author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Henry Edward BURSBY, and Harvey Bursby, Appellants.
    No. 51372.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

This is an appeal from an order of the Circuit Court of Dade County overruling, without a hearing, defendants’ joint motion to vacate judgments and sentences imposed on them on September 16, 1963. Rules 27.26 and 28.03 (references to rules are to Supreme Court Rules and V.A.M.R.).

The transcript on appeal approved by the trial judge discloses that the defendants were charged jointly in one information in three counts as follows: Count 1, with burglary on August 21, 1963, of the Terry Town Store building owned by Lonus Speight and stealing therefrom certain goods, wares and merchandise owned by Speight; Count 2, with burglary on the same date of a tin grainery owned by Speight, located near the above-described store building, and stealing therefrom certain goods, wares and merchandise owned by Speight; Count 3, with stealing on the same date Speight’s cement mixer valued at more than $50 and parked near the store building. On September 12, 1963, the date the information was filed, the defendants appeared in court without counsel and, on being informed by the court that they were charged with “a felony”, that they were entitled to a trial by jury and the appointment of counsel to represent them at the trial, Henry Bursby, speaking for himself and Harvey Bursby, indicated that ■ they were guilty and would prefer to have sentence imposed as soon as possible so they could “get to doing it.” With this, Harvey Burs-by agreed. They unequivocally declined the appointment of counsel. After these admissions and waiver of right to counsel, the court read the information to defendants and, accepting their pleas of guilty, deferred sentencing until September 16. On the latter date defendants again appeared without counsel and, on recommendation of counsel for the state, the court sentenced each to imprisonment in the penitentiary for a term of four years on each of the three counts of the information, the sentences to run consecutively.

On the surface it would appear from defendants’ rambling disordered six-page motion that their ground for vacating their sentences is that they were denied the benefit of counsel when they entered pleas of guilty. But that is not their complaint. The fruit of sense lying beneath this over-abundance of misleading words, reached almost intuitively by defendants, is that the court and counsel for the state knowingly and intentionally failed to protect their rights. Specifically: that the court countenanced and improperly accepted their plea of guilty to the charges of one information containing three counts, each count charging separate and distinct offenses for only one of which they legally could have been convicted and sentenced had they been tried under the information; that they, being illiterate, and uninformed except as to their right to counsel, waived the benefit of counsel and entered a plea of guilty to what they thought was one offense, not understanding that the consequences of their plea could or would be its acceptance as a plea of guilty to each of three separate cases for which the court could or would impose three sentences of four years each to run consecutively.

The offense of burglary charged in Count 1 and the separate offense of stealing in connection with such burglary properly may be joined in the same information in one count, or in separate counts, Rule 24.04, and on conviction of such burglary and stealing defendants “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.” Section 560.110, paragraph 1. (References to statutes are to RSMo 1959 and V.A.M.S.) The same is true as to the offenses charged in Count 2. But that is not to say that the offenses charged in Count 1 and those in Count 2 and the offense of stealing charged in Count 3 properly may be joined in one information, and defendants tried and convicted on more than one of the three counts.

The offenses of burglary, and stealing in connection with such burglary, although separate and distinct crimes, may be joined in one information, and an accused may be tried and convicted of both offenses in one trial only because the rule and statute authorize and permit such as an exception to the general rule; the general rule being that an accused may not be charged, tried and convicted at the same time of two separate and distinct offenses. State v. Preslar, 316 Mo. 144, 290 S.W. 142 and cases there cited; State v. Terry, Mo., 325 S.W.2d 1, 4 [3], and cases there cited.

The offenses charged in the three counts of this information, based on which judgments were entered sentencing defendants to the penitentiary, are separate, different and distinct felonies, although the occurrences were on the same date, in the same general area, and one may have followed immediately after the other. State v. Preslar, supra; State v. Thomas, supra.

In State v. Preslar, supra, the defendant was charged in one information in four counts with four sales of “moonshine” whiskey and was convicted and sentenced on each. Before the opening statement was made by counsel for the state, counsel for defendant moved that the state be required to elect on which count the state would proceed to trial. The motion was overruled. On appeal to this court, the state contended that the point was not preserved for review because defendants’ counsel not only failed to save an exception to the court’s ruling, but thereafter agreed to the action of the court and thereby waived any right to require the state to elect. In reversing and remanding, this court said, at 290 S.W. l. c. 143-144: “ * * * In justice to all parties concerned, we think the matter should be disposed of as though counsel for appellant made no request of the court to require the prosecuting attorney to elect upon which of the four counts he would proceed, until the filing of the motion for a new trial, as aforesaid. On the other hand, the [trial] court ruled it was not required to order an election under the laws of this state. We hold that, under the rulings of this court, the question of election is not a mere matter of form, which may be waived, as claimed by the state, supra, but it involves a question of jurisdiction and power. This principle of law was announced with great clearness and force by Judge Gantt in the leading case of State v. Carragin, 210 Mo. [351] loc. cit. 371, 109 S.W. [553] 558, (16 L.R.A. [N.S.] 561) where he said: ‘In instructing the jury that they might find the defendant guilty under both counts, and in refusing to require the prosecuting attorney to elect after all the evidence was in, the court committed reversible error. We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.’

“The law, as above written, is fully sustained by other decisions of this court, as follows: State v. Guye, 299 Mo. [348] loc. cit. 366, 252 S.W. 955; State v. Link [315 Mo. 192], 286 S.W. 12 et seq.

“We have no hesitation in holding that, on the record before us, the judgment of conviction in which defendant has been sentenced to the penitentiary for 8 years on four separate and distinct felonies, set out in four separate counts of the information, cannot stand the test of judicial criticism, under the laws of this state. We are of the opinion that it was the absolute duty of the trial court in this case, whether requested or not, to have directed the prosecuting attorney, before submitting the case to the jury, to elect on which of the four counts in the information he would proceed to trial and to strike out the remainder. In addition to foregoing, as a part of the state’s case, whether requested or not, it was the imperative duty of the court to instruct the jury that they could not find the defendant guilty except on the single count submitted for their consideration. State v. Burrell, 298 Mo. [672] loc. cit. 678, 679, 252 S.W. 709, and cases cited.”

In State v. Terry, Mo., 325 S.W.2d 1, 4 [3], a more recent case, the defendant was charged in two counts of one information with (1) breaking and entering a dwelling with intent to commit the felony of rape and (2) forcible rape, two separate and distinct offenses. He was tried and convicted of both felonies at the same time, and sentenced to imprisonment for five years on each. The information was not attacked either prior to, during, or after trial, nor was there a motion to require the state to elect prior to submission. The court held that the joinder of these distinct felonies did not render the information bad as a matter of law and that any question as to the validity of the information because of the misjoinder was waived by failure to raise that question. The court was more particularly concerned with the conviction of two distinct felonies in the same trial. The conviction was affirmed, the rationale of the opinion being: “* * * inasmuch as there is no express prohibition against the conviction of a defendant of two distinct felonies at the same trial, and inasmuch as there appears to be no reason for the established rule in Missouri which should prevent a waiver of that rule, and inasmuch, as heretofore noted, an information or indictment in which are joined two distinct felonies is not bad as a matter of law, we are of the view that a defendant’s failure to assign as error in his motion for new trial the action or inaction of the trial court which resulted in his conviction of two distinct felonies at the same trial, effects a waiver of his right to rely on the rule in question. In other words, if a defendant prefers that two distinct felonies with which he is to be charged be joined in one information, and if he prefers that he be tried on both those charges at one and the same trial, we perceive no reason why he may not so elect. We hold, therefore, that a defendant’s failure to raise any question in his motion for new trial about the fact that or the procedure whereby he was convicted of two distinct felonies at the same trial and separately sentenced for each, should have the same effect as though defendant had specifically elected to be tried on both felonies at the same time.” It will be noted that the opinion is based on an assumed preference and election by the defendant.

The question here is whether the defendants had that knowledge and understanding of the consequences of their plea essential to a valid plea of guilty. Our Rule 25.04 provides: “ * * * The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * * ” In State v. Williams, Mo., 361 S.W.2d 772, 775 [3], quoting with approval from an earlier case, the court said: “ ‘The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. * * * ’ ” See also: State v. Blaylock, Mo., 394 S.W.2d 364, (opinion filed October 11, 1965). And where, as here, an accused, without counsel, is charged in three counts of an information with separate, distinct felonies, for those charges in only one count of which he may be convicted and sentenced in the same trial, the court need be particularly cautious.

Under these circumstances, the court should question carefully the accused to determine that he is fully informed and correctly understands (1) that he is not charged with only one offense, but that he is charged with more than one, and, (2) that he may and will be sentenced on each and all and the minimum and maximum punishment for each, and that the sentences may run concurrently or consecutively. A perfunctory examination will not suffice. We da not mean to say that the court, in this examination need inform the accused the term of each sentence that will be imposed, State v. Williams, supra, nor whether the terms will run concurrently or consecutively. Under these circumstances, it should appear affirmatively from the record that the accused preferred and specifically elected to be so charged and sentenced. Otherwise, the court should not accept accused’s plea of guilty, except to that for which he properly might be convicted in one trial.

