author: HIGGINS, Commissioner.

text:
    Melvin HOFFMAN, Appellant, v. Elaine POLSKY, Respondent.
    No. 50825.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.
    Keith Martin, Campbell & Clark, Kansas'. City, for appellant.
    George L. Gordon, Joseph E. Stevens,. Jr., Daniel M. Dibble, Kansas City, for respondent, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.
   HIGGINS, Commissioner.

Action for $25,000 damages for personal injuries. The trial court directed a verdict for defendant at the close of plaintiff’s evidence and plaintiff appealed. The amount in dispute is thus $25,000 and this court has jurisdiction. Art. V, § 3, Mo. Const. V.A.M.S.; § 477.040 RSMo 1959,. V.A.M.S.

This suit arises from the game of golf,, and we state the facts in some detail because the issue is whether plaintiff made a submissible case.

Plaintiff’s injury occurred June , 26, 1960, at Meadowbrook Country Club in1 Johnson County, Kansas. Defendant was playing in a foursome and each member had driven from No. 1 tee. Defendant’s drive was the-shortest; she thus became first up for the second shot or stroke, and it was this shot that admittedly struck plaintiff. Just prior to the tee shots of defendant’s foursome, plaintiff and his companion finished playing No. 1 hole and were going to No. 10 tee to join friends there to play the last nine holes. No. 10 tee, fairway, and green were parallel to No. 1 tee, fairway, and green, the two fairways being separated by a rough or unmowed area. No. 1 hole wais almost straight ’east from No. 1 tee, the fairway having neither curve nor “dogleg.” It was explained that the fairway is the part of the .golf course between the tee where a player •starts play and the green surrounding the Role which is the goal of the player. The fairway is mowed low but not so closely as the green. To each side of the fairway is .an area of rough which is not kept in the manner of the fairway in that trees are often located there and grass is permitted "to grow higher than in the fairway. At Meadowbrook there were a couple of full-grown trees and a water fountain in the rough to the north of No. 1 fairway. This rough would be to defendant’s left as she walked in No. 1 fairway away from No. 1 tee, and plaintiff was in this rough when •defendant’s golf ball struck his left hand. Exhibit A in evidence showed No. 1 fairway .and the rough on its north side. The fair'way was quite level.

Defendant, called as a witness by plaintiff, indicated that the trees were behind or to the north of plaintiff at a time after •defendant hit her ball and after plaintiff ■was hit. It is not shown where plaintiff was in relation to the trees at the time defendant addressed the ball prior to hitting her ■second shot. Defendant also testified that she saw plaintiff on No. 1 green prior to 'hitting her first or tee shot and assumed when he disappeared from view that he •went to No. 2 tee. This would be a normal •expectation, and such course would have •taken plaintiff to a point south of No. 1 ■green (and southeast of No. 1 fairway). Defendant’s tee shot carried some fifty yards and came to rest in the fairway near the rough. She walked northeasterly from ■the tee to her ball where it lay on the left ■side (to her) of the fairway and she did not ■see plaintiff during this walk. Prior to hitting her second shot, defendant observed her fellow players and looked toward the hole “the way the ball is supposed to go.” She also looked to the north (toward No. 10 fairway). Defendant testified that she •did not see plaintiff, and that no one was in danger in her intended line of flight to the green, so she gave no warning of her intention to hit her ball. Defendant, with no intention to “pull” or “fade” her shot, struck the ball with her 3-wood club. It went perfectly straight as intended until it “hooked,” i. e., it went suddenly to her left. According to defendant, the shot carried about ISO yards. While watching the ball defendant saw plaintiff in the general area of the trees in the north rough and, when her ball hooked, the foursome (including defendant) screamed “fore” (the customary warning) and “watch out.”

According to plaintiff’s partner, he and plaintiff were about halfway of the approximately 380 yards between No. 1 tee and green and about 25 yards in the rough north of No. 1 fairway. He also stated that defendant gave no warning before striking her ball and that she was about sixty yards west of plaintiff at the time. He acknowledged that golfers frequently do not hit a ball straight and stated that defendant hit a bad shot which she did not intend to hit directly at plaintiff.

Plaintiff, a golfer for over thirty years, stated that he and his partner had played the first nine holes beginning about ten in the morning, and were going to meet some other golfers for the back nine. They finished the front nine early and replayed No. 1, after which they started back toward No. 10 tee, walking about twenty-five to fifty feet in the rough between No. 1 and 10 fairways. He stated the view between him and the players that he saw in No. 1 fairway was clear. He admitted that if defendant had hit a good shot it would not have come anywhere near him; that defendant's shot was a bad one which hooked to hit him; that golfers do not expect to hit bad shots, and that a warning in relation to a bad shot would need to come only after the shot was determined to be a bad one and in danger of hitting someone.

Plaintiff’s injury occurred in Kansas but we are not cited to, nor have we found, governing Kansas law. In this situation we apply common-law principles.

Plaintiff limits his appeal to a contention that he made a submissible case on defendant’s failure to warn prior to striking her ball. This léads to the precise issue of whether, under the evidence in this case, defendant had a duty to warn prior to striking her hall. Plaintiff relies on Page v. Unterreiner, Mo.App., 130 S.W.2d 970. The question was “whether or not there was evidence that the defendant was negligent at the time he made his second shot in not giving the plaintiff proper warning, since he knew that plaintiff was about forty-five yards ahead of him, and in somewhat the same direction that he was trying to drive.” 130 S.W.2d 972 [2], The evidence showed that plaintiff, a caddie in defendant’s foursome, was in plain view forty to forty-eight yards in front of defendant, and no more than ten to twelve feet from the direct line of flight of the ball if it traveled from defendant’s club directly to the flag which marked the hole. Under those circumstances, it was held that defendant was negligent in not warning before striking his ball, and the court approved an instruction which required defendant to give a warning prior to striking his ball if he knew or should have known plaintiff was in danger of being struck. Plaintiff also cites Robinson v. Meding, 2 Del. 578, 163 A.2d 272, 82 A.L.R. 2d 1176, where plaintiff, a greenskeeper, was watering the green at the time of the accident. Plaintiff had moved to the apron of the green and did not see defendant but he was in plain view of defendant at the time defendant hit his hall. Defendant failed to warn of his intention to hit his ball before he hit, and the failure was held to be negligent because plaintiff, being on the edge of the green to which defendant intended to shoot, was in the general direction of defendant’s drive.

These cases do not hold that a golfer has an absolute duty to warn everyone in the area of his play before making each shot. Rather, they stand for the proposition that one about to strike a golf ball must exercise ordinary care to warn those within the range of intended flight- of the ball or general direction of the drive,'and the existence of such a duty to warn must be determined from the facts of each cáse.

Robinson v. Meding, supra, is readily distinguishable from the present case because the plaintiff there was standing at the edge of the green to which plaintiff intended to drive his ball, and the duty to warn under such circumstances is obvious. Page v. Unterreiner, supra, also is distinguishable from the present case. The first distinction is that Page was Unterreiner’s caddie, and was in full view of defendant separated by 40 to 48 yards and but 10 to 12 feet to the left of the intended direction of defendant’s' drive. In contrast, Mr. Hoffman was not where he was expected to be, and he was not seen by Mrs. Polsky; he was a greater distance away and three to ten times the distance off the intended line of flight of the ball as defendant prepared to strike it. Her ball was near, but inside the left edge of No. 1 fairway, and No. 1 green, her intended goal, would be at that time to the southeast. The testimony shows that at this same time plaintiff was somewhere between 60 and 150 yards in front of, and 25 to 150 feet in the rough and to the left of defendant. In this position plaintiff was to the northeqst of defendant and thus not in the general direction of defendant’s drive or within her intended line of flight, which was down a clear fairway. The evidence was not clear as to whether plaintiff was in front of or behind the trees in the rough prior to defendant’s shot. This circumstance would not change the distinctions made here, however, because plaintiff’s evidence was that he was not in danger until after defendant hit her ball and it thereafter hooked in his direction, and it was admitted by1 plaintiff that then is when a player must warn, which is the procedure followed by defendant.

