memoranda of each of these three meetings, and had not reported the content of these conversations to his superiors until after the shooting.

Three witnesses for the defense, including the widow of the deceased, testified that deceased was quite a practical joker; that he was continually simulating a robber to the discomfort of his friends. Apparently the purpose of this was to imply that defendant knew of this facet of deceased’s nature. Deceased’s widow testified also that defendant and her husband were friends; that no bad feelings existed between them; that she knew of no trouble between them in the last six months; and, that she knew of no reason why defendant would want to kill her husband.

In point “A” of respondent’s “Points Relied On” the state suggests that this court, in its discretion, should dismiss this appeal for the reason the transcript was not timely filed, the transcript being filed more than five months after the notice of appeal without an extension of time. Rule 28.08; § 512.130. Respondent’s suggestion is denied.

In his first point defendant contends that he should be acquitted because the verdict of guilty of manslaughter is not supported by evidence; that he was convicted of a crime of which he is innocent as a matter of law; and, therefore, his conviction is in violation of the due process clause of the Constitution of Missouri and the due process clause of the Fourteenth Amendment to the Constitution of the United States. He says that he was either guilty of murder under the state’s evidence or he was innocent under his own. Essentially what defendant urges in this point is that there were no facts in evidence sufficient to reduce the degree of the homicide from murder in the first degree to manslaughter and, hence, no evidence whatever on which to base his conviction of manslaughter. We note that the court gave an instruction on manslaughter, but he does not assign this as error.

Defendant admits that he shot and killed McCormack. The evidence in this case would support a conviction of murder in the first degree, a higher degree of homicide than that of which he was convicted. “Because the evidence shows * * * him to be guilty of a higher degree of the offense than that of which he [was] convicted,” we may not stay or otherwise affect the judgment of conviction. Section 545.030, subd. 1(17). In addition to this section of our statutes we have another specifically applying to homicide which provides, in substance, that any person found guilty by a jury of any degree of manslaughter shall be punished pursuant to that verdict, although the evidence shows him to be guilty of a higher degree of homicide. Section 556.220. Defendant tacitly agrees that the Missouri rule is clear that when the evidence is sufficient to support a conviction of first degree murder a defendant-is not entitled to complain that a submissi-ble case was not made as to a lesser degree of homicide. State v. Morrow, Mo., 188 S.W. 75; State v. Davis, 321 Mo. 598, 12 S.W.2d 426; State v. Garrett, Mo., 282 S.W.2d 441; State v. Chamineak, Mo., 343 S.W.2d 153. However, he asks that these cases based on the above-mentioned statutes be reexamined in the light of his contention that those precedents and the statutes have denied him his constitutional guaranty of due process of law.

He suggests that §§ 556.220 and 545.030 must necessarily fall as they deny defendant due process. He is not denied due process by those sections. The crime of which he was convicted was included within the crime with which he was charged. State v. Ancell, 333 Mo. 26, 62 S.W.2d 443, 446 [5, 6], In Thompson v. City of Louisville et al., 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 and Garner et al., v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, cited by defendant, the Supreme Court of the United States held that convictions for loitering and disorderly conduct in Thompson and for disturbing the peace by peaceable “sit-ins” in Garner were so totally devoid of evidentiary support as to violate the due process clause of the Fourteenth Amendment. Neither of those cases involves convictions for lesser included offenses where there was evidence supporting a higher offense, and are to be distinguished from the instant case for that reason if for no other. Merely because our statute (§ 556.220) provides that he shall be punished according to the verdict although the evidence may show him to be guilty of a higher degree of homicide does not deprive him of due process; on the contrary, he is afforded due process by the statute in that it sanctions punishment assessed by the jury commensurate with a lower degree of homicide (included within the charge against him) more lenient and merciful than that assessable for a higher degree. He may not be heard to complain that he has been denied due process for he is relieved and benefited by the statute. It has been said that a statute which otherwise meets the requirements of due process does not deny due process of law by authorizing a jury under an indictment for a graver offense to punish for a lesser offense. 16A C.J.S. Constitutional Law § 580, pages 625-630. Davis v. State, 20 Tex.App. 302.

Defendant next contends that the court erred in refusing to permit him to read to the jury as a part of the defendant’s case portions of the depositions of Officer Becker inconsistent with his trial testimony. In his offer of proof he does not state specifically which portions are being offered so we are left to assume, and do assume, for the purposes of this opinion, that he was offering all those portions about which he had cross-examined this witness. During the cross-examination, defendant, for his announced purpose of impeachment, apparently confronted this witness with all the inconsistent testimony he deemed pertinent and helpful to his case. In not one single material instance do we find where Becker failed to acknowledge or admit that he had made the particular inconsistent statement or statements in his depositions. These admissions were direct, unqualified and without equivocation. The witness having admitted the prior inconsistent statements, subsequent proof of them as a part of defendant’s case was not only unnecessary, they were inadmissible and the court did not err in excluding them. State v. Cooper, 83 Mo. 698, 701; Andrews v. Parker, Mo.App., 259 S.W. 807, 810 [9]. Also see: State v. Jones, Mo., 227 S.W.2d 713, 717 [11].

In the third point of his brief defendant asserts that “the court erred in prohibiting appellant from commenting upon or drawing an unfavorable inference from the failure of the state to produce Lieutenant Duke as a witness; and the court compounded the error by telling the jury that the witness was equally available to the defendant.” Becker had testified that although he made no memoranda or other official record or report of his three earlier conversations with defendant prior to the shooting he did, immediately after the shooting, report to Lieutenant Duke the telephone call received from defendant that morning and also that two or three days later he told Duke of the three earlier conversations.

During his argument defense counsel, partly in reply to argument of counsel for the state, sought to comment upon the failure of the state to produce Lieutenant Duke as its witness. An objection to this comment was sustained. Proceeding to characterize Becker’s testimony as incredible and unworthy of belief, counsel sought to draw an unfavorable inference from the failure of the state to produce Duke to corroborate Becker’s testimony that he had told Duke of his conversations with defendant. In sustaining the state’s objection to this argument the court remarked that Duke was equally available to defendant by subpoena. Later in his argument, without objection, counsel did draw an unfavorable inference from this lack of corroboration of Becker without using Duke’s name, but nevertheless referring indirectly to Duke. Defendant contends that justice and fair play make it mandatory that the state call Duke as a witness to corroborate Becker. Of course, had the state called Duke as its witness, on proper objection by defendant, he would not have been permitted to testify what Becker had told him. Lieutenant Duke could possibly have testified that Becker had reported the mere fact that the conversations had occurred, but the state was not required to produce him as a witness for this purpose. The rule is that an unfavorable inference may be drawn by defendant from failure of the state to call as its witness one who was available and who might reasonably be expected to give testimony in its favor. State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 544; State v. Collins, 350 Mo. 291, 165 S.W.2d 647. However, this rule has the limitation that unfavorable inferences may not be drawn from the failure to produce a witness whose testimony would be merely corroborative of, or cumulative to, testimony of another witness, or whose testimony would not have been admissible. Roehl v. Ralph, Mo.App., 84 S.W.2d 405, 413 [10]; State v. McMillian, Mo., 338 S.W.2d 838, 843 [6]; 23A C.J.S. Criminal Law § 1099, p. 179; 22A C.J.S. Criminal Law § 594, pp. 373-374. While in the broadest sense of the term Duke was not “equally available” to defendant, as was remarked by the trial court, we do not consider that such remark, if error, was prejudicial to the defendant.