This record discloses that the court informed defendants that they “are charged here with a felony”, that they had “a right to have a lawyer” and “a right to have a trial by jury” ; that the court offered to' appoint an attorney to represent them; that the defendants indicated that they were guilty of “the charge” and did not want the court to appoint counsel to represent them. Up to this point there had been no mention of what the charge or charges were, except that the court had said that it was a felony. However, it certainly may be assumed defendants knew of what acts they were guilty, but not necessarily that they knew that this constituted more than one felony or that there was more than one charge of felony against them. After the court read the information to defendants, this colloquy occurred between the court, counsel for the state, and defendants:

“MR. HENRY BURSBY: Hey, could I ask a question ?
THE COURT: Yes, sir.
MR. HENRY BURSBY: How many cases or what have they got me filed on?
THE COURT: You are charged in one charge, one information, with three counts. In other words, it is three crimes in three different counts.
MR. HENRY BURSBY: I’ve got one charge on me, is that right?
THE COURT: There is one Information in three counts.
MR. HARVEY BURSBY: They run together don’t they, Judge?
THE COURT: Of course you could be found guilty on any one of the counts and, of course, a sentence assessed on each one of the counts which might or might not run consecutively or concurrently depending upon what the Court wants to do and what the Prosecuting Attorney recommends and the Court follows:
MR. HENRY BURSBY: What do you recommend?
MR. COLLEY: We haven’t reached that stage yet
THE COURT: I want to ask you again now — you know what you are charged with?
MR. PIENRY BURSBY: That’s second degree burglary ?
THE COURT: The first two are burglary—
MR. COLLEY: It is second degree.
THE COURT: And stealing.
MR. COLLEY: The first two are burglary in the second degree and it don’t make any difference what you steal but if you go in by burglary, why, it is a felony. So then the third count down there is stealing something over $50.00 which is actually grand stealing now.
THE COURT: Now do you fellows know what you are charged with?
MR. HENRY BURSBY: Yes.
MR. HARVEY BURSBY: Yes.
THE COURT: What is your plea to that charge?
MR. HARVEY BURSBY: I’m guilty.
MR. HENRY BURSBY: I’m guilty.”

The record next discloses that the court accepted their respective pleas and deferred sentencing until the following Monday. On the latter date this, among other things, occurred:

“THE COURT: Harvey, upon examination of your criminal record here and on the recommendation of the prosecuting attorney I am going to assess your punishment on Count 1 of the information to four years in the penitentiary. On Count 2 of the Information, four years in the penitentiary, and, on Count 3 of the Information, four years in the penitentiary, such sentences to run consecutively.
MR. HENRY BURSBY: Your Honor, what do you mean by that ?
THE COURT: I mean that these sentences are hooped onto one another so that the net effect is that you will be receiving twelve years in the penitentiary. Henry Bursby, I will assess your punishment at four years on Count 1 of the Information; four years on Count 2 and four years on Count 3 of the Information, to run consecutively.”

Immediately after this, Henry Bursby made an impassioned but unavailing plea to the court for mercy and reconsideration of the sentence.

Nowhere in this record does it appear clearly that defendants actually entered a plea of guilty to each of the three counts. To consider that they had so pleaded, the court had to assume that defendants understood the limited and partly technical information given them by the court and counsel. Nowhere in this record does it appear clearly that defendants understood that they were charged with more than one crime. The record indicates that they did not so understand. While we do not believe that the court or counsel intentionally misled defendants, we do conclude that the record is not sufficient to show that defendants had such knowledge and understanding of the consequences of their plea as is essential to valid pleas of guilty. Certainly we cannot say that defendants had that knowledge and understanding that would permit them intelligently to prefer and elect to be sentenced on all three counts.

There is another reason why the order denying the motion to vacate should not be permitted to stand, although the point is not raised directly in defendants’ motion. Regardless of whether the point is made, the judgments herein referred to are a part of the record and we may, on a motion to vacate, examine them for any fatal defects. State v. Campbell, Mo., 307 S.W.2d 486, 489-490 [1, 2]. The sentence on Count 1 (burglary and stealing) does not fix a separate term of imprisonment for each of those offenses as is required by § 560.110. The sentence on Count 2 is the same. We cannot determine from the sentence whether the term of imprisonment is four years on burglary and none on stealing or four years on stealing and none on-burglary, or whether the court intended from these words of its judgment, “ * * * Bursby upon his plea of guilty to Count 1 of Information sentenced to the State Department of Corrections, Jefferson City, Me., for a term of (4) four years”, to impose a term of two years for each offense for an aggregate term of four. If the court intended the latter, the two terms would run concurrently unless the court stated of record at the time of sentencing that they run consecutively.

The judgments entered on Counts 1 and 2 are fatally defective because they fail to assess separate punishments for each offense in each count. If this case were in this court for review on appeal, it would have been imperative that we reverse and remand it for a new trial for the reason indicated. State v. Meadows, 331 Mo. 533, 55 S.W.2d 959 [2, 3]; State ex rel. Dalton v. Blair, 365 Mo. 1167, 294 S.W.2d 1, 3 [1].

For the reasons hereinabove discussed, the order overruling the motion to vacate is reversed and the cause remanded.

All concur.

      . State v. Barbour, 347 Mo. 1033, 161 S.W.2d 1105, 1107 [4]; State v. Qualls, Mo., 383 S.W.2d 547, 549 [2]; State v. Meadows, 331 Mo. 533, 55 S.W.2d 959.

      . State v. McHenry, Mo., 207 S.W. 808, 809 [2]; State v. Thomas, Mo., 860 S.W.2d 694, 698 [2]; State v. Meadows, supra.

      . For other instances where an accused may be charged in more than one count in the same information and tried on all, see: State v. Brown, 317 Mo. 361, 296 S.W. 125, 127 [4] and cases therein cited; State v. Thomas, Mo., 360 S.W.2d 694, 698 [3].


source: Caselaw Access Project

license: Public Domain

text:
    EMPLOYEES CONSUMER ORGANIZATION, INC., a Corporation, Appellant, v. GORMAN’S INC., a Kansas Corporation, Commerce Trust Co., a Missouri Banking Corporation, George P. Krieder, Mary H. Krieder, Salome K. Thomas, Charlotte P. Vroom, Susan B. Bartholf and Elizabeth P. Garvey, All of Sangamon County, III., and Springfield Marine Bank, an Illinois Corporation, Robert J. Saner, Trustee, of Sangamon County, Pennsylvania, Respondents.
    No. 51111.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Keith Wilson, Jr., Independence, for appellant.
    Sheffrey, Ryder & Skeer, David Skeer, Judith Whittaker, Kansas City, for respondents, Commerce Trust Co., George P. Krieder, Mary H. Krieder, Salome K. Thomas, Charlotte P. Vroom, Susan B. Bartholf, Elizabeth P. Garvey, Springfield Marine Bank and Robert J. Saner.
   HENLEY, Judge.

This is a suit for specific performance of the provisions of a lease contract to rebuild or, in the alternative, for damages of $1,545,165.74, for failure of defendants to rebuild after its destruction by fire a building occupied by plaintiffs. Judgment was for defendants and plaintiff appeals. This court has jurisdiction, the amount in dispute exceeding $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; Section 477.040, RSMo 1959, V.A.M.S.

For convenience and clarity the parties will be referred to hereinafter as follows: plaintiff-appellant, Employees Consumer Organization, Inc., a corporation, as ECO; defendant-respondent, Gorman’s, Inc., a corporation, as Gorman’s; the remaining defendants-respondents as Trustees.

By an instrument executed July 21, 1958, Gorman’s, as the lease-tenant of Trustees, sublet to ECO the building or premises owned by Trustees known as 1214-16-18 Grand Avenue in Kansas City, Missouri. On July 4, 1960, an explosion and fire destroyed the building. It was not rebuilt, a parking lot having been constructed thereon. This suit was filed August 13, 1962.

ECO contends that the relationship created between the parties by the above-mentioned and other instruments is not the usual, ordinary landlord-tenant-subtenant relationship ; that this is not a suit by a subtenant “to enforce the landlord’s covenants contained in the basic lease, where there are no rights accruing to the subtenant and there is neither privity of contract nor estate between the parties” ; that by the instruments described below there was established between Trustees and ECO the direct relationship of landlord and tenant; and, that by reason thereof ECO is entitled to enforce a covenant to rebuild contained in the basic lease from Trustees to Gor-man’s.