The distinctions made here are supported by decisions from other states. Benjamin v. Nernberg, 102 Pa.Super. 471, 157 A. 10, is directly in point.- In that case, plaintiff was lining up his putt on No. 6 green and ■ was struck by a ball driven by defendant off . No. 7 tee which hooked (west to defendant’s left). No. 6 green was not in the line of play from No. 7 tee. It was 120 feet to the left and about 100 feet forward of that tee. When defendant drove no one was in front of him, and when the ball hooked a companion yelled “fore,” but the warning was not sufficiently timely to save plaintiff. Defendant contended that he was not bound to warn under the circumstances. The trial court agreed and entered judgment, notwithstanding plaintiff’s jury verdict. The Superior Court of Pennsylvania affirmed, relying on Andrew v. Stevenson, 31 Scottish Law Review 194, 198, which is also in point. There, the pursuer (plaintiff), in a foursome, was playing to the third hole and, having played his approach shot, walked to the right and watched his opponent’s play. The defender (defendant), playing in a single, when eighty-four yards behind pursuer and not playing over anyone’s head or driving into anyone but down a clear and open course, played, but his ball “sliced” and, diverting to the right, hit the pursuer. The Sheriff (judge) held that in those circumstances the defender was not liable, and the Pennsylvania court reached the same result in its case, Benjamin v. Nernberg, supra, saying, "the entire No. 7 fairway was clear before the defendant; plaintiff was not in the line of defendant’s play; he was not where any one could reasonably believe that he was in danger of being struck by a ball driven from No. 7 tee; it was not until after the ball was driven and it appeared that defendant had made a bad shot, and when the ball was going directly towards plaintiff, that any one thought it necessary to shout a warning. There was no duty, under the facts of this case, on defendant to warn plaintiff of his intention to play. We cannot see that defendant was at fault or that he disregarded any rule or custom of the game.” 157 A. 10, 11 [1], In Houston v. Escott, D.C., Del., 85 F.Supp. 59, plaintiff and defendant were playing the first and eighteenth holes whose fairways lay parallel to each other. Plaintiff was not more than 125 yards forward of and 50 yards south of and in full' view of defendant as he addressed his ball and hit it from the eighteenth tee. The point where plaintiff was standing when hit was approximately nineteen degrees left (or to the south) of the intended flight of defendant’s ball. The court granted summary judgment in favor of defendant, relying on the holding in Benjamin v. Nernberg, supra.

Applying these authorities to the facts of the instant case, we hold that defendant had no duty to warn prior to striking her ball, and therefore the trial court properly directed a verdict for defendant.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Willie SMALL, Appellant.
    No. 50722.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.

      Thomas F. Eagleton, Atty. Gen.¿ Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

      Taken as submitted by appellant.
   HIGGINS, Commissioner.

Appeal from an order overruling appellant’s motion to vacate judgment and sentence under Supreme Court Rule 27.26, V.A. M.R.

On February 26, 1963, Willie Small pleaded guilty to a charge of molesting a minor, a felony, and was sentenced to imprisonment in the penitentiary for a term of five years. Section 563.160, RSMo 1959, V.A.M.S.

The transcript on appeal shows the facts and chronology that follow: On October 8, 1962, appellant was taken before the Magistrate Court of New Madrid County, where he waived preliminary hearing on a complaint of “felony, to-wit: Rape.” He was bound over to the January term of Circuit Court and was committed to jail in default of bond. Information was filed in which appellant was charged with the crime of statutory rape of a child under sixteen years of age, alleged to have been committed October 6, 1962. On January 7, 1963, the Circuit Court appointed counsel for appellant and his case was set for trial on February 15, 1963. On February 26, 1963, appellant was before the court with his appointed attorney, at which time the state amended the information to charge appellant with “molesting a minor, a felony.” Appellant waived formal arraignment and entered a plea of guilty to the charge contained in the information as amended. Allocution was granted and the court imposed sentence and placed appellant on probation. On September 10, 1963, appellant was before the court, at which time the court found that appellant had violated the term of probation and ordered the sentence executed. The motion to vacate was filed March 9, 1964, and overruled without a hearing March 10, 1964.

Appellant’s motion contains three “Reasons Relied Upon for Relief Sought.”

The gist of the first such assignment is that appellant was not represented by counsel at preliminary hearing and was-thereby deprived of due process of law. Defendant acknowledges in his motion that he did have counsel at the time his plea of guilty was entered on February 26, 1963. The record, accuracy of which is not questioned, shows that counsel was appointed January 7, 1963; that appellant had the opportunity and reasonable time to consult with the attorney and with a friend; that he was advised of the nature of the crime charged by the amended information and the range of possible punishment before the plea was entered. We have held that “Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination,” State v. Turner, Mo., 353 S.W.2d 602, 604 [6-8], and any defect in connection with the preliminary hearing would be waived by failing to object and going to trial. State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302 [1], Such a waiver likewise occurs when a plea of guilty is entered by a defendant after being accorded the right of consultation with counsel. State v. Cooper, Mo., 344 S.W.2d 72, 75 [4,5]. See also State v. Richardson, Mo., 347 S.W.2d 165, 169 [6-8], Assignment (1) is denied.

In assignment (2) appellant contends that the judgment and sentence was unauthorized and in excess of the statute, arguing that the amended information was, if anything, a misdemeanor charge for which a penitentiary sentence could not be imposed. The information which originally charged appellant with the felony of statutory rape was amended to charge the crime of “molesting a minor, a felony,” to which appellant, with the assistance of counsel, pleaded guilty and then only after he was advised of the nature of the crime and the range of possible punishment. The transcript shows the amendment was accomplished by interlineation following the allegations of carnal knowledge of a twelve-year-old girl and before the formal words “contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.” The information as amended was sufficient to charge a violation of Section 563.160, RSMo 1959, V.A.M.S., entitled “Molesting minor with immoral intent,” which is a felony. State v. Klink, 362 Mo. 907, 254 S.W.2d 650, 652 [1], In State v. Wilson, Mo., 320 S.W. 2d 525, this court held that one who commits an act of sodomy proscribed by Section 563.230, RSMo 1959, V.A.M.S., upon a minor may be convicted of molesting a minor under Section 563.160. The court said, 1. c. 526: “Although the subj ect matters of the two statutes differ as do the essential elements of the offenses involved, one committing the acts within Section 563.-230 may commit acts at the same time within Section 563.160, supra. State v. Oswald, Mo.Sup., 306 S.W.2d 559.” The same reasoning would apply to the circumstances of this case where allegations constituting a charge of statutory rape also, constitute a violation of Section 563.160, inasmuch as the rape of a child is also a molestation of such child. Appellant argues that the amended information and punishment were improper because the only offenses that could be included within the scope of statutory rape would be the lesser offenses of common assault under Section 559.220, RSMo 1959, V.A.M.S., and contributing to delinquency of a minor under Section 559.-360, RSMo 1959, V.A.M.S. This contention is of no consequence because appellant, by his plea of' guilty, waived all defenses other than failure of the amended information to charge an offense. State v. Conley, Mo., 123 S.W.2d 103, 105 [7], The sufficiency of the amended information already has been demonstrated and the statute, 563.160, supra, by which the amended information is authorized, provides for punishment by imprisonment in the penitentiary for a period not exceeding five years. Assignment (2) is denied.

Appellant charges in assignment (3) that the “suspension” of his sentence was on condition “that he leave the State of Missouri,” which “constituted an unlawful ‘banishment’ * * * in violation of the Fourteenth Amendment” and that the subsequent revocation without presence of counsel was a denial of due process. The charge of “banishment” is not borne out by the record which shows unmistakably that no such condition was imposed. The condition in the order of probation is “that the said defendant conducts himself as a good citizen and leads an honest, upright, temperate, and industrious life, and obeys the laws and ordinances of every State and of the United States and possessions.” The record thus contradicts appellant’s unsupported charge and under Rule 27.26 the trial court properly denied relief. State v. McDonald, Mo., 343 S.W.2d 68, 71, 72 [4],

Appellant also complains that his parole was revoked without a hearing and presence of counsel, but “the court granting probation or parole * * * may in its discretion with or without hearing, order the probation or parole revoked and direct that the sentence theretofore imposed be commenced and order execution thereof. * * Section 549.101; Laws 1963, p. 671, § A (§ 6). See also State v. Collins, 225 Mo. 633, 125 S.W. 465, 466, where defendant’s parole was revoked without a hearing. The court held that the grant of parole was “purely an act of grace on the part of the state through its court,” and that the defendant “accepted his parole subject to its provisions and conditions, among which was that which authorized the court to revoke the parole without further notice to him.” Assignment (3) is denied.

The lower court properly overruled appellant’s motion without a hearing because the motion and the files and record show that the prisoner is entitled to no relief. State v. Johnstone, Mo., 350 S.W.2d 774, 777 [3-6],

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Arbell CAMPBELL, Appellant.
    No. 50864.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Arthur S. Margulis, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Gene P. Graham, Independence, for appellant.
   BARRETT, Commissioner.