We consider defendant’s points 4 and 7 together, point 4 being that the court erred in failing to instruct the jury that defendant had the right to prevent his place of business from being robbed and the right to shoot and kill, if necessary, to prevent the commission of such felony upon his premises, and point 7 being that the court erred in giving instruction No. 3 in that it limited justifiable homicide to the killing of another in lawful defense of his person or in resisting an attempt to commit a felony upon him. Essentially, the two points are one; that is, that the court should have broadened his right of defense to include the right to defend his place of business.

Had the evidence supported defendant’s theory that McCormack was killed in the defense of defendant’s place of business it would have been the duty of the court to instruct on that defense whether requested or not. Rule 26.02(6); State v. Shiles, Mo., 188 S.W.2d 7. But we do not find evidence supporting defendant’s theory. And defendant does not point to any evidence which would require the court to give such an instruction. At the time McCormack allegedly said “Stick ’em up” he was already inside defendant’s place of business. Attacked inside his place of business defendant may justify or excuse the killing of his assailant if that is apparently necessary to save his own life or to protect himself from great bodily harm. Under those circumstances, however, the applicable law involved is that of self-defense, not the law of defense of his place of business. Vol. 1, Wharton, Criminal Law and Procedure, § 222. State v. Brookshire, Mo., 353 S.W.2d 681, 691. State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156, 159. Points 4 and 7 are ruled against defendant.

The fifth point in defendant’s brief asserts: “The court erred in failing to give and read to the jury proper instructions embodying appellant’s claim that he did not know at the time of the shooting that he was firing his gun at Elmer Otto Mc-Cormack particularly since he requested such instruction and offered to the court Instruction No. A submitting that defense.” This may properly be considered in connection with his sixth point that: “The court erred in giving * * * Instruction No. 3 for the reason that said instruction failed to require a finding that appellant knew it was Elmer Otto McCormack at the time he shot him; and assumed that to be true; and disparaged the entire theory of the defense.”

Defendant appears to complain that instructions 1 and 2 (on first and second degree murder) are guilty of the same omission as that complained of in instruction No. 3. As he was convicted of manslaughter, he may not complain of alleged prejudicial error in instructions submitting a higher degree of the offense for which he was tried. It would serve no useful purpose to set out in full his refused instruction or those given; it will suffice to say that instruction No. 3 was the usual manslaughter instruction in approved form. We need consider only his assignments as to his refused instruction and the giving of instruction No. 3. State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 319 [12]; State v. Brookshire, supra, 353 S.W.2d 1. c. 689 [21, 22],

Instruction A refused by the court tells the jury they must acquit defendant unless they find beyond a reasonable doubt that he knew at the time it was McCormack at whom he was shooting and recognized him. This instruction is incorrect in that it limits the homicidal intent to specific intent to kill a specific person, McCormack, the actual victim. Defendant says he intended to shoot and kill another person, a robber.

The rule applicable here is stated in State v. Batson, 339 Mo. 298, 96 S.W.2d 384, 389 [6], to be “ * * * that the act with respect to which the felonious intent will be ‘transferred’ from the object of the accused’s design to the victim, is the homicidal act directed at the former and resulting in the death of the latter * * The rule is aptly uttered in other words in State v. Richardson, Mo., 321 S.W.2d 423, 428 [8-10] where it is said, “The constitutive elements essential to convict an accused of murder follow his bullet and are transferred to his actual victim when they exist with respect to his intended victim”, citing State v. Batson, supra, and 40 C.J.S. Homicide, § 18, p. 864; 26 Am.Jur., § 35, p. 179.

Even if defendant did not know or recognize his assailant to be McCormack, this is no defense in and of itself and the court did not err in failing to instruct thereon. For the same reasons, the court did not err in omitting from instruction No. 3 defendant’s theory that the jury should have been required to find that he knew it was Mc-Cormack at the time he shot. Nor does instruction No. 3 assume, as contended by defendant, that he knew his assailant was McCormack.

Examination of those portions of the record required by Rule 28.02 discloses no reversible error.

The judgment is affirmed.

Ajll concur.


source: Caselaw Access Project

author: PAUL VAN OSDOL, Special Commissioner.

license: Public Domain

text:
    Charles Louis EVANS, (Plaintiff) Respondent, v. James LANDOLT, a Minor, (Defendant) Appellant.
    No. 50952.
    Supreme Court of Missouri. Division No. 1.
    March 8, 1965.
    Rehearing Denied April 12, 1965.

      Roberts & Roberts, by Raymond R. Roberts, Farmington, for respondent.
    E. L. McClintock, Jr., Flat River, for appellant.
   PAUL VAN OSDOL, Special Commissioner.

Action for $28,000 for personal injuries and property damage alleged to have been sustained when the eastbound automobile driven by defendant on East Main Street in Flat River collided with the automobile driven by plaintiff which had moved west-wardly on East Main and had turned left off of East Main onto a parking lot south of the street.

At the conclusion of the trial of this case, April 15, 1964, a jury returned a verdict for defendant, but the trial court sustained plaintiff’s motion for a new trial on the specified ground “that the Court believes the verdict and judgment thereon to be contrary to the greater weight of the credible evidence in this case.” Defendant has appealed from the new-trial order, and herein urges the one point that the trial court “erred in sustaining plaintiff’s motion for a new trial on the ground that the verdict was against the greater weight of the evidence for the reason that plaintiff failed to make a submissible case on the two theories of negligence which were submitted and the trial court’s ruling was not a judicial exercise of discretion but was an arbitrary exercise of authority.”

It is within the trial court’s discretion to grant a new trial on the ground the verdict of the jury was against the weight of the evidence. However, such discretion was to be judicially, not arbitrarily exercised. It has been said that, in determining the question whether the trial court (in granting a new trial to plaintiff on the ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, the appellate court will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted. Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, and cases therein cited; Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825; Hendershot v. Minich, Mo.Sup., 297 S.W.2d 403; Kiburz v. Loc-Wood Boat & Motors, Inc., Mo.Sup., 356 S.W.2d 882; Madsen v. Lawrence, Mo. Sup., 366 S.W.2d 413; Williams v. Cass, Mo.App., 372 S.W.2d 156; § 510.330 RSMo 1959, V.A.M.S.