The Trustees, by an instrument in writing dated February 5,1954, leased the premises to Gorman’s for a term of 15 years expiring August 31, 1969, for a rental of $30,-000 per year (payable $2,500 per month in advance on the first day of each month) plus a percentage of the annual sales in excess of a certain amount. Article VI of the lease permitted the lessee to assign the lease or sublet the premises, but upon such assignment or subletting lessee was not relieved of liability for rent or other provisions of the lease. Article X provided that in the event that the premises were damaged or destroyed by fire, it would have certain effects upon the lease. By Article XI the lessor covenanted to keep the buildings insured against loss for not less than the replacement cost. For the purposes of this opinion we assume, without deciding, that Articles X and XI required the lessor to rebuild the building forthwith, so we will not set out verbatim the provisions of these articles.

Three days later, on February 8, Trustees and Gorman’s executed an addendum to the above lease changing Article VI to provide that lessee could assign the lease or sublet the premises to certain types of businesses and companies or corporations (of which ECO was not one, so far as this record shows), but could not otherwise assign or sublet without the written permission of lessor although it might license others to operate departments of the business and sell merchandise as such on the premises. The lease and addendum will be referred to hereinafter as the basic lease.

Gorman’s vacated the premises in October, 1957, and the vacancy continued until the premises were occupied by ECO in May or June, 1958.

On or about July 21, 1958, Trustees, Gor-man’s and ECO entered into an agreement effective May 1, 1958, entitled “Consent to Sublease and Modification of Lease”, wherein Trustees consented to a subletting of the premises by Gorman’s to ECO. This agreement further provided: (1) that Gor-man’s would remain liable for payment of the rent and for the performance of other covenants for which it was obligated in the basic lease; (2) that so long as ECO occupied the premises and operated in the manner provided in the sublease, the Trustees would waive the provisions of the basic lease providing for a percentage rental to be paid hy Gorman’s, and agreed that the total annual rental would be $30,000 while Gorman’s waived its right to reimbursement from Trustees for certain money advanced by Gorman’s for prior alterations and improvements to the premises; (3) that for any default for which Trustees might terminate the basic lease according to its terms, Trustees would give ECO 30 days’ written notice thereof and would not terminate the basic lease if ECO within such 30 days remedied such default, or caused it to be remedied; (4) that ECO would furnish a non-cancellable surety bond naming Trustees and Gorman’s as obligees guaranteeing the payment of the maximum sum of $30,000 in the event ECO defaulted in payment of the rent provided for in the sublease; and, (5) that the terms and provisions of the basic lease remained in full force and effect, except such of those that might conflict with the consent to sublet or the sublease, in which event the latter instruments should prevail.

On the same day, July 21, Gorman’s, warranting that the basic lease was in full force and effect and that it had the right to sublet subject to the written consent of Trustees, sublet the premises to ECO for a term of 10 years ending April 30, 1968, for a rental of $300,000, payable $2,500 per month on the first day of each month. This sublease further provided: (1) that ECO had paid $5,000 to Gorman’s as rent for May and June, 1958; (2) that subsequent rent be paid by check payable to Springfield Marine Bank of Springfield, Illinois, one of the Trustees; (3) that ECO would furnish a non-cancellable surety bond naming Gorman’s and Trustees as obligees guaranteeing the payment of the maximum sum of $30,000 in the event ECO defaulted in the payment of the rent provided for therein; that $30,000 was the maximum amount of ECO’s liability for failure to pay rent or for its breach of any other covenant of the sublease or basic lease; (4) that ECO might, at its option, cancel the sublease at the end of its fifth year, upon six months’ written notice thereof to Gorman’s; (5) that ECO would not assign the demised term or sublet the premises (except in certain instances not pertinent here) without the written permission of Gorman’s and Trustees; (6) that Gorman’s would not be liable for any default of Trustees under the basic lease; and, (7) that the sublease would terminate upon written notice by Gorman’s if any violation of its terms by ECO continued for 30 days.

It might be noted at this point that the sublease term would expire April 30, 1968, sixteen months before expiration of the term of the basic lease on August 31, 1969, and that ECO had the option to terminate the sublease at the end of the fifth year of its term.

On the same day, July 21, the Trustees and Gorman’s executed a second addendum to the basic lease wherein they reaffirmed the basic lease, and Trustees agreed to the subletting by Gorman’s to ECO subject to essentially the same conditions as those in the consent to lease. The only substantial difference between the terms and provisions of the consent to lease and this addendum is that in the latter, Trustees and Gorman’s consented to the alteration of the building front by ECO according to plans attached thereto, and Gorman’s and ECO agreed to restore the front to its original condition at the termination of the basic lease and not make further alterations without permission of Trustees. Appended to this addendum, below the signatures of Trustees and Gorman’s, was the following executed by ECO: “In consideration of the consent of the Trustees to this sub-leasing, and the sub-leasing by Gorman’s, ECO agrees to be subject to and bound by the provisions of the Basic Lease and this Second Addendum.”

The surety bond executed by ECO and certain individuals as principals, and The Summit Fidelity and Surety Company as surety, as obligors, was delivered to Trustees and Gorman’s, as obligees. It is not necessary to set out the provisions of the bond, its obligation being essentially that described above.

Edward Jaben, president of ECO, testified that he and others of ECO began negotiations with Gorman’s for the occupancy of these premises in January or February, 1958; that the negotiations were with Sam Gorman and the latter’s attorney, a Mr. Jules Kahn, and that at one or two of these meetings he saw a Mr. Harvey Schmelzer, an agent of the Trustees; that all rent due under the sublease has been paid; that on August 2, 1960, he visited Harvey Schmel-zer, agent for the Trustees, to inquire what plans the Trustees had for rebuilding the building, and was told that the Trustees “hadn’t considered it yet”, that he would hear from them “or that I should contact Mr. Tucker [attorney for Gorman’s] in the future * * * ”; that he heard no more from Schmelzer or anyone else representing the Trustees regarding rebuilding; that after the fire ECO secured a public liability policy on that portion of the building remaining covering ECO, Gorman’s and Trustees; that he first became aware that the building would not be rebuilt when he saw a parking lot being built at this location; that he met with Sam Gorman after the fire and told Gorman that ECO wanted the building rebuilt; that Gorman said this was not his problem but was that of the owners; that on August 31, 1960, ECO’s attorney wrote to Mr. Tucker, attorney for Gorman’s, insisting that the building be rebuilt in accordance with the terms of the lease or that ECO be compensated for damages incurred by reason of failure to rebuild ; that neither he nor his attorney had ever written the Trustees or their agent requesting that the building be rebuilt.

Sam Gorman, president of Gorman’s, testified that the premises were vacated by Gorman’s in October, 1957, and continued vacant until Gorman’s sublet to ECO, who took possession in May or June, 1958; that it was after the negotiations between Gor-man’s and ECO had culminated in a meeting of minds on the sublease that he first contacted the Trustees to get their approval ; that after the fire he had a meeting with Mr. Schmelzer, agent for the Trustees, and some of the Trustees, and told them that so far as Gorman’s was concerned it did not care to have the building rebuilt; that Gorman’s did not, to his knowledge, receive a letter from ECO requesting that the building be rebuilt unless it be the letter from ECO’s attorney, dated August 31, 1960, addressed to Gorman’s attorney; that he and Jaben discussed rebuilding, but that he (Gorman) did not think it practical.

There was evidence also as to the amount of damage suffered by ECO as a result of the failure to rebuild, and there is a contention that ECO defaulted in the payment of certain rent claimed to be due. However, considering the view we take of the issues, it is not necessary to recite the evidence on these matters or discuss the contention.

Whether the instrument of transfer from Gorman’s to ECO is a sublease or an assignment of the basic lease is the pivotal issue in this case. It is one or the other, and one creates relationships between the parties different from the other. “ * * * Primarily, the test is whether, by the transaction, the lessee conveys his entire term or retains a reversionary interest, however small. As a general proposition, if by the transaction the lessee conveys the entire term and thereby parts with all reversionary interest in the property, the transaction is construed to be an assignment; but if there remains a reversionary interest in the estate conveyed, it is a sublease. * * * Clearly as regards the original lessor, the criterion for determining whether a transaction in the form of a lease constitutes an assignment or a sublease is whether the entire interest in the term is transferred, without a reversion being retained by the original lessee. * * *” 32 Am.Jur., Landlord and Tenant, page 290, § 314, St. Joseph & St. L. R. Co. v. St. Louis, I. M. & S. Ry. Co., 135 Mo. 173, 36 S.W. 602, 605 [2], 33 L.R.A. 607; 51 C.J.S. Landlord and Tenant § 37, page 553, et seq. As to the rights of an assignee or sublessee against the original lessor, the assignee of a lease succeeds to all the interest of the lessee and to the benefit of all the covenants and agreements of the lessor which are annexed to and run with the leasehold estate, whereas the sub-lessee does not acquire any right to enforce the covenants or agreements of the lessor contained in the original lease. The sublessee’s rights depend on the covenants or agreements in his sublease. First Trust Co. v. Downs, Mo.App., 230 S.W.2d 770, 774 [1-4]; Weigle v. Rogers, 202 Mo.App. 520, 213 S.W. 501.