The appellant, John Arbell Campbell, has-been found guilty of “stealing from the person.” There was also a charge, proof and finding of a prior grand larceny felony conviction in Kansas and accordingly a sentence by the court of ten years’ imprisonment. As to the principal offense the information charged that on February 16, 1964, John Arbell Campbell “did then and there unlawfully, feloniously and intentionally steal from the person of one Robert J. McCullough certain property, to wit: One Benrus Watch, gold frame with gold expansion band, of the value of $15.00, * * without the consent of the owner thereof * *

The proof was that Campbell, McCullough and several other men occupied separate rooms in the hotel at 1204 Washington Street. On Sunday, February 16, 1964, the six or seven men who occupied the third floor had spent the greater part of the day in their common kitchen on that floor cooking and “drinking a little.” Campbell claimed that he knew where he could buy whiskey on Sunday and about 2 o’clock in the afternoon McCullough gave him $5 “to go get a bottle of whiskey.” Campbell took the money but did not return with the bottle of whiskey and about 5 o’clock McCullough went to his room, bolted the door and went to sleep. About 6:30 he was-awakened when Campbell “busted in my room,” knocking the hasp -from the door, and demanding money immediately grabbed McCullough by the neck as he lay on his back choked him; “backhanded me across the face * * * several times” and when there was no move to produce money “he rifled my pockets” (took about a dollar and fifty cents in change), “tore my wristwatch off my arm” and as he went out the door said that “if I went and told anybody he would kill me.” Either McCullough or the landlady called the police and after searching the third floor a policeman found Campbell sitting on the closed “commode in the men’s room” on the second floor and in a nearby desk drawer in the hall a watch identified by McCullough as the watch Campbell had wrested from his wrist.

Needless to say this testimony and these circumstances constitute “substantial evidence” in support of the charge and finding. State v. Barrett, 262 Mo. 165, 170 S.W. 1105. McCullough testified that he bought the watch two or three weeks before February 16 “off of a man that lived at the hotel” a couple days for $4.00. This testimony and the fact of McCullough’s possession of the watch, contrary to the appellant’s contention, is sufficient evidence “as to the ownership of the watch.” 52 C.J.S. Larceny §§ 81a, p. 886, 134, p. 972; State v. Donovan, 121 Mo. 496, 499, 26 S.W. 340 341.

The other point briefed and argued by appellant’s counsel is that since the money and watch did not exceed $15 in value the court erred in not instructing and submitting to the jury a lesser offense of stealing less than $50. But under the specific terms of the statute “if the property intentionally stolen: (1) Is taken from * * * a person” the offense “is deemed a felony regardless of the value of the property stolen.” RSMo 1959, § 560.161, subd. 2(1), V.A.M.S. The basis or policy of the statute is that “(l)arceny aggravated by a taking from the person” is a more serious offense, warrants a more severe penalty and therefore is placed in the same category as grand larceny regardless of the value of the property stolen. 32 Am.Jur. (Larceny) § 44, p. 941. Larceny from the person need not necessarily be by force and if by force may also constitute another and separate offense but larceny involving force is nevertheless larceny and a felony regardless of the value of the property. 2 Wharton, Criminal Law & Procedure, § 502, p. 176. Since the evidence supports the charged offense and no other the appellant is in no position to contend that he was entitled to an instruction on some lesser offense. State v. Enochs, Mo., 98 S.W.2d 689; State v. Enochs, 339 Mo. 953, 958, 98 S.W.2d 685, 688.

In addition to these two briefed and argued assignments of error there are no errors “as to those matters upon the record” (Sup.Ct. Rule 28.02, V.A.M.R.) before the court and the judgment is therefore affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Robert Maladolado YBARRA, Appellant.
    No. 50391.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Edward A. Glenn, Sp. Asst. Atty. Gen., Louisiana, Mo., for respondent.
    J. K. Owens, Kansas City, for appellant.
   BARRETT, Commissioner.

The appellant, Robert M. Ybarra, age 39, with a prior felony conviction in New Mexico of “indecent exposure” to a minor (N.Mex.R.S.1953, § 40-34-21; RSMo 1959, § 563.160, V.A.M.S.) has now been found guilty of the offense of statutory rape upon Sheila, a child ten years old, and sentenced by the court to 15' years’ imprisonment. RSMo 1959, §§ 559.260, 556.290, V.A.M.S. In appropriate language an amended information charged the prior offense in New Mexico (State v. Brewer, Mo., 338 S.W.2d 863) and substantially in the language of the statute that on January 6, 1963, Robert Ybarra “in and upon one Sheila * * * a female child under the age of sixteen (16) years, to wit: of the age of ten (10) years, did make an assault upon her, the said Sheila * * * then and there did unlawfully and feloniously carnally know and abuse her * * State v. Trumbull, Mo., 182 S.W.2d 524.

These in brief were the facts as the jury could reasonably find them: Sheila’s older sister, Cecilia, age 16, against the express command of her father but disapprovingly known to her mother, was surreptitiously “dating” the appellant Ybarra and had been for almost a year. On Sunday January 6, 1963, about 6 o’clock in the afternoon, after a telephone call, Cecilia asked her mother’s permission to go with' Bob (Ybarra) to Katz Drug Store. At the same time she asked if Sheila “could ride along with them,” promising that they would return before 8 o’clock, Sheila’s bedtime. The mother assented and Ybarra picked the girls up on the corner where Cecilia “usually met him.” They stopped at Katz Drug Store and Ybarra went in alone for a few minutes and then drove on to his apartment at 424 Askew. Cecilia and Bob “went up to” his apartment and in a few minutes he returned to the automobile with a sweater he had promised Sheila, reporting that Cecilia was cleaning his apartment. Ybarra got in the car and drove off with Sheila and, she says, “he drove to Cliff Drive, and he had told me before that I had some kind of disease, and when I grew up it might— I might be blind or I might die, and then he said he had to examine me, and he said that I couldn’t go to a doctor because my mother or father had to be with me, and so then he laid me down in the front seat of the car and took off my pants, and then he took off his.” It is not necessary to further set forth the details, despite Sheila’s screams Ybarra proceeded to rape her. Sheila bleeding profusely “told him I had to go to the bathroom and he wouldn’t take me to a decent place so I could go, he made me go up on a hill, and then I discovered blood all over my dress and I started screaming” and then he drove to a street corner near her home and let her out with a warning that if she said anything “I’d get my big sister in trouble.” It was then about 7 o’clock and Sheila’s mother soon discovered the bloody clothes and called her husband’s attention to her condition and he called the police. The police and her father took Sheila to a hospital and later, under anesthetic, she was examined by a gynecologist who described her considerable injuries.

The facts have been recited in this manner not alone to indicate that the evidence plainly supports the charge and finding (State v. Trumbull, supra) but to refute as a matter of fact the assignments of error briefed and argued by present counsel for the appellant. The court gave an instruction which told the jury that “the intent with which an act is done” may be proved by direct evidence or inferred from all the facts and circumstances. Because the court gave that instruction it is now urged that the court prejudicially erred in not also giving “a circumstantial evidence instruction.”

It may be noted in passing that age is the essential element in statutory rape (State v. Baker, Mo., 276 S.W.2d 131) and intent and motive play but little if any part in the substantive offense. State v. Hersh, Mo., 296 S.W. 433. But it is not necessary to a disposition of this appeal to consider whether the court should have given the initial instruction on intent or to say whether the court was bound as a part of the law of the case (RSMo 1959, § 546.070(4), V.A.M.S.; Sup.Ct. Rule 26.02 (6) to instruct upon the subject of circumstántial evidence. It is certain that the cases cited by appellant’s counsel, State v. St. Clair, Mo., 262 S.W.2d 25 (in which he was of counsel), State v. Kinard, Mo., 245 S.W. 2d 890, and State v. Mitchell, Mo., 276 S.W.2d 163, do not relate to the necessity of instructions on circumstantial evidence. But here, as even a casual recital indicates, “the evidence was not wholly circumstantial” and therefore the court was not obliged as a part of the law of the case to instruct upon the subject. State v. Neal, 350 Mo. 1002, 1003, 169 S.W.2d 686, 694.

The other point, unsupported by specific demonstration upon the record and by lack of citation of authority (24A C.J.S. Criminal Law § 1849, p, 621), other than a passing reference to Sup.Ct. Rule 29.01 relating to a defendant’s right to counsel, is that “although his attorney was of his' own picking” the appellant was not “afforded an attorney as prescribed by law.” In this connection present counsel expresses the opinion that trial counsel did not have “sufficient experience and knowledge in criminal cases to protect this defendant’s interests.”

The short answer to these assertions is that they are unfounded. In the face of the circumstances of this record it is not readily apparent just what even most resourceful and eminent counsel could have done other' than to earnestly present as trial counsel did by the testimony of Sheila’s sister, Cecilia (Ybarra did not testify), the defendant’s claim of not guilty by reason of a lack of opportunity, a plea in the nature of an alibi. In view of the awesome responsibility upon counsel in this particular case, the strategy of defense, what witnesses should be called, what questions asked, what objections should be made, was entirely a matter of intuitive judgment. State v. Turner, Mo., 353 S.W.2d 602, 605; In re Goodwin, Mo., 359 S.W.2d 601.