East Main Street in Flat River is paved with concrete twenty feet wide with graveled-surface shoulders on either side. A building occupied by the Caldwell Funeral Home fronts northwardly. The front of the building is approximately eighty feet south of the south edge of the pavement. The area between the building and the pavement is used by the Caldwell funeral service as a parking lot for motor vehicles. The motor-vehicular collision involved in this case occurred near the south edge of the pavement in the northerly portion of the parking lot.

A root beer stand is located on the north side of East Main approximately twelve hundred feet west of the place of collision. The stand is on a hill referred to by the witnesses as “Federal Hill.” The elevation of East Main declines nearly thirty-five feet in the stated approximate distance between the root beer stand and the place where the collision occurred. There is nothing to obstruct the view from Federal Hill eastwardly down East Main to the place of the collision.

At about ten thirty in the morning of April 21, 1963, plaintiff had been proceeding westwardly on East Main. He was intending to go to the funeral home. He had been driving twenty to twenty-five miles per hour. Plaintiff testified that, when he was about a block and a half east of where he turned left, he saw defendant’s eastbound car which was then three blocks (or a little more) west of the place where plaintiff made his turn. It “didn’t look to me like he was going too fast.” Prior to getting up to the point where plaintiff turned, plaintiff turned on the left-turn signal light; and, in his nearer approach, plaintiff reduced speed to five or ten miles per hour, allowing another vehicle on the south lane to pass eastwardly. A witness for plaintiff said the left-turn light was turned on when plaintiff’s vehicle was approximately half a block from where plaintiff commenced to turn left. As plaintiff commenced to make the left turn across the south (eastbound) lane, he glanced up and again saw defendant’s vehicle about a block and a half away. Plaintiff continued to turn left at an angle of about forty-five degrees and got off the pavement and onto the parking lot when he was hit. Plaintiff had just seen that defendant’s car, moving sixty to seventy miles per hour, had moved six or seven feet off of (south of) the pavement. The front of defendant’s automobile struck the right front side of plaintiff’s automobile.

Skid marks indicated defendant’s vehicle had been braked for a distance of seventy-six feet. The “last twenty feet of the skid marks” left the pavement and continued to the point of collision. Debris (“such as dirt and what have you from underneath the fenders and front ends of the cars”) was approximately six feet south of the south edge of the pavement.

Defendant testified that, driving east-wardly on East Main, he had slackened to a low speed when he was near the root beer stand; and then, in moving farther east-wardly down Federal Hill, defendant “accelerated.” Defendant was not able to estimate the highest speed his vehicle moved on down the declining grade to the point of collision. When he saw plaintiff making the left turn, defendant “hit the brakes” and held them on, and his car “drifted” to the right. Defendant had seen plaintiff’s car, but he hadn’t seen plaintiff give a left-turn signal. Defendant said he was seventy-five to ninety feet from plaintiff’s vehicle when plaintiff started to turn left. Defendant didn’t “turn the wheels” and pass to his left of plaintiff’s car, although there was no westbound traffic on the north lane at the time; he “couldn’t.” Defendant entered a plea of guilty in the police court of Flat River. The charge was careless and reckless driving.

As a preliminary to our discussion of the evidence, we shall dispose of argument in defendant’s brief that, in the course of the trial, certain stated rulings, statements, and comments by the trial judge, if they were not individually erroneous, were, at the least, strongly indicatory of partiality in favor of plaintiff’s case and, at worst, an outright prejudice against defendant. So it seems defendant urges in argument that partiality or prejudice on the part of the trial judge affected or actuated the action of the trial court in sustaining the new-trial motion.

We have examined the entire transcript, and, particularly, we have analyzed, in their trial settings, the rulings, statements, and comments complained of by defendant. We have the opinion the parties, plaintiff and defendant, were accorded a fair and impartial trial; and certainly we see no real or apparent basis in the record for inferring that any partiality or prejudice affected the trial court’s action in granting a new trial.

But, says defendant, “to complete the picture,” it must be pointed out that the trial court committed what defendant says is obvious error by permitting plaintiff to submit his case by instructions based, says defendant, on the MAI but which instructions, again says defendant, do not meet the requirement of “either the new or old instruction.”

In this connection, we note the trial court submitted plaintiff’s case by the verdict-directing Instruction No. 1, as follows—

“Your verdict must be for the Plaintiff if you find and believe:
“First, Defendant either: drove off the traveled portion of the road on to the parking lot, or failed to maintain control of his vehicle; and
“Second, Defendant conducting himself in any one or more of the respects submitted in Paragraph First was negligent, and
“Third, as a direct result of such negligence Plaintiff sustained damage,
“Unless you believe Plaintiff is not entitled to recover by reason of Instructions Nos. 4 and 5.”

(Instruction No. 4 submitted contributory negligence of plaintiff in failing “t'o give a timely signal of his intention to turn left.” Instruction No. 5 submitted contributory negligence of plaintiff in attempting to turn left on the hypothesis that plaintiff by the exercise of the highest degree of care “could have seen the vehicle driven by defendant approaching * * * so near and at such speed as to constitute an immediate hazard of collision * * *.”)

Herein, as noticed supra, the sole point relied on by defendant in his brief is error in sustaining the new-trial motion for the stated reason that plaintiff failed to make a submissible case “on the two theories of negligence which were submitted.” Although defendant in his argument asserts the instructions given in behalf of plaintiff do not meet the requirements of either the new or old instructions, defendant does not develop and support the assertion; nor does he say in what respects the instructions were erroneous (other than to say that the one of the two theories of negligence submitted in Instruction No. 1 is inconsistent with the other). Nevertheless, we observe that the submissions by hypotheses of theories of the type — “did not have his automobile under such control that he could stop or turn it aside and thereby avoid the collision” — frequently have been criticized. See Kitchen v. Wilson, Mo.Sup., 335 S.W.2d 38; and quoting from Myers v. Buchanan, Mo.Sup., 333 S.W.2d 18, “Lack or loss of control is usually the result of some antecedent negligent act or omission which is the essential fact that should be hypothesized.” The specific hypotheses of the essential negligent acts or omissions constituent of lack of control is aptly suggested in the Kitchen case. And see also Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872.

We think the doctrine of these cases is applicable to the hypothesis in Paragraph First of Instruction No. 1 — “failed to maintain control of his vehicle.” And concerning the alternative hypothesis in Paragraph First of the instruction — “drove off the traveled portion of the road on to the parking lot,” it appears that the trial court at plaintiff’s instance may have been attempting a res ipsa loquitur submission which, under the pleadings and the evidence introduced by plaintiff, had no place in the submission of plaintiff’s case. And any contention that the one of the two alternative hypotheses in Paragraph First (or that the one “of the two theories of negligence which were submitted,” as defendant puts it) is inconsistent with the other is of no moment in this case.