The negotiations between Gorman’s and ECO were for a sublease, not an assignment of the basic lease; they recognized in their negotiations the necessity of consent by Trustees to a sublease; the Trustee’s consent was to a sublease, not to an assignment; the instrument of conveyance from Gorman’s to ECO was described as a sublease, and the consent to lease and second addendum referred to and were predicated upon a sublease; plaintiff’s petition and the evidence referred to the instrument as a sublease. The instrument is in form a sublease, but no matter the form, its term was limited in point of time to less than that of the lease from Trustees to Gorman’s; Gorman’s remained liable to Trustees for payment of rent and the performance of other covenants of the original lease, and reserved the right to reenter for breach of any of the covenants of the sublease.

We find, and hold, that the instrument of conveyance from Gorman’s to ECO is unquestionably a sublease, and that its effect as such is not changed or affected by the other instruments contemporaneously executed by the parties; that ECO is not entitled to the benefit of the provisions or covenants of Articles X and XI of the original lease, the same not having been assigned to it; that ECO’s rights claimed in this suit are governed solely by the sublease, and it contains no covenant to rebuild. The payment of rent by ECO direct to Trustees did not constitute an attornment to the latter and did not change the relationship between these two to that of tenant and landlord. First Trust Co. v. Downs, supra, 230 S.W.2d l. c. 776 [12]; Leibowitz v. Bickford’s Lunch System, 241 N.Y. 489, 150 N.E. 525.

This disposes of the basic issue in the case and makes it unnecessary to discuss or consider other points briefed by appellant and respondents.

The judgment is affirmed.

All concur.

      . The general rule, quoted in ECO’s brief, being: “There is privity neither of contract nor of estate between the lessor and a sublessee unless the sublessee at-torns to the original lessor, since a lease from the lessor to the lessee does not pass to a subtenant, as it does between the landlord and an assignee of the lease. * * * » o. J.S. Landlord and Tenant § 48, p. 580.


author: HOLMAN, Judge.

text:
    H. P. SCHEID, (Plaintiff) Respondent, v. V. E. PINKHAM, V. V. Pinkham, and Ladco Wood Brick Mills, Limited, a Missouri Corporation, (Defendants) Appellants.
    No. 51499.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Fain & Rea, Branson, for plaintiff-respondent.
    James H. Keet, Jr., Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for defendants-appellants.
   HOLMAN, Judge.

Plaintiff filed this suit as a minority stockholder of the defendant, Ladeo Wood Brick Mills, Ltd., in an effort to recover in behalf of said corporation the sum of $10,000 from V. E. Pinkham and V. V. Pinkham, president and vice-president, respectively, of said corporation. In October 1961 plaintiff had written a letter to other minority stockholders in which he stated that the Pinkhams had misappropriated the sum of $10,000 belonging to the corporation. In this case each of the Pinkhams filed a counterclaim seeking actual damages in the sum of $10,000 and punitive damages in the sum of $50,000 for libel as the result of the aforementioned letter.

The corporation filed a counterclaim in four counts in which it sought judgments as follows: Count I was for the cancellation of 10,000 shares of stock held by plaintiff in the corporation, which was alleged to have been issued without any consideration therefor; Count II sought recovery of the sum of $2,929.15 which had been paid to plaintiff by the corporation (allegedly for services) which it alleged plaintiff was not entitled to retain because he had in fact been working against the interest of the corporation; Count III sought the sum of $25,000 for damages sustained by the corporation by reason of the conduct of plaintiff; and Count IV sought punitive damages in the sum of $25,000 for the same reasons alleged in Count III.

A jury was waived and the cause was tried before the court. The finding and judgment of the court were in favor of the corporation on plaintiff’s petition and against defendant V. E. Pinkham in the sum of $10,000. The court found all of the issues for plaintiff on all of the counterclaims except that there was no specific finding or judgment on Count IV of the counterclaim of the corporation. Since the court denied actual damages on Count III, that necessarily disposed of Count IV as there could be no recovery of punitive damages in the absence of a recovery for actual damages. Scheid v. Pinkham, Mo.App., 394 S.W.2d 570. All of the defendants appealed from the judgment. The appeal was taken to the Springfield Court of Appeals but that court was of the opinion that jurisdiction of the appeal was in this court and properly transferred the case here.

For the reasons hereinafter stated we have concluded that the appeal herein is not from a final judgment and hence is premature and should therefore be dismissed.

The right of appeal is purely statutory. A judgment is defined in § 511.020 (statutory references are to RSMo 1959, V.A.M.S.) as “the final determination of the right of the parties in the action.” Section 512.020 provides, in part, that “[a]ny party * * * may take his appeal * * * from any final judgment in the case * * * It has often been said that a final appealable judgment is ordinarily one which disposes of all parties and all issues in the case. Bennett v. Wood, Mo.Sup., 239 S.W.2d 325.

As we have stated, plaintiff in his petition sought a judgment (in favor of Ladeo) in the sum of $10,000 against V. E. Pinkham and V. V. Pinkham. He alleged that “they, in conspiracy each with the other, did make and utter a check in the name of the defendant corporation and against the account of said defendant corporation in the sum of Ten Thousand and No/100 Dollars made payable to Pinkham Construction Company. * * * That the actions of defendants V. E. Pinkham and V. V. Pinkham were fraudulent, were a misappropriation of funds belonging to defendant corporation for the use and benefit of said defendants Pinkham; were a violation of their office as president and vice-president respectively and that the action taken was without sanction or knowledge of the board of directors; and were done to cheat and defraud the corporation of its funds in the sum of $10,000.00.” However, the judgment of the court on plaintiff’s petition was “that the Ladeo Wood Brick Mills, Limited, a Missouri Corporation, have a judgment against defendant V. E. Pinkham in the amount of $10,000.00 as prayed.” There was no judgment against defendant V. V. Pinkham on plaintiff’s claim, nor was there any judgment in his favor. As concerns plaintiff’s petition, the cause remains pending and undisposed of as to defendant V. V. Pinkham. It is well settled that where a judgment does not dispose of the case as to all of the parties, there is no final judgment from which an appeal may be taken. Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566 [7]; Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., Mo.Sup., 215 S.W.2d 444 [1]; State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487 [1] ; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614; Sutton v. City of St. Joseph, Mo.App., 265 S.W.2d 760 [9]; Lieffring v. Birt, Mo.App., 211 S.W.2d 100; W. T. Rawleigh Co. v. Rouse, Mo.App., 204 S.W.2d 438; Mansfield v. Meade, Mo.App., 194 S.W.2d 544; Poston Springfield Brick Co. v. Brockett, Mo.App., 183 S.W.2d 404 [6]; Cox v. Frank L. Schaab Stove & Furniture Co., Mo.App., 67 S.W.2d 790.

The appeal, being premature, is accordingly dismissed.

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    Annette M. WILKIE, Respondent, v. Robert I. ELMORE, Appellant.
    No. 50914.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      F. William Joyner, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for respondent.
    Fain & Rea, Branson, for appellant.
   HIGGINS, Commissioner.

Plaintiff, Annette M. Wilkie, sued defendant, Robert I. Elmore, for cancellation of a warranty deed and to have title to the real estate involved quieted in her. Plaintiff’s petition was on the theory of nondelivery in Count I and on undue influence in Count II. The court found for plaintiff on Count I and defendant has appealed from the ensuing judgment.

Plaintiff and defendant became acquainted in 1958 when defendant, a real estate agent, handled a sale of real estate near Verona, Missouri, belonging to plaintiff and her husband and the purchase by them of an acreage near Marionville, Missouri. The Wilkies lived on the Marion-ville acreage until the death of Mr. Wilkie July 6, 1962. During that time there were numerous social and business contacts between the Wilkies and the Elmores. Defendant sold Mr. Wilkie an insurance policy; he rented part of the Wilkie farm one year and solicited men to work it in two other years; he advised with the Wilkies on business matters, and had an exclusive listing of the farm in the event they wished to dispose of it. Defendant also counseled plaintiff on family matters, including sale of a car and arrangements for her husband’s funeral. On the way home from making the funeral arrangements, defendant told plaintiff that she should make a list of the things that she would want him to do for her after her own death because she would not be alive “six or eight months from now.”

The Elmores continued to make social calls on Mrs. Wilkie for some three months until she moved to Billings, Missouri, to the real estate in question here. Mrs. Wilkie moved to Billings because her Marionville farm had been sold, which sale was accomplished by a realtor other than defendant. About four months after her move, Mrs. Wilkie wrote to defendant at Marionville and requested him to come to her house to discuss some papers she had received concerning a relative. The parties resumed social visits and on such occasions plaintiff’s death was discussed, as were things she wanted done after her death, including disposition of her property which she intended to leave to defendant.