In addition to qualified trial counsel, a respected and experienced trial judge presided over the appellant’s trial, he was “entitled to a fair trial but not a perfect one.” State v. Turner, 353 S.W.2d 1. c. 602. The assignments of error presented by present counsel are without merit and in addition there are no errors upon the record before the court (Sup.Ct. Rule 28.02) and the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.

      . 1953 Comp.N.M. § 40A-9-8.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert Ronald WILLIS, Appellant.
    No. 50855.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Gary A. Tatlow, Asst. Atty. Gen., Jefferson City, for respondent.
    John D. Chancellor, Public Defender Bureau, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Defendant appeals from an order overruling his motion brought under Supreme Court Rule 27.26, V.A.M.R., in which he sought to correct a sentence of 10 years in the Department of Corrections for the crime of stealing, or to vacate the judgment of conviction thereof. He was originally found by a jury to have been not guilty of the charge of burglary against him and was found guilty of the charge of stealing property over the value of $50. The jury also found that defendant had previously been convicted of a felony under the then applicable Habitual Criminal Act and punishment was imposed by the jury under Section 560.161, subd. 1 (2), RSMo 1959 (Laws 1955, p. 507, as amended Laws 1957, p. 374, § 1, which was in effect at the time of defendant’s offense, June 14 or 15, 1958). For the opinion in the previous appeal see State v. Willis, Mo., 328 S.W.2d 593.

By his first point defendant seeks to have reviewed his allegation in his present motion to correct (reduce) his sentence upon the ground that he should have been sentenced to five years only for stealing under Section 560.110, RSMo 1959, V.A. M.S., instead of § 560.161, supra. There is included in the present transcript on appeal a prior motion based upon identical grounds as here to correct defendant’s sentence which was overruled by the trial court on December 4, 1961, and from which no appeal was taken. That order of the trial court constituted a final judgment and is not now reviewable. See State v. Thompson, Mo., 324 S.W.2d 133, 136 [5], where the court said, “If a prisoner files a motion pursuant to Rule 27.26, which is considered, overruled, and no appeal taken, a subsequent motion or successive motions based on the same grounds, and seeking similar relief, need not be entertained by the court, inasmuch as the order overruling the former motion is ‘deemed a final judgment’ within the purview of Rules 28.03 and 28.04. (Citing cases).” Point I is overruled. As hereinafter appears, defendant has made additional and different allegations in his motion as grounds for relief, and therefore such further allegations should be considered. State v. Moreland, Mo., 351 S.W.2d 33, 37.

Under Point II defendant contends that the trial court erred in failing to sustain his motion to vacate judgment for the failure of the trial court to appoint counsel for him on appeal, or in the alternative, to grant him the use of the transcript on appeal. We advert to our file copy of the transcript in the previous appeal, and we find that defendant was afforded assistance of counsel, Mr. Vincent Moody, at all stages in the trial below, including the preparation and filing of the motion for new trial. At no time does it appear that defendant’s trial counsel was ever relieved by the court as defendant’s representative. For all that appears here it may well have been the strategy of defendant’s counsel to rest upon the assignments of error in the motion for new trial and not to brief and argue the case upon appeal. This may well be true especially in view of the long-established practice of this court to consider all matters properly raised in the motion for new trial and those considered upon the record proper. In this case quite apparently all of defendant’s assignments of error were reviewed, including the submissibility of the state’s case against him. See discussion of the matter of right to counsel upon appeal, State v. Donnell, Mo., 387 S.W.2d 508. Furthermore, there was never any request by defendant to this court or the court below to appoint counsel for him on appeal, or any suggestion (until now) that defendant’s counsel who served him during the entire proceedings below had then abandoned him upon the original appeal.

The record of the trial further reveals that defendant was permitted to appeal as a poor person upon his application. Section 485.100, RSMo 1959, V.A.M.S., provides that a free copy of the transcript on appeal be furnished upon an order that he may appeal as a poor person. That section of the statutes has been held to apply to an order of the trial court and that this court is without authority to order that a transcript be furnished. State v. Charlton, 363 Mo. 370, 251 S.W.2d 82. Supreme Court Rule 82.12, V.A.M.R., and Section 512.110, RSMo 1959, V.A.M.S., provide that copies of the transcript be prepared and filed with the clerk of the proper appellate court and with the clerk of the trial court. Irrefutably against defendant is the fact that nowhere in the record of the original case, or in our files, does he request that the transcript be made available to him. In the ordinary course of events defendant’s trial counsel (who, as noted, was never discharged or relieved of his duties) could have examined the transcript in the office of the clerk of the trial court, or upon, request, defendant could have himself borrowed it. Point II is overruled.

Point III embodies defendant’s complaint that the trial court erred in refusing to grant him a hearing on his allegation that the state willfully suppressed certain evidence favorable to defendant. Under this point defendant says that certain evidence in the form of laboratory analyses of blood specimens was suppressed. In his motion below defendant stated with more particularity that he was continually denied the use of police laboratory analyses and that blood was found at the scene of the burglary and also on defendant’s shirt. Apparently the contention is that the laboratory analyses would prove that the blood found at the scene of the crime or that found upon his shirt was not his blood. We have examined the previous transcript of the record in the previous appeal and we find no request by counsel for defendant to produce the laboratory analyses, no objection to any allusion to the same during the testimony, or even the slightest indication that the state suppressed or unfairly kept out of the case any laboratory reports. Furthermore, defendant’s counsel argued to the jury the permissible inference against the state because of its failure to present as evidence the laboratory analyses of the blood samples in question. The contention is without merit.

Defendant’s further assertion that the state’s witness, Patrolman James Bresnan, gave perjured testimony is insufficient. He says in his motion, “Further that, petitioner brings to this Honorable Court’s attention the fact that, the arresting officer who was also the investigation officer and the police officer who testified before this Honorable Court and a jury at petitioner’s trial, while under oath, either by honest mistake or intentionally committed per-jurory by testifying to untrue events that had supposuably took place, concerning the first ovents leading up to petitioner’s arrest on June 15th, 1958 (advents that had never took place)”; and “That the jury convicted petitioner on false evidence, knownZy presented by the State the same being false testimony given by the arresting-searching-investigating officer, who was the only police officer to testify at petitioner’s trial, and who testified falsely (See: trans.).” (Emphasis ours.) First, defendant does not point out what testimony given by the officer was false; second, he says that the officer, “either by honest mistake or intentionally committed perjurory,” testified to untrue events (without directing attention to what events). If the officer made an “honest mistake” it could not be perjury. The allegations of perjury are mere conclusions. No facts are alleged or shown to indicate that the state knowingly used false testimony, or knowingly failed to correct testimony which it knew to be false. State v. Statler, Mo., 383 S.W.2d 534, 537 [3, 4]; State v. Worley, Mo., 383 S.W.2d 529, 531 [1, 2]; and State v. McMillian, Mo., 383 S.W.2d 721, 722. Point III is overruled.

Other allegations in defendant’s motion seem to be based upon his right to a new trial because of newly discovered evidence relating to an alibi and other matters which might tend to controvert the state’s case. At the trial defendant produced no evidence, and no reason is given as to why any such evidence alleged to be now available could not then have been presented.

The trial court was correct in ruling defendant’s motion without a hearing as to evidentiary matters.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Eddie BROWN, Jr., Appellant.
    No. 50721.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    Michael F. Godfrey, St. Louis, for appellant.
   HYDE, Presiding Judge.

Defendant charged under the habitual criminal statute (Sec. 556.280) was convicted of burglary second degree and sentenced to six years’ imprisonment. Secs. 560.070 and 560.095. Statutory references are to RSMo and V.A.M.S. Defendant was represented by counsel at the trial and on this appeal.

Defendant does not contend that the evidence was insufficient to make a submissi-ble case so a detailed statement of the evidence is not required, it being obviously sufficient. Defendant’s claims of error, briefed by his counsel, are refusal of testimony offered by him and sentencing him under the habitual criminal statute. See Rule 28.02, V.A.M.R. Defendant was charged with burglary in forcibly breaking and entering the store of Mrs. Emma Johnson with intent to steal therein. The evidence showed that Mrs. Johnson locked up the store and left at 7:00 P.M., December 28, 1963. In the early hours of the morning of December 29th, after receiving a call, Mrs. Johnson and her husband went to the store and found the door was off the cigarette machine, which she had closed when she left, with the coin box on the floor empty and some cigarettes missing from the machine. On the west side of the store room, there was a double door to the street which was not used and had been nailed up. In one of these doors there was a window with screen wire nailed over the glass. This was intact when Mrs. Johnson left the store but when she returned the wire was torn off the window and the glass was knocked out. Some of the glass was on the inside and some on the outside of the store.