In his petition, plaintiff has specifically averred, inter alia, that defendant was negligent in driving “at a high, excessive and unlawful rate of speed” and in failing “to maintain a vigilant lookout”; it is seen there was substantial evidence supporting these allegations of specific negligence. The alternative hypotheses submitted in Instruction No. 1 were insufficient in submitting essential fact issues. The essential facts — negligent act and omission — were not set forth and submitted for the jury-fact decision. We would suppose there was a misdirection. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W. 2d 59, id., Mo.App., 243 S.W.2d 539.

In the situation herein upon appeal we have the opinion there should be a retrial with instructions submitting the essential factual issues.

In the Girratono case, supra, as in our case, plaintiff had pleaded the particular or specific acts or omissions constituting negligence as distinguished from the “result” of those pleaded particular negligent acts or omissions which were supported by substantial evidence but were not submitted. In the Girratono case the verdict was for plaintiff and, upon defendant’s appeal from the ensuing judgment, there was reversal and remand.

As strongly intimated, supra, our study of the record discloses the factual theories of defendant’s negligence in driving at an excessive speed and in failing to keep a careful lookout were the “essential facts”— specific negligent act and omission — and we believe they were supported by substantial evidence exemplified by evidence we have stated supra. And it would seem that the evidence in this case tending to support the specific negligence of defendant in driving at an excessive speed and in failing to keep a careful lookout also tended to refute or disprove the evidence tending to show contributory negligence of plaintiff as submitted and answers any contention herein that plaintiff was guilty of contributory negligence as a matter of law. We have no doubt that in granting a new trial on the specified ground that the verdict was against the greater weight of the evidence, the trial court actually or in fact weighed the evidence tending to prove and to disprove these stated essential fact issues. This, even though such issues were not but should have been specifically and plainly submitted. And, in this case, in view of all we have said supra, we have no disposition to reverse or change the effect of the new-trial order.

Parenthetically and in conclusion, we say that if, as defendant asserts, the trial court at plaintiff’s instance was attempting to use the MAI in formulating Instruction No. 1, plaintiff and the trial court failed to use the alternative submissions — “failed to keep a careful lookout, or drove at an excessive speed”; and plaintiff and the trial court also failed to note the absence of any MAI approved submission of “failed to maintain control of his vehicle.” As to the alternative submission in Paragraph First of the instruction — “drove off the traveled portion of the road on to the parking lot,” if such alternative submission is considered an attempted res ipsa loquitur submission and even if we were to accept the unsupportable proposition that plaintiff made out a submissible res ipsa loquitur case, plaintiff was not entitled to avail of the res ipsa loquitur theory of submission because of his pleading and proof of specific negligence. Plaintiff and the trial court are not saved by using res ipsa loquitur language from the MAI, for the introduction to MAI makes it abundantly clear that the MAI instructions are correct only where applied to the appropriate fact situation.

The order granting a new trial should be affirmed.

It's so ordered.

PER CURIAM.

The foregoing opinion by PAUL VAN OSDOL, Special Commissioner, is adopted as the opinion of the Court.

All concur.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Ralph Louis VOLLMAR, Appellant.
    No. 50458.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 12, 1965.

      Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    Morris A. Shenker, Bernard J. Mellman, Emanuel Shapiro, John L. Boeger, St. Louis, for appellant.
   HOLMAN, Judge.

Defendant was charged with and found guilty of the offense of knowingly possessing certain obscene publications with intent to sell and circulate the same and the jury fixed his punishment at a fine of $1,000. See § 563.280, Laws of Mo. 1961, p. 335, and V.A.M.S. He has appealed from the ensuing judgment.

We have jurisdiction of this appeal (although the offense is a misdemeanor) because questions have been presented which involve the construction of certain constitutional provisions. Mo.Const. Art. V, § 3 (1945), V.A.M.S.

The State’s evidence will support the following statement of facts: On March 21, 1963, Detective Jimmy Webb and Frederick Fry were members of the liquor and morality section of the vice squad of the St. Louis Police Department. At about 10:30 a. m. on that day they went to the “House of Publications,” located at 719 Pine Street. After entering the establishment they contacted defendant (who was the store manager) and one of them told defendant that they were “gong to have a stag party, and needed some pictures to get the interest of the males at the party.” Detective Webb also pointed to a particular magazine lying on the counter, “Sun Fun,” wrapped in cellophane, and said that he wanted it. Defendant then obtained a copy of that magazine from under the counter, opened it, and said, “This has real nudes in it, and shows everything.” The detectives then looked at the magazine and saw that it contained pictures of nude women which “showed everything,” and Detective Webb purchased it for $2.00. The officers then identified themselves and placed defendant under arrest. They called in another officer who was waiting on the outside and the three of them searched the store for other similar publications. They siezed a number, most of which were in the room in which the business was conducted, although there were a few obtained from the basement.

At the trial the following publications which were seized on the occasion in question were offered and admitted in evidence: “Sun Fun,” No. 3, one copy; “SunDeck,” April 1963, 8 copies; “Nudists’ Leisure,” 3 copies; “Sun and Health,” April 1963, 7 copies; “Gymnos Sundeck,” No. 124, 7 copies; “Tidlosa,” No. 5, 5 copies; “International Nudistour Guide,” Vol. I, No. 2, 3 copies; “National Nudist,” Vol. I, No. 3, 9 copies. All are magazine-type publications (sometimes herein referred to as books). Four of the publications are 7X9 inches and the remainder are 9X11 inches in size.

Prior to the admission of these exhibits in evidence, Detective Webb identified them. It was developed in his testimony that each of these publications contained photographs of nude men and women. Detective Fry stated that after defendant was arrested he admitted that he knew what was in the magazine he had sold them. Upon cross-examination of Detective Webb defendant elicited the testimony that there were thousands of books and magazines of various kinds in the store in question. Also, upon cross-examination, Detective Fry stated that he had seen nude pictures and statues at the Art Museum.

It was stipulated at the trial that the jury utilized 25 minutes in its examination of the exhibits.

Defendant offered to produce two witnesses to testify as experts, and when the court ruled that the issue was not a proper matter for expert testimony the defendant made an offer of proof to produce Barney Whippold of the St. Louis Globe-Democrat who would testify that he had been a newspaper reporter for 32 years, had done extensive reading, had taken several courses in literature, and that, based upon his experience and his travels, it was his opinion that the magazines in question would conform to the general community standards of the State of Missouri and were not obscene. A similar offer was made in regard to testimony which it was said would be given by Donald Finke who was a photographer with 22 years’ experience. An objection to the proffered testimony was sustained.

Other evidence will be stated in the course of the opinion.

Defendant’s first contention is that the court erred in overruling his motion to suppress evidence and in admitting in evidence the publications in question. His reasons for that contention are that “(a) the officers seizing the exhibits had no search warrant and were provided with no guide to the exercise of informed discretion in determining which magazines were obscene and subject to seizure and hence the search and seizure of the exhibits contravened appellant’s rights to freedom of speech under Art. I, § 8, Mo.Const.1945, and the First and Fourteenth Amendment to the Federal Constitution; and (b) the search of appellant’s establishment was a general exploratory search for evidence and not incidental to the arrest (even if the arrest were valid) and accordingly the search and seizure contravened appellant’s right to be free from unreasonable searches and seizures in violation of Art. I, § IS, Mo.Const.1945 and the Fourth and Fourteenth Amendment to the Federal Constitution.”