In April, 1963, plaintiff went with defendant to a lawyer in Monett, Missouri, where a will was drafted for her. Mrs. Wilkie wanted to and did make defendant the beneficiary of her will. She executed the will on a second trip to Monett. On the trip home, defendant suggested that Mrs. Wilkie could deed the property to him and save probate expenses and inheritance taxes, and that it would not make any difference. Defendant also suggested that Mrs. Wilkie could put her money in bonds and that, by putting his name on her lock-box, he could get her money upon her death. The deed was discussed on other occasions. Upon one such occasion, defendant told her that he had talked to a banker from whom he learned that the way for plaintiff to favor defendant in a disposition of her property would be by a deed to him which reserved a life estate to plaintiff. Such a deed was discussed on other occasions in terms of saving money and that “it didn’t make a bit of difference * * * wouldn’t change my part at all.”

On July 8, 1963, defendant drove plaintiff to Springfield, Missouri, where she got her deed from her safety deposit box. They then drove to the courthouse in Ozark, Missouri, and we obtain the subsequent events from plaintiff’s testimony:

“Q. Now, what did you do when you got to the court house? A. I told Bob I didn’t know anything about that, about changing that deed, putting his name on it, and we come in the court house and went in to the Recorder’s Office, she said to go to an attorney upstairs, Mr. Davenport, and we come upstairs and Bob took over from there, that is, he talked with Mr. Davenport, and I did not hear their conversation because I was quite a ways from them, across the room, and his back was to me. He was not facing me, and they fixed— he made the deed and he handed it to me, but I have very bad eyes, I could only read a line or two of anything; and I could read a line of this and I thought well — they had one word in there — Christian County— Lawrence County where it should have been Christian County, and that was right up at the first part of the deed there, and I read those two lines, and glanced over the rest of it, the best I could, but I could not see enough to make it out. I have bad eyes. Q. Was Mr. Davenport your attorney? A. Well, what do you mean by that ? Q. Did he usually transact your legal affairs for you? A. Why no. Q. Had you ever gone to him yourself prior to this time? A. No. When my husband was alive he made a deed or something for us when we sold the property, but that’s been many years ago.
“THE COURT: You are talking about Mr. Davenport? A. Yes, sir. THE COURT: He made a deed for you and your husband several years ago ? A. Several years — quite a few years ago. That’s all I know of him. THE COURT: Who paid him on this date? A. This one? I did. THE COURT: All right, go ahead.
“MR. JOYNER: Go ahead. A. Then when we come downstairs to start home, I thought, well I’ll take this deed on home with me and read it, I didn’t say anything, but I just—
“MR. FAIN: We want to object to this answer as to what she thought about the matter, Your Honor. THE COURT: Well, I am going to overrule it.
“MR. JOYNER: Q. You may proceed. A. And I walked on out without recording it because I wanted to take it home and read it.
“THE COURT: Did you have it in your possession, in your hands, up to that time? A. Yes, sir. THE COURT: All right, go ahead. A. And he called my attention to the fact, he said, ‘You’d better have that recorded,’ so I went back and had it recorded.
“MR. JOYNER: Q. Now when you went in the Recorder’s Office, what did you do with this deed? A. I handed it to the lady that was there. Q. What did she do with that deed? A. Well, she — I don’t know what she did, she read it over, she asked if there was any money exchanged, and as far as I know that was about all. Q. Now when was the next time you saw that deed? A. The following week when it was mailed to me. She asked if it was to be mailed to me. Q. What did you tell her? A. I told her yes.”

When the deed was mailed to Mrs. Wilkie she kept it and sent for defendant to explain it to her because she thought it was different from her understanding. According to her, defendant became angry while telling her that “it was all right, it didn’t make any difference, it did not change anything * * * And I said, ‘Well, if nothing is changed then, why can’t we go back to Ozark and have this put back like it was?’, and that made him angry, so he sorta laughed and said, ‘Well, that’s a slick trick,’ he said, ‘I’m smarter than-other people.’”

There were other visits between the parties during which they discussed what defendant should do with Mrs. Wilkie’s body in the event of her death. Defendant was given a key to her house so he could get in at any time.

Plaintiff testified that she never intended to give defendant an interest in her property except for his suggestion. She thought he would receive nothing until she died. She said she had an impression that defendant intended for her only to put his name on her old deed, and that he did not explain the consequences of the deed to her. Consideration was expressed in the deed as one dollar and other consideration. Defendant stated that the only consideration was love and affection. The deed was in evidence and it contained the language: “Grantor reserves unto herself her life estate in the above described real estate.”

This action in equity is to be reviewed de novo on the record and we are required to make our own findings of fact, draw our own conclusions of law, and enter or direct the entry of the judgment thus indicated, giving due deference to the trial judge on matters of conflicting evidence. Cleary v. Cleary, Mo., 273 S.W.2d 340, 346 [10-12], The court below found that “Plaintiff did not intend to convey to defendant any greater interest in her real estate than she had intended or did convey by her previous will in which defendant was the beneficiary and that the deed introduced in evidence * * * was never delivered by plaintiff to defendant with any intent to convey a present interest in the real estate described therein,” and we have used plaintiff’s version of the facts as being the evidence most strongly in support of the findings and judgment canceling the deed.

Cancellation of a deed is the exercise of the most extraordinary power of a court of equity; such power should not be exercised except in clear cases upon proof which is clear, cogent and convincing, and the burden of such proof is on the party who seeks the cancellation. Cruwell v. Vaughn, Mo., 353 S.W.2d 616, 624[1-4], On the issue of whether there was a delivery of the deed, the burden of showing nondelivery rests upon plaintiff because she is the one who seeks to invalidate the deed upon that ground. Cleary v. Cleary, supra, 273 S.W.2d l.c. 346 [9]; O’Mohundro v. Mattingly, Mo., 353 S.W.2d 786, 792[1],

It is not necessary that there be an actual manual delivery of a deed in order to accomplish an effective delivery, Marshall v. Hartzfelt, 98 Mo.App. 178, 71 S.W. 1061, 1062; Hafford v. Smith, Mo.App., 369 S.W.2d 290, 294[3] ; and it would be proper for the life tenant to retain the deed which showed her present entitlement and such would not disprove a grant in praesenti of a future interest in the remainder to defendant. Although recording of a deed, even by the grantor, does not in itself operate as a delivery of the deed, such recording as here creates a presumption or a prima facie case of delivery in view of our recording statute, Section 442.390, RS Mo 1959, V.A.M.S., and absent effective rebuttal by plaintiff, her recorded deed transferred title to the remainder interest to defendant upon cessation of plaintiff’s retained life estate. Rebmann v. Rebmann, Mo., 384 S.W.2d 663, 665 [2]; Weigel v. Wood, 355 Mo. 11, 194 S.W.2d 40, 41[1], The acceptance necessary to delivery and validation of the deed can be presumed where the transfer of an interest is beneficial to the defendant grantee as in this case. Clark v. Skinner, 334 Mo. 1190, 70 S.W.2d 1094, 1099 [12]. The circumstances of this case give rise to an application of the foregoing statements of law relating to delivery. There are also facts such as the plaintiff-grantor giving defendant-grantee a key to the property, improvements made on the property by defendant, the consistency of the deed with the will by which defendant would have inherited the property upon plaintiff’s death, the desire to avoid probate and inheritance expenses, the friendly relation and affection existing between the parties for which plaintiff wished to reward defendant, and the execution and recording of the deed by plaintiff, all of which imply delivery; and plaintiff’s statements after the execution and recording of the deed of her impression that she was misinformed or was only intending to put defendant’s name on her old deed, and to the effect that she did not intend to deliver a present interest in her land are not sufficient to rebut the evidence of delivery. Carr v. Lincoln, Mo., 293 S.W.2d 396, 401 [5-7].

Respondent relies on Dallas v. McNutt, 297 Mo. 535, 249 S.W. 35, which is of no assistance because, in that case, only one of two grantors delivered the deed and there was consequently no effective conveyance. Wheeler v. Rines, Mo., 375 S.W.2d 48, is not in point because the deed there was clearly testamentary as opposed to the deed of a present interest in real estate. The deed contained a clause: “THIS DEED IS Not To Take Effect till after The Death Of the Said E. W. Harper (grantor).” And in Ridenour v. Duncan, Mo., 291 S.W.2d 900, the gift was properly held incomplete because the deed from a straw man of plaintiff’s testatrix was not delivered until after testatrix’s death and the purported grantees’ names had not been inserted prior to her death.

Accordingly, we find that plaintiff has failed to meet her burden of proving nondelivery of the deed.