Police Officer James.Ramsey came to the store about 1:04 A.M. on December 29th after receiving a radio call and observed that the glass pane had been broken out of the door on the west side of the store. He went into the store through the opening where the glass had been broken and saw a man crouching behind a pinball machine in front of the cigarette vending machine. At the man’s feet was a large plastic bag containing cigarettes and on searching him he found a bent table knife which Mrs. Johnson said was one of two she had in the store and a considerable number of coins of the denominations used in-the cigarette machine. Officer Ramsey arrested defendant and took him to a police station. He identified defendant at the trial as the man he arrested in the store.

Defendant filed a pro se brief, before his counsel’s brief was due, in which he claims unlawful search; but, of course, on the officer’s testimony, this was proper as incidental to a lawful arrest. There was no evidence to the contrary as defendant did not testify at the trial but he states in an affidavit (which of course cannot be considered as part of the record) sent with his brief that he was never in the store and that the officer’s testimony was false and untrue. Defendant’s mother testified that defendant came to her house at 1:15 A.M., December 29, 1963, got a cigarette and left at 1:20 A.M., saying he was going to the Iron Wheel, a tavern, to get a sandwich. This testimony was the basis of an alibi instruction given by the court at defendant’s request.

Defendant called a witness, not related to defendant, and questions were asked and rulings made as follows:

“Q Do you also happen to know a Mrs. Emma Johnson?
“A No.
“Q You don’t know her at all? A No.~
“Q Did you ever have occasion to hear Mrs. Emma Johnson make a statement—
“MR. FLAVIN: I object, your Honor, as being hearsay.
“THE COURT: Sustained.
“Thereupon, the following proceedings were had without the hearing of the jury:
“MR. GODFREY: Your Honor, the reason I want to ask that question is for this reason: That this Mrs. Johnson was supposed to have told this woman she knew Eddie was not the man that broke into the confectionery.
“THE COURT: I refuse to change my ruling.”

Defendant’s counsel then made an offer of proof stating “that this witness would testify that Mrs. Johnson told her that she knew that Eddie Brown, Jr., had no connection with the robbery, or burglary, of her premises; and I believe that is relevant and material as to also the issue of credibility of Emma Johnson.”

As to such a statement, we said in State v. Letz, 294 Mo. 333, 242 S.W. 681, 683: “It is the general rule that, in criminal prosecutions, the state sustains no such relation to the party injured as will render his declaration admissible in evidence against the state. Her statement was no part of the res gestae, was hearsay, and was properly rejected.” See also State v. Feltrop, Mo.Sup., 343 S.W.2d 36, 38; State v. Chamineak, Mo.Sup., 343 S.W.2d 153, 158. We further note that the motion for new trial makes no reference to credibility ,or impeachment. See Rule 27.20, V.A. M.R. We find no prejudicial error in this ruling of the court.

Defendant’s claim concerning the habitual criminal statute is that it was inapplicable to him “inasmuch as there was no evidence concerning the termination of the second sentence of defendant as required by law.” The present habitual criminal statute (adopted 1959, see Laws 1959, S.B. 117) makes no such requirement. Instead it requires that a person “shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor.” The records of the Circuit Court, Criminal Division, City of St. Louis, were produced by a deputy clerk and showed two former felony convictions. The first, April 24, 1956, for burglary, second degree, on which defendant was sentenced to two years in the intermediate reformatory of the State of Missouri and paroled. The second, December 21, 1959, for assault with intent to rob with malice, on which defendant was sentenced to two years’ imprisonment in the state penitentiary. Certified transcripts of the Department of Corrections records were also introduced in evidence showing imprisonment on the first conviction from January 29, 1958 to February 27, 1959 (apparently his parole was revoked) and on the second from February 5, 1960 to January 26, 1961. Defendant admitted at the trial that he was the person referred to in these records. Therefore, it is clear that the habitual criminal statute was applicable in this case.

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

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Alphonse Vincent CASTALDI, Appellant
    No. 50767.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
    O’Hanlon & Daly, Robert J. O’Hanlon, Richard L. Daly, St. Louis, for appellant.
   HOUSER, Commissioner.

Alphonse Vincent Castaldi and Clinton Edward Hawkins were jointly charged with, jointly tried, and each was convicted of tampering with a motor vehicle. This is an appeal by defendant Castaldi from the judgment sentencing him to 3 years’ imprisonment in the penitentiary.

The vital question on this appeal is whether the state’s evidence was sufficient to make a case for the jury.

A fire in the woods a quarter or half mile from Camp Sunnen, a Boy Scout camp in Washington County, was called to the attention of the director of the camp, Clayton Breihan. Investigating, Breihan walked along a fire trail in the direction of the smoke. In the woods he came upon a fairly new Ford automobile, sitting or parked on the fire trail, with its front and rear windows out. Proceeding through the woods he observed and recognized Edward Hawkins walking on the trail, in the direction away from and some 50 to 75 feet distant from the fire, which was near Hawkins’ cabin. Looking through the dense underbrush and trees he “could just make out” two other men who were close to and within a few feet of the fire. Suspicious, Breihan returned to the camp and called a deputy sheriff. Fifteen to twenty minutes later, returning to the place in the company of the deputy, they found Hawkins, Castaldi, and one Pinson. They observed the remains of a new 1963 Ford automobile body which had been cut to pieces and from which the parts apparently had been removed. It was smoking. There was no blaze then but the body had been burning. Only the top and a portion of the body remained. Near the smoking body — within 5-7 feet — there was an acetylene torch equipped with a set of hoses and tanks. Hawkins and Castaldi were standing “fairly close by” the smoking body, in “very close proximity” — within 10 feet, perhaps three or four feet from it. Pinson was kneeling down or crouching, cutting the smoking body with the acetylene torch. The deputy asked Hawkins what he was doing. Hawkins answered that he was cutting up, getting rid of the parts of, a junker or wreck. Breihan testified that Hawkins said “something to the effect that they were cutting up a junker or a wreck, * * Castaldi was “just standing there.” The deputy did not speak to Cas-taldi and had no conversation with him. There is no evidence that Castaldi said or did anything except stand there. After 3-5 minutes the deputy and Breihan drove on to the location of the other car Breihan had seen on his first trip into the woods. Several seconds after the deputy disappeared into the woods Pinson said he was leaving. Castaldi asked him where he was going and he said that he was going into Rolla. Cas-taldi rode along with him. Hawkins said he was going to stay and “find out what’s going on.” Castaldi was later arrested on the highway.

Several days before the day in question Hawkins asked one Gibson, an employee of Western Auto Store at Potosí in the same county, for the loan of a cutting torch. Hawkins was accompanied by a man whom Gibson could not identify as Castaldi. Gibson did not lend Hawkins a torch. Shortly before the day in question Bohannon sold a large oxygen tank and a small acetylene tank to a man who gave his name as Edward Hawkins. This man was accompanied by two men whom Bohannon could not identify.

The Ford that was destroyed was identified as the property of a car dealer whose place of business was located in St. Louis. The Ford was supposed to be on his new car lot there. The car dealer had given no one permission to remove it from the lot or to dismantle and cut it up.

Castaldi, previously convicted of receiving stolen property testified that he had known Hawkins three years; that he had not previously known Pinson; that he, Pin-son and Hawkins had driven in Pinson’s automobile from St. Louis on July 3 to Hawkins’ cabin to spend the weekend fishing; that when they approached the cabin site they saw the smoke and thought the cabin was on fire; that they found the automobile burning and made efforts to put out the fire by throwing a barrel of water and some dirt on it; that they had put out the fire when the deputy and another man arrived but that it was still smoking. Castaldi denied that he had dismantled, cut or otherwise tampered with the automobile, and explained that he left in Pinson’s automobile because he “had no way of going anywhere.”

A patrolman who inspected the automobile minutely found no evidence of any quantities of dirt or water around or on the automobile. The deputy sheriff saw no dirt, trash or anything of the kind upon it.

The state urges that, considered in the light most favorable to the state, State v. Townsend, Mo.Sup., 327 S.W.2d 886, the evidence is sufficient to sustain a verdict finding Castaldi guilty of tampering with a motor vehicle. The state points to the direct evidence of tampering and that parts of the automobile were disassembled and removed and that it was cut up by the use of a torch without the owner’s permission; that Pinson was actually using a cutting torch on the car in the presence of Hawkins and Castaldi; that Hawkins said they were cutting up a junker; that Castaldi admitted going on a joint enterprise with Hawkins and Pinson to Hawkins’ cabin; Castaldi’s presence and close proximity to the actual tampering by Pinson; the “obvious lie” that the three had tried to put out the fire with water and dirt, and Castaldi’s “fleeing the scene, without explanation,” with the active participant, Pinson. It is said that these circumstances provide a reasonable basis for a conclusion that Castaldi participated in the tampering and are irreconcilable with Castaldi’s innocence.