The evidence adduced on the motion to suppress was substantially the same as that given at the trial with the following additional evidence: There was testimony that on March 12, 1963, Detectives Webb and Fry visited the book store managed by defendant and purchased a magazine, “Con-queress Club,” and five pictures. This material was submitted to Mr. Freeman, City Counsellor, who advised them that such was obscene. They returned to the store the next day and purchased “Western Nudist,” Vol. 1. While this publication was not placed in evidence, we think it is reasonable to assume that it was similar to the eight nudist magazines admitted in evidence at the trial. The officers were on night duty at that time so they placed this publication in a safe and, on March 20, when they were again working on the day shift, they took it to Mr. Freeman and also to Mr. Vettori, associate prosecuting attorney, and each of those officials advised them that “Western Nudist” was obscene. The arrest of defendant and the search of the premises occurred the next day.

It is well established that “only ‘unreasonable searches and seizures’ are within the constitutional prohibition. Art. 1, § 15, Const. V.A.M.S.; State v. Watson, 329 Mo. 158, 44 S.W.2d 132; State v. Egan, Mo.App., 272 S.W.2d 719. ‘All illegal searches and seizures are “unreasonable” under the constitutional provisions, while lawful ones are reasonable.’ ” State v. Cohn, Mo.Sup., 347 S.W.2d 691, 695. And, it is elementary that an officer may make a lawful arrest without a warrant. The general rule is that he may arrest without a warrant any person whom he has reasonable cause to believe has committed a felony and anyone committing a misdemeanor in his presence. State v. Berstein, Mo.Sup., 372 S.W.2d 57; State v. McBride, 327 Mo. 184, 37 S.W.2d 423. And the rule has been liberalized by § 84.090 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise indicated) in that police officers of the City of St. Louis are authorized to arrest without a warrant any person whom they have reasonable grounds to believe has committed a misdemeanor even though such does not occur in the presence of the officer. State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551.

Assuming, as we hereinafter decide, that “Sun Fun” was obscene, there can be no doubt but that the arrest in this instance was lawful. The officers had seen that publication in the possession of defendant, who obviously intended to sell it, and, in fact, defendant did sell it to them shortly thereafter. Thus, two offenses under the provisions of § 563.280 had apparently been committed by defendant in the presence of the officers.

It is a settled rule in this state that when a defendant has been lawfully arrested a search may be made of his person and of the premises where he was arrested without the necessity of a search warrant. State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743. And the Supreme Court of the United States has said that “the right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.” Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 5, 70 L.Ed. 145. The quoted rule has been approved in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.

The statute in question provides that every person who “knowingly shall * * * have in his possession, with intent to sell or circulate * * * any obscene, lewd, licentious, indecent or lascivious book, pamphlet * * *.” § 563.280. The State, in this instance, has treated the possession of obscene magazines as one offense regardless of the number of different publications involved. It therefore was reasonable for the officers, after arresting defendant, to make a search of the premises under defendant’s control in order to obtain publications similar to the one purchased as additional evidence of the offense. We can see no basis for defendant’s contention that the search was merely a general exploratory search for evidence of other offenses. The cases cited in that connection involve extensive, unreasonable, and unrestrained searches as appears in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.

In support of his contention that the instant search violated constitutional safeguards, as stated in (a) supra, the defendant relies primarily upon Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, and A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809. Marcus arose under Missouri statutes, § 542.380 et seq., which specifies a procedure whereby a search warrant may be issued upon complaint of an officer for various items, including obscene publications, and, if such are seized, after a hearing following notice to persons claiming an interest in the property, the court may order same destroyed. In Marcus, search warrants were issued and the officers seized all publications which they considered obscene which totaled approximately 11,000 copies of 280 different publications. Upon the hearing of the motions to quash the search warrants and for return of the property, the circuit court ruled that 100 of the publications were obscene and should be held as evidence for possible criminal prosecution and thereafter destroyed. The remaining 180 publications were ordered to be returned forthwith to the rightful owners. This court affirmed, 334 S.W.2d 119, and thereafter the cause reached the Supreme Court of the United States where the judgment was reversed. In so ruling that court said: “We believe that Missouri’s procedures as applied in this case lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled. * * * The warrants gave the broadest discretion to the executing officers * * * and left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted ‘obscene * * * publications.’ * * * They were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.

* * * In consequence there were suppressed and withheld from the market for over two months 180 publications not found obscene. The fact that only one-third of the publications seized were finally condemned strengthens the conclusion that discretion to seize allegedly obscene materials cannot be confided to law enforcement officials without greater safeguards than were here operative. Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees.” 81 S.Ct. 1716, 1717.

The Kansas case involved statutory procedures very similar to those involved in Marcus. It was a proceeding instituted for the purpose of destroying certain paperback novels alleged to be obscene. Before issuing a search warrant the district judge examined seven books and found that they appeared to be obscene. The search warrant authorized seizure of 59 titles, all of which came in the grouping of “Nightstand Books.” The sheriff found 31 of the titles on the premises involved and seized all copies thereof, a total of 1,715 books. Ten days later a hearing was held and the books were ordered destroyed. The Kansas Supreme Court affirmed. 191 Kan. 13, 379 P.2d 254. The Supreme Court of the United States reversed. That court stated that for the same reasons outlined in Marcus, “we hold that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K [News Service] was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient.” 84 S.Ct. 1725.

We should also mention the case of Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. In that case the court sustained a New York statute which afforded injunctive relief (and subsequent destruction) against the sale of allegedly obscene publications which provided for a hearing within one day after joinder of issue and a decision within two days after the conclusion of the trial.

The Marcus and Kansas cases are to be readily distinguished from the case at bar. They are cases wherein the primary object was to seek authority to destroy large quantities of books. The books were seized and held for a considerable period of time before there was a proper judicial determination of the issue of obscenity. The Supreme Court was concerned about the fact that constitutional safeguards were not provided to protect nonobscene publications from being seized and thus withheld from dissemination. The instant case involves a prosecution for violating a criminal statute and hence there were the usual constitutional protections that are afforded all defendants in that type of case. This distinction is clearly pointed out in the dissenting opinion of the Chief Justice in Kingsley, as follows:

“This is not a criminal obscenity case. Nor is it a case ordering the destruction of materials disseminated by a person who has been convicted of an offense for doing so, as would be authorized under provisions in the laws of New York and other States. It is a case wherein the New York police, under a different state statute, located books which, in their opinion, were unfit for public use because of obscenity and then obtained a court order for their condemnation and destruction. The majority opinion sanctions this proceeding. I would not. Unlike the criminal cases decided today, this New York law places the book on trial. There is totally lacking any standard in the statute for judging the book in context. The personal element basic to the criminal laws is entirely absent. In my judgment, the same object may have wholly different impact depending upon the setting in which it is placed. Under this statute, the setting is irrelevant.
“It is the manner of use that should determine obscenity. It is the conduct of the individual that should be judged, not the quality of art or literature. To do otherwise is to impose a prior restraint and hence to violate the Constitution. * * * ” 77 S.Ct. 1330.