The trial court found for the defendant on the issue of undue influence and on our review of the record we reach the same result. We may assume that a confidential relation, as defined in Wilhoit v. Fite, Mo., 341 S.W.2d 806, 813[5-6], and Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, 846 [1, 2], cited by defendant, existed between plaintiff and defendant, but proof of a confidential relation without more does not raise an inference of undue influence or fraud or authorize cancellation of a deed. The influence to be undue must be that overpersuasion, coercion, force, or deception which breaks the will of a grantor and puts that person under the will of another, and it must be present and operative at the time of execution of the deed sought to be set aside, Sebree v. Rosen, Mo., 349 S.W.2d 865, 873 [9-12], Phelan v. Gockel, Mo., 278 S.W.2d 758, 763[2] ; and, notwithstanding a confidential relation between plaintiff and defendant, the defendant had the right to exercise influence so long as it was not so coercive or importunate as to deprive plaintiff of her free agency, Horn v. Owens, Mo., 171 S.W.2d 585, 593[18]. As found by the court below, the evidence previously set out does not rise to the standard necessary to prove undue influence. Even though plaintiff may have made the deed in question at the request of defendant, there is no evidence to show that in so doing she was not exercising her own will as opposed to being under the will of defendant. To the contrary, the evidence shows that despite her age (74 years at the time of execution of the deed), plaintiff was in good health and able to plan in respect to disposition of her property and her own funeral. She showed an alert mind while in the lawyer’s office for preparation and execution of the deed by calling attention to the need for changing defendant’s address in the deed from Christian County to Lawrence County. She paid both the lawyer and the recorder without any prompting from defendant. Such circumstances are illustrative of the evidence in this case which negatives undue influence.

In respect to consideration, it is admitted that no money changed hands but, absent some other compelling circumstance, such is not of itself a sufficient reason for setting plaintiff’s deed aside because a voluntary conveyance is valid as between the parties. Stoops v. Stoops, Mo., 276 S.W.2d 188, 189[1]. If, in addition to no consideration, there was cogent, convincing evidence that plaintiff had no intention to make a gift transferring the remainder interest in her property to defendant, as in Cook v. Branine, 341 Mo. 273, 107 S.W.2d 28, and Colquitt v. Lowe, Mo., 184 S.W.2d 420, we would have a different situation; but in this case we have already determined the failure of plaintiff to meet her burden of proving nondelivery of the deed of gift.

Accordingly, the judgment dismissing Count II of plaintiff’s petition is affirmed; the judgment for plaintiff and against defendant on Count I of the petition is reversed and the cause is remanded with directions to enter a judgment for defendant on Count I of plaintiff’s petition, and to quiet title to subject property in defendant, subject to plaintiff’s life estate.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur except HYDE, P. J., who dissents.


text:
    STATE of Missouri, Respondent, v. Leonard NIEHOFF, Appellant.
    No. 51084.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, F. Daley Abels, Special Asst. Atty. Gen., St. Louis, for respondent.
    O’Hanlon & Daly, Robert J. O’Hanlon, Richard L. Daly, St. Louis, for appellant.
   HOLMAN, Judge.

The defendant, Leonard Niehoff, was charged with stealing property having a value of at least $50, to wit, “Fourteen Thousand One Hundred Dollars,” from Verna Lenau. The offense alleged was of the type which would have been classified as embezzlement prior to the enactment of our revised stealing statutes in 1955. See Sections 560.156 and 560.161, RSMo 1959, V.A.M.S. The jury returned a verdict of guilty and fixed defendant’s punishment at imprisonment in the penitentiary for a term of ten years. Defendant has appealed from the ensuing judgment.

The evidence adduced will support the following statement of facts: In 1954 defendant and Henry Mohr incorporated the Reliance Real Estate Company. During the time in question Mr. Mohr was vice president and secretary of the corporation and owned 30% of the stock. Defendant was president and it may be inferred that he owned substantially all of the remainder of the stock. The company maintained two offices in the City of St. Louis with Mohr in charge of what was called the North Office and defendant in charge of the South Office. The principal business of the corporation was the sale of real estate for customers on a commission basis. In addition to eight office employees, Reliance had approximately fifty salesmen, many of whom were paid a stated sum every two weeks upon a drawing account. As a general rule Reliance closed from 30 to 35 sales each month involving properties having a total value of approximately $350,000.

In the fall of 1963 Angelo and Irene Branca listed their home for sale with Reliance. Miss Verna Lenau, a manicurist at the Park Plaza Hotel, desired to buy a home and upon seeing the Branca property advertised contacted Miss Wanersten, an agent of Reliance, concerning same. After looking at the house, Verna agreed to purchase it for $15,000. The parties signed a sales contract and Verna delivered an earnest money check for $900 to Reliance. Verna went to the office of Reliance on December 5, 1963, for the purpose of closing the transaction and there dealt with defendant. She gave him a cashier’s check payable to Reliance for $14,100. She stated that she wanted to obtain title insurance and a home owners’ insurance policy and paid defendant an additional sum of $256 to cover the cost of the insurance and other items. Defendant told her that the insurance could not be obtained for a few days and that the closing of the transaction would thus he delayed. After a few days Verna apparently became disturbed about the situation. She thereafter telephoned defendant each day for the next fourteen days, but was unable to obtain a deed to the property she had purchased. She employed an attorney who contacted defendant and they agreed upon a meeting at 1 o’clock p. m. on January 10,1964, at the Missouri Title Company for the purpose of closing the transaction. Verna, her attorneys, and the Brancas were present at that time and place but defendant did not appear and the transaction was not closed. Verna’s money was never returned to her and she did not receive title to the property.

In early January 1964 Reliance received some unfavorable publicity and its offices were closed about January 8. A receiver was appointed on February 10, 1964. There was considerable evidence indicating that Reliance was in bad financial condition during 1963 and that defendant resorted to desperate measures in order to keep the company operating. Reliance had a trust account in the North Side Bank which was used solely by the North Office. All transactions were closed in the South Office and at the time of the closing the earnest money payment in the North Office trust account was transferred to the South Office. The main bank account of Reliance was in the Clayton Bank. Substantially all receipts of the corporation were deposited in that account, and all expenses were paid therefrom until the account was closed by the bank in the latter part of 1963. All disbursements from the account were approved by defendant. At the time defendant deposited Verna’s check for $14,100 in the Reliance bank account, the account, according to the checkbook, was overdrawn to the extent of $8,282, and defendant knew of that situation. It was not at all unusual for the Reliance bank account to be overdrawn.

Defendant had a personal account in the American National Bank. In order to obtain temporary credit in the Reliance bank account defendant engaged in a practice referred to as check “kiting.” To accomplish this he would draw a check in a large sum upon his personal account payable to Reliance and this would be deposited in the Reliance account. He would then direct that a check be drawn on the Reliance account in the same amount payable to him and that check would then be deposited in his personal account. Because of the time required in clearing the checks, this was described as amounting to a four-day loan for the benefit of Reliance. The checks written in the “kiting” process for the period of June through October 1963, were as follows: June, $38,000; July, $55,000; August, $88,000; September, $221,-000; and from October 1 to 17, $440,000. Because of this “kiting” practice the Clayton Bank closed the Reliance account in the latter part of October, and the American National Bank requested that defendant close his personal account at about the same time. Defendant then took charge of what had been the trust account in the North Side Bank and it thereafter became the bank account of Reliance.

In order to cover the outstanding checks at the time the account was closed at the Clayton Bank defendant directed that a cashier’s check for $14,000 be delivered to that bank. That money was obtained from the proceeds of the sale of property located at 2341 Esther Street for which the seller never received the money due him. Defendant gave a similar cashier’s check for $1,156 to American National to cover checks that had been written upon his personal account.

When the account was closed in the North Side Bank on January 8, 1964, it was overdrawn in the amount of more than $19,000. It was also shown in evidence that there were ten transactions in which property was sold wherein defendant received the purchase price, and in which the seller never received the amount due for the sale of his property. The amount involved in those transactions was more than $100,000.

It was developed on cross-examination of the bookkeeper for Reliance that the corporation had accounts receivable of almost $200,000 ($115,000 of that amount having been advanced to agents upon drawing accounts), many items of which were eight to ten years old and uncollectible. There was evidence to indicate that the collectible assets of Reliance did not total more than a few thousand dollars.

Angelo and Irene Branca both testified that they were ready and willing at all times to transfer title to Miss Lenau but did not do so because they never received the portion of the purchase price due them. Mrs. Branca testified that she called defendant twice in December in an effort to get the deal closed, and on one occasion when defendant said he had to attend a meeting offered to wait for him at their home until midnight if necessary. She stated that they had a warranty deed prepared and executed and took it to the January meeting so as to be prepared to convey title to Miss Lenau in the event they received the purchase price.

Miss Lenau complained to the circuit attorney on January 10, 1964, and defendant was arrested on this charge the next day.