We are not so persuaded. Castaldi was not shown to have been implicated in the unauthorized taking of the automobile from the dealer’s lot in St. Louis. His name was not mentioned in connection with the assembling of the oxygen tanks, hoses and acetylene torch. In fact, neither Gibson nor Bohannon, when questioned about it, could identify Castaldi as the man, or as one of the men, who accompanied Hawkins when Hawkins approached them seeking a torch and oxygen tanks. Castaldi was not shown to have been interested in or connected with the property on which Hawkins’ cabin was located, or to have had knowledge of or to have participated in the operation of disassembling and cutting up stolen automobiles. Although he was in the company of those who were so implicated and was physically present and in close proximity while Pinson was using the torch, and notwithstanding he left with Pinson when the officer of the law extended his search beyond the immediate scene of the fire, the most that can be said is that the state proved Castaldi’s presence at the scene of the crime, an opportunity to commit the crime, suspicious circumstances, and perhaps flight.

Evidence that an accused had an opportunity to commit a crime, or which merely raises a suspicion and gives rise to conjecture, is insufficient as the basis for a judgment of conviction. Presence of the accused at the commission of a felony is evidence to be considered in determining whether he was guilty of aiding and abetting, but in order to aid and abet another in the commission of a crime something more than mere presence must be shown. The mere presence of Castaldi at the scene of the tampering by Pinson, or by Pinson and Hawkins, is insufficient to render Castaldi a participant. It is necessary that the accused “associate himself with the venture” in some fashion, Mays v. United States, 8 Cir., 261 F.2d 662; that some form of affirmative participation be shown, State v. Butler, Mo.Sup., 310 S.W.2d 952, 957,— participation in the crime as something that he wished to bring about; that he sought by his action to make it succeed, United States v. Peoni, 2 Cir., 100 F.2d 401, 402; that he “consciously shared” in the criminal act. Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919. In every case we have examined holding one guilty as an aider and abettor there has been some evidence of an act or deed or circumstance other than mere presence at the scene. There is nothing here from which it can be inferred that Castaldi encouraged or excited the commission of the offense, or participated therein, before or during the occasion when the deputy arrived, by words, gestures, looks, signs, or that he otherwise countenanced, approved or associated himself with this criminal activity, or even that he knew that a crime was being or had been committed. He was “just standing there,” not as a participant, not as a lookout, but merely as a bystander.

Flight is a circumstance to be considered against an accused in connection with other evidence of the commission of a crime. State v. Thompson, Mo.Sup., 363 S.W.2d 711, 715. Castaldi’s “flight,” however, if indeed his leaving under the circumstances may be considered a flight, is of itself insufficient to support a conviction, especially in view of the fact that he had a reasonable explanation consistent with a hypothesis other than that of consciousness of guilt. 23 C.J.S. Criminal Law § 907, p. 558. Pinson’s automobile was Castaldi’s only readily available means of getting out of the woods and back to St. Louis, and when Pinson indicated his intention to leave in his car it would be reasonable for Castaldi to accompany him.

It was the burden of the state to prove Castaldi guilty beyond a reasonable doubt. The evidence offered to sustain this burden was sufficient to show that a crime was committed and sufficient to raise suspicions as to Castaldi’s complicity, but insufficient to show that Castaldi tampered tvith this automobile or affirmatively participated in the crime. It did not show a set 'of circumstances inconsistent with his innocence nor did it exclude every reasonable, hypothesis of his innocence. No fact issue was made. The judgment should be reversed and the defendant discharged.

It is so ordered.

WELBORN and HiGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . These rules were reannouneed lately in State v. Ramsey, Mo.Sup., 368 S.W.2d 413, 416, 417.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Teddy Ray SIMS, Appellant.
    No. 50961.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.
    Taken as submitted by appellant.
   HOLMAN, Judge.

Defendant, a prisoner in the Missouri State Penitentiary, instituted this proceeding under the provisions of Supreme Court Rule 27.26, V.A.M.R., by the filing of a pro se motion “to vacate and/or correct” a judgment and sentence wherein he had been adjudged guilty of the crimes of burglary and stealing. The trial court considered the motion and denied the relief sought for the reason that the “files, records and verdict establish that the defendant is entitled to no relief.” Defendant has duly appealed from that order and judgment.

The original trial occurred on May 17, 1962. At the conclusion thereof the jury returned the following verdict:

“We, the jury, find the defendant, Teddy Sims, guilty of burglary, second degree, and assess his punishment at 2 years in the state penitentiary, and we further find the defendant guilty of stealing and assess his punishment at 2 years in the state penitentiary. Signed, H. N. Harrison, Foreman.”

Thereafter, the court sentenced defendant to the custody of the Department of Corrections for a term of two years for the burglary offense and two years for the ■crime of stealing’, and specifically provided in the judgment that said terms “run consecutively.” The sole contention in defendant’s motion relates to the verdict and judgment, it being said that the punishment provided in the verdict “is but a total term of two years’ imprisonment and, therefore, the within Honorable Court’s imposition of ‘two years on' burglary and two years on stealing, said terms to run consecutively’ was neither responsive to the said verdict nor in conformity with the provisions of Missouri Supreme Court Rule 27.02.”

There is no merit in defendant’s contention. The answer thereto is plainly provided in § 560.110 (all statutory references are to RSMo 1959, V.A.M.S.) which reads as follows:

“1. If any person in committing burglary ■shall also commit a crime of stealing, he may be prosecuted for both offenses in-the same ■count, or in separate counts of the same indictment, and, on conviction of such burglary and stealing, shall be punished by imprisonment in the penitentiary, in addition to the punishment herein prescribed for burglary, not less than two nor exceeding five years.
“2. Notwithstanding the provisions of •section'546.480, RSMo, the court shall state in pronouncing sentence whether the additional term of imprisonment provided herein is to run consecutively or concurrently. In the event that the court fails to determine at the time of pronouncing sentence how the.terms of imprisonment shall run in relation to each other, the terms of imprisonment shall run concurrently.”

In our consideration of that section we also note that the punishment for burglary is specified in § 560.095(2) as imprisonment for “not less than two nor more than ten years.” Upon finding defendant guilty of burglary the jury was required to fix a punishment of at least two years’ imprisonment. Under the provisions of § 560.110(1), supra, upon finding defendant guilty of stealing (in connection with said burglary), it was mandatory that the jury provide an additional punishment of at least two years for said offense. No doubt the court instructed the jury accordingly and the verdict demonstrates that the jury followed the instructions in that respect. However, § 560.110(2), supra; makes it mandatory that the court “shall state in pronouncing sentence whether the additional term of imprisonment provided herein [for stealing] is to run consecutively or concurrently.” The court performed its duty as so provided and stated that said terms should “run consecutively.” The effect of that judgment is that defendant shall be imprisoned for a total period of four years. Had the judgment been silent on the question as to how the terms should be served, then, under the provisions of § 560.110(2), the terms would have run concurrently, but that is not the situation here. As heretofore stated, there is no basis for defendant’s contention that the verdict provided only “a total term of two years.”

Supreme Court Rule 27.02, cited by defendant, provides that “[i]n all cases of a verdict of conviction for any offense where by law there is any alternative or discretion as to the kind or extent of punishment to be inflicted, the jury may assess and declare the punishment in their verdict, and the court shall render a judgment according to such verdict, except as is otherwise provided in these Rules. * * * ” That rule was not violated in this instance. The jury exercised its discretion and assessed the minimum punishment for each offense. The court rendered judgment according to such verdict, performing, however, the additional duty imposed by § 560.110(2) of specifying whether the two terms be served consecutively or concurrently.

The judgment is affirmed.

All concur.


text:
    Harvey F. EUGE, Appellant, v. LEMAY BANK & TRUST COMPANY, a Corporation, Respondent.
    No. 51058.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.
    Harvey F. Euge, St. Louis, pro se.
    Tralles, Hoffmeister & Gilpin and Fred J. Hoffmeister, St. Louis, for respondent.
   HIGGINS, Commissioner.

Action for $160,000 actual and punitive damages for alleged malicious prosecution. The court dismissed without prejudice for failure to prosecute. The amount in dispute being in excess of $15,000, this court has jurisdiction. Article V, Section 3, Missouri Constitution, V.A.M.S.; Section 477.040, RSMo 1959, V.A.M.S.