Also in the case under review it is apparent that the officers were provided with a guide to aid them in exercising an informal discretion in determining which publications should be seized as obscene. Prior to making the arrest they submitted “Western Nudist” to two attorneys entrusted* with law enforcement duties and were advised that it was obscene. It is significant therefore that when they made the search of the defendant’s business quarters the only publications seized were nudist magazines which were undoubtedly similar to “Western Nudist.” Moreover, in this case, only 44 publications were taken (a reasonable number for use in evidence) and such could not greatly impair the right of free dissemination of printed matter as distinguished from Kansas (1,715 books) and Marcus (which involved 11,000 copies).

We accordingly rule that the search in this case was a reasonable search following a lawful arrest and hence the trial court did not err in overruling the motion to suppress and in subsequently admitting the publications in evidence.

Defendant has also briefed the contention that the court erred in overruling his motions for judgment of acquittal “because the magazines were not obscene, and accordingly prosecution is barred by Art. I, § 8, Mo.Const.1945, and the First and Fourteenth Amendments to the Federal Constitution relating to freedom of speech and due process of law.” In our consideration of the issue presented we should apply certain established principles. Some of those principles are stated in the leading case of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), as follows: “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. * * * All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained * * *. We hold that obscenity is not within the area of constitutionally protected speech or press. * * * However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.” 77 S.Ct. at pages 1308, 1309, 1310. And the approved test is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 77 S.Ct. 1311. We conclude from later decisions of the Supreme Court of the United States that “community,” as the word is used in determining standards of decency, does not mean the local area involved but relates to a national standard. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639; Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793.

In cases in which fact questions are submitted to a jury, appellate review of the fact issues is ordinarily limited to a determination of whether there was substantial evidence from which the jury could reasonably have found the facts in question. However, we accept the now prevailing view that in obscenity cases the issue for determination is subject to constitutional limitations and the courts are faced with an obligation to make an independent determination of the constitutional issue which cannot be avoided by considering “obscenity” as a fact question only. See “Censorship of Obscenity,” 45 Minn.Law Review 114. We will accordingly make our own determination of the mixed question of law and fact as to whether the publications in question are obscene.

It is impractical to attempt a detailed description of all of the publications we are called upon to review. In that connection we have in mind that they cannot be judged by one or more isolated photographs but must be judged as a whole. However, we will endeavor to ascertain the dominant theme or effect of each publication because we have the view that the dominant theme is entitled to great weight in determining the character of the entire publication. We also state at the outset that there is no contention that the printed passages in the books are objectionable. All of the books purport to describe nudist organizations and to advocate the practice of nudity. However, we have concluded from an examination of the contents and arrangement of these books that the advocacy of nudity therein is a mere pretext or feint whereby publishers and distributors of obscene publications seek to avoid successful prosecution and punishment under obscenity statutes such as the one under consideration.

All of the books are replete with actual photographs of nude persons of both sexes, many of which clearly depict both male and female genitalia, including the pubic hair. Some of the pictures show nude persons of all ages engaged in the normal group activities that apparently characterize the usual nudist park. However, predominating in all of these publications are close-up photographs of attractive, shapely, young women, most of whom apparently range in age from 16 to 25 years. These photographs are posed so as to portray both the face and figure of these young women in a most alluring manner. Most of those photographs are of the front view and, as stated by one of the witnesses, “show everything.” Some show one nude woman on a double page in order to depict a closer view of her body than could be done on one page. See, for example, “National Nudist,” pages 27, 28. While these are not necessarily poses suggestive of sexual intercourse, one would be naive indeed to conclude that pictures of that type would not arouse the prurient interest of the average man. A considerable number of the photographs are in color which, of course, make the nude persons appear more natural and would likely increase the prurient appeal. It is obvious that defendant considered that the publications in question would have a special appeal to his customers because all of them have a price mark on the front cover which is twice the price quoted on an inside page. Also, it occurs to us that “Tidlosa,” printed entirely in a foreign language, apparently Danish, would not be distributed in the United States in order to advance the practice of nudism because only a very small number of our people could read the printed message. Pictures, on the other hand, are universally understood, and the prurient appeal of those in “Tidlosa” would be the same as in any of the other books. We also note that on page 37 of “SunDeck” there is a close-up photograph of a young man and young woman facing the camera with the sex organ of the male in a condition of erection.

While no doubt there are some people who sincerely believe that the practice of nudism is beneficial and desirable, it is unquestioned that we live today in a clothed civilization and the average normal American (regardless of where he may reside), except for legitimate works of art, etc., regards complete nudity, especially when it brazenly exhibits the adult male and female genitalia, as shocking, vulgar, and indecent. We have considered each of the exhibits in this case in its entirety and have concluded that each must be characterized as obscene. The dominant theme of each is to display the sex organs and nude bodies of attractive young people in a manner that will appeal to the prurient interest of the average person (applying contemporary community standards) in this nation. We accordingly rule that the trial court did not err in overruling defendant’s motions for judgment of acquittal.

Defendant has also briefed the contention that the court should have sustained his motion for a judgment of acquittal because there was no proof of scienter as required by § S63.280. This contention is based primarily upon the premise that defendant could not have known that the magazines were obscene until there had been a prior adversary proceeding establishing such obscenity. We have already held that the ruling in the Kansas case is not applicable to the situation presented in the case at bar. Here there was ample evedence from which the jury could reasonably have found that defendant had knowledge concerning the obscene nature of the magazines in his possession. When he sold “Sun Fun” to the officers he pointed out that it had pictures of “some real nude women” in it. Each of the other publications seized by the officers had a picture of a nude woman on the outside front cover and most of them also had one on the outside back cover. One could not have had possession of such a publication without possessing some knowledge as to the nature of its contents. The evidence was sufficient to comply with the requirements set out in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. We rule this point against defendant.

Instruction No. 2 is an instruction which defines various words contained in the main verdict-directing Instruction No. 1. We agree with the contention of defendant that it is reversibly erroneous. This for the reason that the definition of “obscene” includes the word “indecent” and the definition of “indecent” includes the following: “that which would arouse lewd and lascivious thoughts in the susceptible.” Therefore, the jurors could have found that the magazines in evidence were obscene if they concluded that such would arouse the prurient interest of the susceptible. That is not in accord with the test specified in Roth, supra. To the extent that our ruling may conflict with State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, that case should no longer be followed.