Defendant testified that when Miss Lenau came to his office on December 5, 1963, she paid him the amount due on the purchase price and other expenses, but that the closing was delayed because she desired to obtain certain insurance policies; that he obtained the policies and then designated December 18 as the closing date but that the transaction was not closed at that time because he could not get the Brancas to come in because Mr. Branca was working. He stated that Mrs. Branca indicated that they were in no hurry to close because they were building a house and would like to delay moving for ninety days; that he later agreed to close the transaction on January 10, but prior to that date he received unfavorable publicity which nullified any possibility of continuing in business and that he closed the office on January 8; that he could have closed the transaction in January 1964, except for the unfavorable publicity, because he had an arrangement for a $60,000 personal loan from relatives which was contingent upon his continuing in business; that he also had a deal tentatively arranged which, if consummated, would have resulted in the receipt of a commission of $75,000.

On cross-examination defendant admitted that he never returned the money to Miss Lenau which had been paid to him, and never “gave” her the property she had paid for. He admitted that he authorized the issuance of all checks on the Reliance account and knew, when Miss Lenau’s check was deposited, that checks had been written on the Reliance account which would indicate on its checkbook an overdraft of $8,200, but denied that the bank account itself would indicate such an overdraft. He further admitted that he knew when he issued checks totaling $440,000, payable to Reliance, in October 1963, that there were no funds in his account to pay them. He said that the kiting arrangement was just an exchange of checks and that it was done to indicate more activity or a larger bank account which he thought would help in an effort to get loans for Reliance; that in each instance where persons were not paid the amount due them upon the sale of their property there was some reason why the closing of the transaction had been delayed. He stated that during all the period in question he received a salary from Reliance of $1,000 a month and that during that time his personal bank balance would seldom exceed $1,000. He admitted that he did not obtain Miss Lenau’s permission to use the money she had paid him for corporate purposes.

Defendant also presented four character witnesses who testified that he had a good reputation in the community for honesty and integrity.

In rebuttal the State produced Melvyn P. Cange, President of the Clayton Bank, who testified that from October 1 to October 25, 1963, Reliance deposited $498,000 in its account, but that there was actually no cash available in the account to pay checks issued thereon.

Joseph D. Weis, Assistant Cashier of American National, also testified in rebuttal that during October 1963 defendant issued checks on his personal account totaling $529,000, and that there was no actual cash available in the account and he therefore requested that defendant close the account.

Further facts will likely be stated in connection with our disposition of certain points briefed by defendant.

The indictment alleged “that the said Leonard Niehoff did then and there intentionally, feloniously and unlawfully steal, embezzle and convert the same monies to his own use without the consent of the said Verna Lenau * * Defendant filed a motion to make that allegation more definite and certain so that it would state whether defendant caused the transfer of the money in his individual capacity and used it for his personal purposes, or transferred it as an officer of Reliance either to his personal use or to the use of Reliance in furtherance of its business. He here contends that the trial court erred in overruling that motion. The cases cited by defendant properly state well-known rules relating to the requirements of an indictment. Those rules were not violated in this case. The indictment alleges the essential facts constituting the offense. It alleges that defendant, as president of Reliance, obtained possession of $14,100, the property of Verna Lenau, and did embezzle and convert same to his own use, without the consent of Verna Lenau. It is not essential that it allege what he did with the money. The offense would be complete regardless of whether defendant converted it to his own personal use or to the use of Reliance. We rule that the court did not err in overruling the motion.

Four indictments were returned against defendant. Three (including the instant one) charged thefts from individuals. The fourth charged that defendant, as president and treasurer of Reliance, had custody of a total of $185,000, the property of the corporation, which (between April 30, 1961, and December 31, 1963) he converted to his own use without the consent of said corporation. Defendant filed a motion to consolidate the instant indictment with the one last described. His theory was that the Lenau charge was included within the charge of systematic thefts from Reliance over a period of time. He contends that the court erred in overruling that motion. We do not agree.

It seems clear to us that since the two indictments charge thefts from different persons they should not have been consolidated. Also, there is some suggestion in the brief concerning double jeopardy but, since this was the first charge tried, it is obvious that said defense could not have been interposed in this case. This point is ruled adversely to defendant.

Over the objection of defendant Miss Lenau was permitted to testify that she obtained the $15,256 here involved by inheritance, hard work, and by borrowing from her family. The next contention of defendant is that the court committed prejudicial error in admitting that testimony because it was irrelevant and would tend to inflame the minds of the jurors and create sympathy for the witness.

Strictly speaking, the evidence complained of was irrelevant. However, we are convinced that it was not prejudicial. The jurors knew, of course, that this money had to come from some source. The testimony specified three sources and was very general in that it did not state the amount obtained from each source. If the jury had any sympathy for the witness it was because she lost a large sum of money. There was nothing unusual about the manner in which she obtained the money and we cannot believe that the jury was concerned about the source of the money or influenced by the testimony relating to that fact. We are supported in our view by the case of State v. Burgess, Mo.Sup., 193 S.W. 821 [4], In support of his contention defendant has cited State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16, State v. Johnson, 349 Mo. 910, 163 S.W.2d 780, and State v. Cavener, 356 Mo. 602, 202 S.W.2d 869. Those cases are readily distinguishable upon the factual situation involved. Johnson and Baublits related to testimony concerning the number and ages of the children left by the deceased in a murder case. In Cavener the question was whether it was prejudicial to permit evidence to the effect that the homicide victim belonged to a certain church and lodge.

We rule that the testimony in question, though immaterial, was not prejudicial and its admission would not warrant a reversal of the judgment herein.

Defendant contends that the court erred in admitting evidence that he “kited” checks because such evidence was irrelevant, constituted proof of unrelated crimes, and presented collateral issues which tended to confuse and inflame the jury. In that connection his brief contains the following: “To establish intent the State was allowed to show instances of eleven separate incomplete real estate transactions, that the corporate bank account was overdrawn most of the time, and that the defendant was kiting checks between banks. While it may have been competent to show the eleven instances of similar incompleted transactions to establish the absence of mistake or accident, and competent to show that the bank balance at or near the time of the crime in question was overdrawn to establish intent by showing the defendant’s need of these extra funds, the fact that he was kiting checks between banks had no legitimate tendency whatsoever to directly establish the defendant’s guilt of the charge for which he was on trial.”

As a general rule proof of the commission of other crimes by the defendant is not admissible. However, “the recognized exceptions to the rule are where the evidence of other crimes tends to establish: (1) Motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the defendant.” State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24.

We have concluded that the evidence in question was properly admitted. The act of defendant in accepting the money of Miss Lenau and depositing it in the account of Reliance, considered alone, was susceptible of an innocent explanation. The evidence of defendant’s check “kiting” showed his desperate need for money in order to keep his business operating and tended to establish his motive and intent in converting the money immediately after it was received. We are mindful that there was an unusually large amount of evidence in this case relating to other crimes and improper business practices of the defendant but it appears that all of the matters shown come within the scope of the exceptions heretofore quoted and hence the court did not err in their admission. We accordingly rule this point against defendant.

In the next point briefed defendant contends that the court erred in refusing to permit him to testify to four items of evidence which he says were material to his defense. The main contention under this point relates to the following: “Q (by Mr. O’Hanlon: Did you intend to steal the money? Mr. Friedman: I object to that question as totally—The Court: It will be sustained. Q (Mr. O’Hanlon) Did you intend to convert the money to your own use ? Mr. Friedman: I’ll object to that, Your Honor. The Court: That is a matter for the jury to decide.” Defendant says he should have been permitted to give direct testimony as to his intent. We agree that the better practice would have been to permit defendant to answer the two questions set out above. However, we do not think the exclusion of the testimony constituted reversible error. In the first place we observe that the facts relating to the theory of the State and the defendant’s theory of defense were fully developed in the evidence. Where, as here, the facts from which the jury may determine the intent of the defendant are fully presented, the defendant’s conclusionary statement as to his intent would not have been of much value. Moreover, we note that no offer of proof was made and we would be justified in disregarding this point for that reason. State v. Dill, Mo.Sup., 282 S.W.2d 456 [12], We rule that fhe error in sustaining the objections heretofore set out does not require a reversal of the judgment.

Defendant contends that the court erred in refusing to permit him to testify that Reliance was placed in receivership in January 1964, but he has obviously overlooked the following question and answer: “Q. Actually, you went into receivership in January; is that correct ? A Yes, sir.”

It is also contended that the court erred in excluding defendant’s testimony as to “how many transactions were closed satisfactorily in 1963 and how much money per month passed through the operation of the company.” While in one instance the court did sustain an objection to testimony of that nature, we find that at another time defendant testified as follows: “Q How many closings did you have a month? A Oh, between thirty, thirty-five. Q Would it be fair to say that they averaged about ten thousand a closing? A Yes, I guess so. Q So that is three hundred and fifty thousand a month business ? A About that, yes, sir.” It is obvious that this point is without merit.