The transcript shows that appellant’s petition was filed January 23, 1959; that the cause was on the dismissal docket of June 20, 1960, and removed therefrom upon security for costs being furnished by appellant ; that it was on the dismissal docket of May 28, 1962, and removed therefrom on May 29, 1962, at the request of appellant; that it was on the dismissal docket of November 22, 1963, at which time the dismissal was ordered; that on December 2, 1963, appellant filed motion to set aside the order of dismissal, which motion was overruled by expiration of 90-days’ time.

The sole issue is whether the trial court abused its discretion.

The general rule is that courts have inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and that the action thereon will not be disturbed on appeal unless such discretion was abused. City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65, 68[2]; Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo., 337 S.W.2d 87, 90[5], The record here shows the case to have been pending for just two months short of five years which the trial court could properly conclude to be an unreasonable delay absent a valid excuse.

Appellant argues that a valid excuse for his delay is that he had to file the suit when he did in order to toll the statute of limitations, and that dismissal would cause the statute of limitations to become a bar to another action. Appellant stated in his motion to set aside the dismissal that “there is now pending * * * State of Missouri v. Harvey F. Euge, * * * a criminal case * * * the transaction upon which plaintiff’s cause of action is predicated; * * * which has not as yet been tried, determined, or finally disposed of and that the final outcome of said criminal cause is the basis upon which plaintiff’s cause of action is predicated.” Appellant’s petition states that the alleged malicious prosecution is “a misdemeanor pending in the Magistrate Court.”

Rather than provide a valid excuse for delay in prosecuting his action, appellant’s argument demonstrates the propriety of the trial court’s action in dismissing this suit without prejudice. Instead of alleging termination of the alleged malicious action, appellant has done the opposite and stated that such action is still pending, in which case he states no cause of action. Niedringhaus v. Zucker, Mo., 208 S.W.2d 211 [1]; Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861, 866[22]. The petition thus shows that it was prematurely filed because no cause of action could accrue until the alleged malicious prosecution terminated in appellant’s favor. Zickel v. Knell, 357 Mo. 678, 210 S.W.2d 59, 60[1], 3 A.L.R.2d 1304. The statute of limitations would commence to run against appellant only upon such termination of the alleged malicious action.

Under these circumstances there was no abuse of discretion, and the judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


text:
    INDEPENDENCE FLYING SERVICE, INC., Appellant, v. John W. ABITZ and Vesta Ailshire, Respondents.
    No. 50465.
    Supreme Court of Missouri, Division No. 1.
    Jan. 11, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 8, 1965.

      Donald E. Raymond, Thomas M. Howell, Kansas City, Terrence C. Riley, Platte City, for appellant.
    Walter A. Raymond and Raymond, West & Cochrane, Kansas City, S. Ralph Stone, Independence, for respondents.
   HOUSER, Commissioner.

In this court-tried case Independence Flying Service, Inc., has appealed from a judgment rendered against it on Count III of its petition against Vesta Ailshire, lessor, and one John W. Abitz, in which plaintiff, lessee, sought $31,000 damages for conversion of personal property allegedly owned by lessee, consisting of certain hangars, buildings and other immovable structures and improvements located on the demised airport premises, and from a judgment rendered against it for $2,700 on lessor’s counterclaim against lessee for unpaid rentals.

Lessee’s petition charged that under the terms of the written lease the improvements could be removed by lessee but that defendants ousted lessee from possession under the lease and with threat of force refused to permit lessee to remove the improvements and refused to pay lessee therefor. Lessor answered, denying lessee’s rights to any improvements on the leased premises, claiming that under the lease lessee’s right of removal was made conditional upon full payment of the rent before the expiration of the lease and that lessee breached the condition by failing to pay the rentals reserved, and further violated the lease by subleasing the premises to defendant Abitz without lessor’s knowledge or consent, in violation of a provision prohibiting subleasing, as a result of which lessee lost any rights of removal and lost any interest it had in the improvements, her theory being that lessor had a right to declare a forfeiture of the lease on the two grounds indicated and that she did so properly, as a consequence of which the lease was terminated and that the right of removal of the improvements expired with the termination of the lease.

We find the facts to be as follows: By a written instrument dated April 10, 1958-lessor demised to lessee a 60-acre tract of land for a term of 7 years beginning January 1, 1958, at a rental of $300 per month payable quarterly in advance, that is, $900 on January 1, 1958 and $900 on the first, days of April, July, October and January of each year during the term of the lease. There was a provision that at the termination of the lease lessee may “remove all improvements belonging to it provided 'its rental is fully paid and removal is made before the expiration of this lease * * In addition to other provisions there were four “covenants,” the first and third of which related to the care of the premises and the regulation of signs, billboards and advertisements thereon.

Covenant 2 follows:

“2. To not sublet or allow any other tenant to come in with or under it or assign this lease or any part thereof by its act, process or operation of law, or in any other manner whatsoever without the written consent of the Lessor endorsed on this lease.”

Covenant 4 follows:

“4. At the expiration of the term hereby created, or if default be made in the payment of rent after the same is due or upon the breach of any of the covenants and agreements herein contained, the Lessor or her agent shall have the right to enter and take possession of the leased premises, and the Lessee agrees to deliver same without process of law, and this lease, at the option of the Lessor, shall terminate, but for this cause the obligation of the Lessee to pay shall not cease and the Lessee shall be liable for any loss or damage to the Lessor for its failure to comply with the terms hereof.”

Lessee entered possession under the lease, paid the first installment of rent, but at no later payment date did lessee pay in full the amount due. Payments for lesser sums than $900 were made, sporadically, but through thirteen months of occupancy after April 1, 1958 the rent was continuously delinquent to the extent of several hundred and finally several thousand dollars. In June, 1959 the arrearage amounted to $2,-700. Lessor repeatedly and frequently asked Mr. Morris, president of lessee corporation, to pay the rent. When the April 1, 1959 installment was not paid lessor called Mr. Morris, who told her that he could not pay the rent and told her to call Rolla Pen-nell, a member of the board of directors, and talk to him about it. She called Mr. Pennell, who came to her home to discuss the matter, bringing his father, who was also on the board. This discussion occurred around April 1, 1959. The Pennells informed lessor that the corporation could not pay the rent because “John Abitz hadn’t paid them.” Lessee corporation had subleased the operational rights in the airport to Mr. Abitz January 1, 1959 without consulting with or obtaining the written consent of lessor. The Pennells refused to pay the rent and stated that they had put all the money into the corporation that they were going to put in. They did offer to buy lessor’s “lease rights” in order to be in a position to gain control of the corporation and oust Mr. Morris, in which event they said they would pay the rent according to the lease. They informed lessor that all of lessee’s equipment had been moved away from the leased premises and that Mr. Morris had moved to Excelsior Springs and was operating an airport there. Mr. Morris had obtained a lease on an airport in Excelsior Springs in March, 1959 and had taken over its management when the manager he employed proved unsatisfactory. Lessor investigated and confirmed the fact that Mr. Abitz had a sublease; that the lessee’s airplanes had been removed, and that Mr. Morris was at Excelsior Springs. Lessee had taken everything it had on the premises for the operation of an airport, including the airplanes, except the hangars, buildings and permanent improvements which are the subject of this lawsuit, and a tractor. Lessor rejected the offer of the Pennells and pressed Mr. Morris for payment. When Mr. Morris came to lessor’s home to discuss the situation he told her he could not pay the rent because John Abitz had not paid his rent and that she could not be paid unless the Pennells “came up with the money,” but he promised to “see if he could get some money” to pay her. On May 25, 1959 Mr. Morris brought lessor a check for $400. In accepting the $400 check lessor told Mr. Morris that it would be credited upon rentals past due since the fall of 1958. Messrs. Morris and Pennell testified that lessor told them that, based upon that payment, she was “willing to go along” with them; that she told them that if they can “continue to do this, you will be all right down there.” This was not denied by lessor and we find as a fact that as of May 25, 1959 lessor indicated her willingness to accept the situation and continue under the then-existing arrangement, including the sublease of which she had knowledge since around April 1, 1959. Mr. Abitz’ operation of the airport was not successful. He was several thousand dollars delinquent in the payment of rentals reserved under his sublease. On June 12, 1959 lessee caused a letter to be written to Mr. Abitz, declaring the sublease void and the term under it ended “under paragraph 12” for default in the payment of rent, and asking Mr. Abitz to surrender and not remove his equipment, fixtures, etc. from the premises until his account was finally settled. Mr. Abitz informed lessor of the receipt of this notice. Lessor suggested that she and Abitz “take everything up to the attorney” and “get this thing straightened out.” The two consulted her attorneys, after which one of her attorneys wrote lessee’s attorney a letter on June 17, 1959 notifying him as representative of Independence Flying Service that lessor thereby declared the lease between Independence Flying Service and Vesta Ailshire terminated “because of non-payment of rent and for other violations by the lessee of the lease agreement.” The “other violations” were not specified, and there was no demand for the rent then due, although there was a recital in the letter that the attorney writing it “understood” that “there is a deficiency as of this date of $2,600.00 plus a $100.00 deficiency for hangar rent to July 1, 1959.” Lessee was requested to immediately “surrender the premises to the lessor” and not to remove from the premises any of its fixtures, equipment, books of account or other items of personal property until a complete settlement of all unpaid rentals then due and yet due and payable under the lease was made. Lessor’s reasons for terminating the lease were that lessee was behind with the rent; that the directors of lessee corporation were fighting among themselves; that neither the Pennells nor Mr. Morris would pay the rent; that lessee was “not there” operating the airport, and that, following the action of lessee in attempting to cancel the sublease, there was no reasonable prospect of getting rent through payments made by Mr. Abitz thereunder. Lessor took over possession and operation of the airport, and left instructions with Mr. Abitz (who was permitted to stay on for a while) that Mr. Morris was not to be permitted on the premises and that nothing was to be removed. Shortly after June 17, 1959 Mr. Morris appeared at the airport He was told by Mr. Abitz that he no longer had a right to come on the premises. Mr. Abitz demanded that he leave. Lessor was informed by telephone that Mr. Morris was at the airport, “throwing things out of the office.” Lessor called the sheriff, who later reported that he went to the airport but that Mr. Morris was gone when the sheriff arrived.