Since this cause must be reversed and remanded, we need not actually decide defendant’s contention that Instruction No. 1 is erroneous. We note, however, that the instruction does not make it clear that the publications should be considered as a whole, and that a finding of obscenity should be based on a determination of whether, applying contemporary community standards, the material would appeal to the prurient interest of the average person. Prior to another trial counsel for the State should redraft that instruction so that it will comply with the views herein expressed.

One other point should be considered because it may arise in the event the case is tried again. Defendant contends that the court erred in excluding his proffered expert testimony to the effect that the publications would conform to general community standards and were not obscene. The court, in excluding that testimony, followed our case of State v. Becker, supra, wherein we held that such testimony was not within the proper scope of expert testimony. We have reexamined our decision in Becker and have considered the fact that many courts have admitted expert testimony, especially on the issue as to the literary or artistic value of publications alleged to be obscene. We have concluded, however, that on the issue of community standards and obscenity, the ruling m Becker is correct and that the trial court did not err in following it. In recent years there has been wide dissemination of knowledge by the press, radio and television. Most of our citizens have traveled rather extensively. Judges and jurors certainly have knowledge concerning the general community standards relating to moral conduct and obscenity. In the field of obscenity the average citizen is as capable of judging a publication as an alleged expert. Moreover, if the witnesses had been permitted to give an opinion as to whether the magazines were obscene they would have invaded the province of the jury by expressing an opinion on one of the essential ultimate facts to be determined by it. See Gillmore v. Atwell, Mo.Sup., 283 S.W.2d 636 [6],

The judgment is reversed and cause remanded for a new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. Earl Janies HOLMES, Appellant.
    No. 50824.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 12, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, George D. Chopin, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Earl James Holmes, pro se.
   HENLEY, Judge.

By an amended information defendant was charged with the crime of robbery in the first degree by means of a dangerous and deadly weapon, Sections 560.120 and 560.135, this information also charging him under the Habitual Criminal Act (Section 556.280) with nine prior felony convictions. (Statutory references are to RSMo 1959 and V.A.M.S.) A jury found him guilty as charged. Prior to submission and outside the hearing of the jury the court heard evidence and made findings that the defendant had been convicted of and sentenced and imprisoned for prior felonies. The punishment was assessed by the court and the defendant sentenced to eighteen years in the penitentiary. He appeals from that judgment and sentence, his motion for new trial being overruled.

Defendant was represented at the trial by counsel appointed by the court, but is not represented by counsel on appeal.

We find in the file a brief apparently prepared by defendant to which is attached his pro se motion to withdraw his brief. He prays further that the court consider his appeal as though he had not filed a brief as he says was done in State v. Bosler, Mo., 366 S.W.2d 369. No doubt he considers this procedure to be to his advantage in view of our rules. His motion is sustained and we consider his appeal as though no brief had been submitted by him. His rights are, however, fully protected, (if, in fact, he does not have an advantage by this procedure) for under our rules, where no brief is filed by him this court is required to review the essential portions of the record and all assignments of error properly preserved in his motion for new trial, and we may also consider plain errors not raised in the motion for new trial. Rules 28.02 and 27.20 (references to rules are to Supreme Court Rules and V.A.M.R); State v. Reece, Mo., 324 S.W.2d 656.

His motion for new trial contains nine assignments of error. The first assignment is in excess of eight pages long, but condensed, it constitutes a contention that the court erred in (a) admitting evidence identifying, and the receipt by the police and their custody of, a double-barrelled sawed-off shotgun, and, (b) the admission of this shotgun in evidence. The remaining eight assignments are that the court erred: (1) In sustaining the state’s objection to that portion of defendant’s argument in which he sought to refer to the state’s failure to offer evidence of fingerprints that might have been taken from articles touched inside the premises by the guilty party, (2) In admitting in evidence a picture alleged to be that of defendant, (3) In application of the Habitual Criminal Act, (4) In refusing instruction No. A offered by defendant on alibi, (5) In giving instruction No. 3 on the defense of alibi, (6) Because “the verdict was against the weight of the evidence”, (7) In overruling his motion for judgment of acquittal at the close of the evidence, and, (8) Because he was denied due process and equal protection of the law in that he was held too long in jail and did not get a speedy trial.’

The evidence adduced by the state would warrant a finding of the following facts: On the evening of July 8, 1963, Eugene H. Anderson and Mary Maney Bell, his employee, were at work in Anderson’s donut shop known as Aza Donut Company located at 5618 Page Boulevard in the City of St. Louis. At about the hour of 11:25 P.M. defendant entered the shop, bought a pop-sicle from Mrs. Bell and left. About five minutes later defendant returned, this time carrying under his right arm a double-barrelled sawed-off shotgun covered by a green cloth. Anderson, then cutting donuts at a table, saw the defendant and his gun “out of the corner of his eye” and held his hands up above his head, as defendant “flipped” the cloth from the gun. At defendant’s direction Anderson put his hands down, turned his back to defendant and continued his work. By this time defendant had walked behind a glass display case and to the cash register on a counter. He opened the cash register drawer by pressing one of the keys and took therefrom in excess of $40. Noticing that Mrs. Bell was watching him he told her to turn around and continue her work and then directed Anderson to come to him and turn his back toward him. Removing from Anderson’s hip pocket a wallet containing $5 or $10 and some papers, he dropped only the papers to the floor and left the premises. The police were informed of the robbery and given a description of the defendant.

On the evening of July 19, 1963 a double-barrelled sawed-off shotgun was taken from defendant by one Emmett Williams and turned over to the police. This shotgun, marked State’s exhibit 1, was identified by Anderson and Mrs. Bell at police headquarters and at the trial as being the guu defendant had at the donut shop the evening of July 8. It was received in evidence over defendant’s objection. During a discussion between counsel and the court in the judge’s chambers regarding the admissibility in evidence of this shotgun it was disclosed that defendant was charged with another felony (exhibiting a dangerous and deadly weapon in a rude, angry and threatening manner) growing out of an occurrence on July 19 when Williams took this gun from defendant. None of the facts of this occurrence, other than the mere fact of the taking of the gun from defendant, was heard by the jury.

Defendant was arrested on July 23 and that evening Anderson and Mrs. Bell identified him as the man who had robbed the donut shop on July 8. At that time, and on the evening of the robbery, according to the description of these two witnesses, defendant had long hair “up in a page boy, like ladies wear their hair” and a goatee. A photograph, marked state’s exhibit 2, apparently showing defendant as above described and with a mustache, was identified by these witnesses as being a fair representation of defendant on the date of the robbery and on the date they identified him at police headquarters. During the trial defendant was clean shaven with his hair cut short.

Defendant’s evidence consisted of the testimony of two of his sisters and two of their sons. Their testimony was that defendant had arrived at their residence in St. Louis between eight and nine o’clock the evening of this robbery and that he remained there in their presence throughout that night and until July 10 when each of the two sisters lent him $1 from their respective ADC checks received that day. Defendant did not testify.