Appellant has abandoned its contention that the court erred in entering judgment for lessor on her counterclaim for rent.

Addressing ourselves to the propriety of the judgment entered on Count III of lessee’s petition for damages for conversion, and having reviewed the case upon both the law and the evidence, we are of the opinion that the judgment must be set aside.

There is no question that lessor appropriated lessee’s property, assumed control over it, and denied lessee’s rights therein, under circumstances which would constitute a conversion, absent a right in lessor to declare a forfeiture. Neiswanger v. Squier, 73 Mo. 192; 32 Am.Jur. Landlord and Tenant § 241, p. 226; 51 C.J.S. Landlord and Tenant § 319, p. 994.

Nor is there any question that lessor had a right to declare a forfeiture for nonpayment of rent and for breach of the covenant not to sublet the premises.

Forfeiture of a lease for breach •of a covenant or wrongful act of a tenant, however, is a harsh remedy, “liable to produce great hardship, if not oppression,” Carbonetti v. Elms, Mo.App., 261 S.W. 748, 751 [5], and is not favored by the courts. Haeffner v. A. P. Green Fire Brick Co., Mo.Sup., 76 S.W.2d 122. A covenant permitting a forfeiture will be strictly con.strued against the party invoking the forfeiture, Frank v. Dodd, Mo.App., 130 S.W.2d 210, and in favor of the lessee. 51 C.J.S. Landlord and Tenant § 102, pp. 677, 678 ; 32 Am.Jur. Landlord and Tenant § 848, p. 721. “[T]o effectuate such a forfeiture every requirement of the common law must be scrupulously observed, unless waived by agreement.” Carbonetti v. Elms, :supra, 261 S.W., l. c. 751 [5].

We are of the opinion that lessor ■did not observe the requirements of the ■common law in the enforcement of her right to declare a forfeiture for nonpayment of rent. It is the well-established rule of the common law that “[t]o work a forfeiture of a leasehold estate at common law for non-payment of rent there must be a notice of forfeiture and a demand for the payment of the rent. Carbonetti v. Elms, Mo.App., 261 S.W. 748 and cases cited; 51 C.J.S., Landlord and Tenant, § 114 b, p. 694; Taylor’s Landlord and Tenant, Ninth Ed., Vol. 1, § 297, p. 362; Thompson on Real Property, cit. supra, [Perm. Ed., Vol. 3, § 1459], and § 1471.” Waring v. Rogers, Mo.App., 286 S.W.2d 374, 379 [20]. Under the strict requirements of the common law “the demand for rent must be made precisely on the very day when the rent becomes due, and for the precise amount due. Carbonetti v. Elms, supra, and numerous cases cited; Jones, Landlord and Tenant, § 503; Tiffany on Landlord and Tenant, Vol. 2, § 194; Thompson on Real Property, Perm. Ed., Vol. 3, § 1483 ; 51 C.J.S., Landlord and Tenant, § 114(2), p. 696.” Waring v. Rogers, supra, 286 S.W.2d, 1. c. 379 [20]; 32 Am.Jur. Landlord and Tenant §§ 857, 858. Lessor’s letter of June 17, 1959 did not contain a demand for the payment of rent, and the demand therein contained (a demand for the surrender of the premises) was not made on any day when the rent became due. The only days of the year when the rent became due under the lease were the first days of April, July, October and January. The lease made no provision for the making of any other or different demand or notice of forfeiture than that required by the common law, and there was no provision in the lease for the waiver of these requirements. (The lessee’s agreement in Covenant 4 to deliver the' possession of the premises “without process of law” is no waiver of the formality of notice, as contended by lessor. “Process of law” as there employed refers to legal process issued by a court, executed by an officer of the law, for the enforcement of the right to possession, following the entry of a court judgment.) Lessor has not shown herself entitled to forfeiture of the lease on the ground of nonpayment of rent, and the attempted forfeiture on this ground will not be enforced.

Nor is lessor entitled to the enforcement of a forfeiture for breach of the provision of the lease prohibiting the subletting of the premises without her written consent. Lessor asserted only one ground of forfeiture, namely, nonpayment of rent. Her letter declared the lease terminated “for non-payment of rent and for other violations by the lessee of the lease agreement,” but the generality “other grounds” is insufficient notice of forfeiture on the ground of violation of a covenant against subletting. Lessee is entitled to know specifically upon what grounds lessor asserts the right to declare a forfeiture. “The assertion of one ground of forfeiture, so as to terminate the tenáncy, precludes the right to rely on another ground which existed at the same time, in an action involving a question of forfeiture.” 51 C.J.S. Landlord and Tenant § 117, p. 701. Having first asserted this ground of forfeiture in her answer to the suit for conversion she is estopped to claim a forfeiture on this ground. Panas v. Bopp, Mo.App., 16 S.W. 2d 654 [2]. Furthermore, lessor waived a forfeiture on this ground. “Generally •speaking, any recognition by a lessor of a tenancy as subsisting after a right of entry lias accrued, where the lessor has notice of the forfeiture, will have the effect of a waiver of the landlord’s right to a forfeiture of the leasehold. Slight acts on the part of a lessor may be sufficient. Indeed, it has been ruled that any act on the part of the lessor, by word or deed, with 'knowledge of what has been done, which -signifies his intention to affirm the lease, is conclusive evidence of a waiver of the forfeiture.” 32 Am.Jur. Landlord and Tenant § 882 ; 51 C.J.S. Landlord and ’Tenant § 117 c (1). From about April 1, 1959 lessor had knowledge that lessee had -subleased the premises to Mr. Abitz. With •this knowledge lessor, in accepting the ’back payment of rent on May 25, in effect ••assured the president and a board member •of lessee corporation that as long as rent -payments were kept up lessee would not be -disturbed in its possession, thereby affirming the existence of the lease and recog-mizing lessee as her tenant. Furthermore, -the right to forfeit for an unauthorized ■subletting may be waived where the lessor 'takes no steps to enforce the right of re-entry on that ground for several months after the subletting. 51 C.J.S. Landlord ■and Tenant § 117 c (1), p. 704. Here 'lessor waited to first claim a forfeiture •on this ground from April 1 until the date ■of the filing of her answer in the suit 'filed months later. She did not act promptly to make known her intention to forfeit for breach of the covenant against un-authorized subletting.

Instead of dispossessing lessee :and recovering the rent due by the simple method of statutory forfeiture provided by Chapter 535, R.S.Mo.1959, V.A.M.S., lessor invoked the harsh remedy of common law forfeiture, seeking not only to terminate the lease, re-enter the premises and recover the rent, but also by excluding lessee to take over and convert to her own use the valuable improvements thereon belonging to lessee. This she had a legal right to do but in pursuing that course she is held to the scrupulous observance of every requirement of the common law. Waring v. Rogers, supra; Carbonetti v. Elms, supra; Knight v. Orchard, 92 Mo.App. 466; Thompson on Real Property, Perm. Ed., Vol. 3, § 1462, p. 703. For the reasons given lessor, having failed to meet these requirements, may not have the fruits of her abortive attempt to enforce a forfeiture. Her re-entry under the circumstances was wrongful and in forcibly excluding lessee from the premises and denying its rights in the improvements defendants were guilty of conversion.

The judgment on the counterclaim is affirmed. The judgment on Count III of the petition is reversed and the cause remanded for proceedings to assess lessee’s . damages.

WELBORN and HIGGINS, CC, concur.

PER CURIAM:

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DALTON, J., absent.