As to defendant’s contention that the court erred in admitting the shotgun in evidence, in admitting evidence that the witness Williams took this gun from him eleven days after the robbery and gave it to the police, and erred in permitting identification of the gun by Anderson and Mrs. Bell, he says that this constituted proof of the commission of another separate and distinct crime of which he then stood charged and violated his right to be tried solely for the offense of first degree robbery.

“The well established general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant’s right to be tried for the offense for which he is indicted.” State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922, 923. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307. One of the exceptions to this rule is that evidence of other crimes is competent to prove the specific crime charged when it tends to establish the identity of the person charged with the commission of the crime on trial. Apparently the purpose of evidence pertaining to the shotgun was to further prove identity of defendant. This court also said in State v. Reese, supra, 274 S.W.2d 1. c. 307, that there are limitations on the above exception to the general rule and quoted this limitation from 20 Am.Jur., Evidence, Section 312:

“ ‘Generally speaking, it is only where the identity of the accused is not definitely connected with the offense on trial that other offenses may be introduced to connect and identify him with the case on trial. If the identity of the accused is established by other evidence and is therefore no longer an issue, it is improper to admit evidence of other crimes on the theory of proving identity. * * .* It is not proper to admit details of separate and distinct crimes for the purpose of showing identity.’ (Emphasis supplied.)”

The fallacy, however, in defendant’s position or contention is that there is no evidence in this record of the details of another crime or, in fact, of another separate crime; the state’s attorney, under the specific directions of the trial judge in chambers, being particularly careful before the jury not to elicit evidence of such other crime and its details. As a matter of fact, there was no evidence heard by this jury that defendant had ever been arrested, or taken in custody, or charged with any crime growing out of the incident of Williams taking the gun from him. The evidence was totally devoid of any facts as to where, why, or under what circumstances the gun was taken from him. The evidence objected to by defendant described in the first assignment of his motion for new trial was admissible and the court did not err in its rulings thereon.

In the second assignment of his motion for new trial defendant apparently contends that he was entitled to draw an unfavorable inference in argument from the fact that the state failed to take defendant’s fingerprints from the articles he touched in the premises robbed and produce those fingerprints at the trial. There was evidence that defendant touched a key of the cash register and papers he removed from Anderson’s hip pocket and no doubt he touched the closed screen door which he had to open in entering and leaving the premises. But there is no evidence fingerprints were taken by the police from those articles or from defendant’s fingers for comparison. It was not incumbent upon the state to take defendant’s fingerprints from the articles he touched or, if taken, to produce them in evidence. Nor is the state required to account for their absence. At most the fingerprints would have been merely cumulative evidence. Roehl v. Ralph, Mo.App., 84 S.W.2d 405, 413 [10]; State v. McMillian, Mo., 338 S.W.2d 838, 845 [8]; 23A C.J.S. Criminal Law § 1099, p. 179. This argument was no doubt intended to divert attention from the real issue. The court did not err in sustaining the state’s objection to the argument.

Defendant's next assignment of error is in the admission in evidence of a picture identified at trial by Anderson and Mrs. Bell to be that of defendant. He contends that the “proper foundation was not laid as to who took the picture and when * * He also contends that the picture was hearsay evidence and, in that it was “self-incriminating” and “[deprived] him of due process of law”, that it violated his constitutional rights. Mrs. Bell testified that defendant had long hair and a goatee at the time of the robbery, as well as at the time of her identification of him at police headquarters. At the police station he challenged identification of him, saying “they’re crazy”, and his defense was that he was not at the donut shop and therefore was not the person who committed the robbery. As stated, at the trial he was clean shaven with his hair cut short. Gladys Holmes, his sister, was handed this picture during cross-examination. She said the picture was an accurate representation of her brother.

The photograph was relevant and material on the question of the accuracy of his identification by the witnesses. State v. Childers, Mo., 313 S.W.2d 728, 731 [5]. The assignment is without merit and no error was committed in its admission.

The fourth assignment is that the court erred in applying the Habitual Criminal Act in that it failed to find the defendant had previously been convicted of an offense punishable by imprisonment in the penitentiary. We understand defendant’s contention to be that although the court found defendant had been convicted of prior felonies and sentenced to imprisonment in the penitentiary (and imprisoned therefor) there was no specific finding these offenses were those “punishable by imprisonment in the penitentiary.” There is no merit in the contention. The record shows that the court made nine separate findings for as many previous convictions (six for burglary in the second degree, one for carrying a concealed weapon, one for escape from the penitentiary, and one for larceny from the person of less than $30.). In each the offense was punishable by imprisonment in the penitentiary and in each of four (three for burglary, second degree, and one for escape from the penitentiary) the court found that defendant was sentenced to the penitentiary, and duly imprisoned therefor. This was equivalent to a finding that these offenses were “punishable by imprisonment in the penitentiary.” The findings of the trial court complied with Section 556.280(2).

Assignment No. 5 is that “the Court erred in refusing to give instruction Number A offered by the defendant.” This assignment is insufficient to preserve anything for review. Rule 27.20; State v. Burkhart, Mo., 242 S.W.2d 12, 14 [3].

His basic complaint in his next assignment is that instruction No. 3, on the defense of alibi, uses the word “alibi” and the use of that word, he says, is prejudicial to him. He does not point out wherein or how it prejudices him. An instruction identical to No. 3 was approved in State v. Knicker, Mo., 366 S.W.2d 400, 404 [8]. In State v. Griffin, Mo., 336 S.W.2d 364, 368 [9], the defendant contended that the use of the word “alibi” prejudiced him; the court held the point without merit and overruled it. We again so hold and rule.

Assignment No. 6 of his motion is “The verdict of the jury was against the weight of the evidence.” The assignment is too general and preserves nothing for review. Rule 27.20; State v. Maxwell, Mo., 376 S.W.2d 170, 173 [4].

His assignment that “the Court erred in overruling the defendant’s motion for judgment of acquittal at the close of the entire case” is completely refuted by the mere recital of the state’s evidence.

The next, and last, assignment in his motion for new trial is that he was denied his constitutional right of a speedy trial (Section 18(a), Article I, Constitution of Missouri, V.A.M.S. and the Sixth Amendment to the Constitution of the United States), in that he was held without trial between July 23, 1963 and March 9, 1964. Section 545.890 providing that any person indicted and committed to prison not brought to trial before the end of the second term of court after the indictment shall be entitled to discharge, unless the delay shall happen on the application of the prisoner, etc., has been held to be an implementation of a defendant’s constitutional right of a speedy trial. State v. Hicks, 353 Mo. 950, 185 S.W.2d 650, 651-652 [1, 2]. The record shows that on September 24, October 28, and November 26, 1963 this case was continued at the request of the defendant. On January 16, 1964 it was continued by consent of the parties, and on February 7 it was continued at the request of the defendant to March 9, 1964, the day this trial began. Of these five continuances in less than eight months four were at his sole request and the fifth was by consent of both parties. We hold that his constitutional rights have not been violated, such denial of a speedy trial as there was being occasioned by his own act.

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 concur.