Defendant also asserts that the court erred in excluding his testimony concerning “the faltering financial condition of the Company in 1963; for the reason that this was relevant to explain that the financial loss of Verna Lenau and the eleven others mentioned in testimony was due to business failure and not criminal intent.” He has failed to specify the precise testimony he claims was excluded but we have no hesitancy in ruling that no prejudicial error occurred in that regard. There was an abundance of evidence presented by each side which unquestionably disclosed the “faltering financial condition of the Company,” and defendant testified fully in regard to the facts upon which his theory of defense was founded.

Henry Mohr, over the objection of defendant, testified that over a period of years he made a number of requests of defendant in an effort to get the financial picture of the company. He produced copies of five letters he wrote to defendant which (although not filed here) apparently had something to do with those requests. After an extended discussion (outside the hearing of the jury) the court sustained defendant’s objection to the admission of the letters. Although the contents of the letters were not disclosed to the jury the court, at defendant’s request, told the jurors that they were “instructed to disregard any reference to the letters.” A motion for a mistrial was overruled. Defendant now contends that the testimony of Mr. Mohr and the reference to the letters constituted prejudicial error. We do not agree. The display of the letters without revealing their contents to the jury, particularly when considered in connection with the admonition of the eourt to disregard any reference thereto, could not be considered as prejudicial to defendant. Likewise, we are unable to understand how defendant could have been prejudiced by the fact that Mr. Mohr made requests of him in an effort to determine the financial condition of the Company. His testimony did not indicate whether said financial condition was good or bad. We accordingly rule that no prejudicial error occurred in connection with the evidence of witness Mohr in the respects herein complained of.

The next point briefed by defendant is that the court erred in overruling his objections to the rebuttal testimony of witnesses Cange and Weis concerning the actual cash credit available in the accounts in the Clayton Bank and the American National Bank. He says that said evidence was cumulative of the State’s evidence in chief and did not rebut any new matter adduced by defendant. We agree with the ruling of the trial court that the testimony was proper rebuttal because defendant, on cross-examination, had equivocated a great deal concerning the actual cash credit available in said accounts during the check kiting activity. In some of his answers defendant took the position that he had the amount of money in the accounts that was shown by the deposits even though the checks deposited were those involved in the kiting process. Moreover, we have said that “the scope of rebuttal testimony is largely within the sound discretion of the trial court, and, unless the trial court has abused its discretion to the prejudice of defendant an appellate court will not reverse on that ground, even though the evidence is not strictly or entirely rebuttal evidence.” State v. Sawyer, Mo.Sup., 365 S.W.2d 487, 491. We see no indication that the trial court abused its discretion in this instance. The point is overruled.

Instruction No. 3 contained the following: “‘To his own use,’ as these words are used in this instruction, means the felonious and wrongful appropriation of the property of another for some use inconsistent with the rights of the owner and against the owner’s will.” Defendant contends that said definition was erroneous because “the jury was not required to find one way or the other in regard to the issue of whether the defendant was guilty of stealing money for his own personal use, or was guilty of stealing money for the use of the Reliance Real Estate Company.” As we have already indicated, it is immaterial whether defendant converted the money to his personal use or to the use of Reliance. It follows, therefore, that defendant’s contention of error in regard to the quoted portion of the instruction is without merit.

Defendant also contends that the court erred in refusing to give his submitted Instruction “A” which he says is a converse of the State’s main Instruction No. 2. “ * * * the rule now seems established that a defendant is ordinarily entitled to have given a correct instruction submitting the converse of the state’s main instruction; but, if the given instructions fully and fairly cover the same subject matter contained in defendant’s converse instruction, it is not prejudicial error to refuse the instruction offered. * * State v. Engberg, Mo.Sup., 377 S.W.2d 282, 286. See also, State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596, State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734 [8], and State v. Elgin, Mo.Sup., 391 S.W.2d 341 [12].

Given Instruction No. 2 hypothesized in meticulous detail all of the facts required for a finding of guilt and most of those facts are required to be found twice in the instruction and therefore could hardly have been overlooked by the jury. Every fact required to be found in Instruction “A” is clearly hypothesized and required to be found in Instruction No. 2. Actually, the only disputed issue in the case related to defendant’s intent and “A” submitted no new theory of defense in that regard. Furthermore, No. 2 concluded with these words: “and unless you find the facts to be as set forth herein, you will acquit the defendant.” And Instruction No. 5 told the jurors that the evidence must establish defendant’s guilt to their satisfaction and beyond a reasonable doubt and if they had a reasonable doubt of his guilt they should acquit. Moreover, we are of the opinion that “A” was objectionable because it used the word “mere” in submitting the main facts, which, in our view, tended to improperly depreciate the importance of the submission. For example, it contained the following: “that mere failure to pay over money” and “the mere conversion of it [money] by the defendant.”

In the situation presented, we have concluded that the refusal of the instruction was not reversible error. In support of his contention defendant has cited State v. Chevlin, Mo.Sup., 284 S.W.2d 563, State v. McWilliams, Mo.Sup., 331 S.W.2d 610, and State v. Markel, 336 Mo. 129, 77 S.W.2d 112, in each of which this court reversed because of the refusal of an offered converse instruction. However, each of those cases involved circumstances and instructions quite different from those in the instant case and are not authority for a reversal of this judgment.

The last point briefed is that the court erred in sustaining various objections to portions of the argument of defendant’s counsel. The first statement referred to is as follows: “ * * * Whether he is a thief or whether he is a default business man is the issue; whether this man is guilty of stealing intentionally, unlawfully, or whether perhaps he is guilty of, in a vain attempt, a fatal attempt to salvage his business. On the one hand he is a criminal; on the other hand he is an insolvent. Mr. Friedman: Again, Your Honor, I will object to this, and ask the jury be instructed to disregard it. No showing of this defendant’s financial affairs;—The Court: Sustained.” This ruling could not have been prejudicial because very shortly thereafter he was permitted to make the same argument without objection.

The next complaint relates to the following: “ * * * Where is there anything in this evidence where this man ever derived anything personally from these transactions? Is there any evidence that he lived in Ladue or drove a Cadillac, or was in Florida? Mr. Friedman: I object. That is all beyond the scope of the evidence; has no bearing. The Court: Sustained.” We do not think the court erred in its ruling as the argument did not bear upon any issue submitted.

We also have the view that the following argument was irrelevant and that the court did not err in sustaining the objection thereto: “ * * * if this were a bad year in 1963 for this corporation, but Niehoff stuck it out. He could have, if he wanted to, perhaps in December 1963, closed the door, fired his fifty employees and walked over to the Federal Building and filed bankruptcy. Mr. Friedman: Your Honor, I object to that. It is beyond the evidence in the case and has no bearing or relevancy in the final argument. The Court: Sustained.”

The next statement referred to is as follows: “* * * you may say, ‘Well, Miss Lenau never got the property; she never got the money. I don’t know, Mr. O’Hanlon. That is the issue certainly, but isn’t this man guilty of something?’ Let me see if I can answer that. If you went downtown right now and closed the door of any corporation down there, there are going to be—some people who don’t get their money for a while. Mr. Friedman: I will object. It is beyond the scope of the evidence in this case and certainly not proper. The Court: It will be sustained.” We think the Court ruled correctly. The argument tended to inject a false issue and did not relate to the issue as to whether defendant converted Miss Lenau’s money without her consent.

Another complaint relates to the following: “Miss Lenau gets Mrs. Branca and they go down to the Circuit Attorney’s Office, and there is adverse publicity in the papers. And, of course, when there is adverse publicity the good will of your corporation is destroyed. Who now is going to say, ‘Sell my house, Mr. Reliance Real Estate Company’, or who is going to say, ‘I am going to buy that house ?’ And when the good will of a corporation is destroyed, you must close your doors. Do you understand that? That is not an act of insolvency? Mr. Friedman: I object to this line of argument. The Court: It will be sustained. Mr. Friedman: Insolvency, I’ll ask that the jury be instructed to disregard it. No showing about Mr. Niehoff’s financial status. The Court: The objection will be sustained and the jury instructed to disregard it. Mr. O’Hanlon (Cpntinuing): So when the doors of the corporation are closed, not everybody is satisfied. That cannot be. There is somebody that has to be on the outside.” We confess we are unable to understand what was meant by the statement: “This is not an act of insolvency.” However, we are convinced that the attorney was permitted to make his point that when the corporation had to close its doors there would be dissatisfied creditors and we accordingly rule that no prejudicial error occurred.

The final contention concerns the following argument: “ * * * is this man a thief? Did this happen because he deliberately and intentionally wanted to steal her money,— * * * or did this happen by the ordinary procedures of a struggling corporation, and without some bad breaks he probably would have pulled the thing through the winter and have been successful ? Remember he had a sixty-five thousand dollar deal coming on an airport property — Mr. Friedman: Your Hon- or, there is no evidence to substantiate that. Mr. O’Hanlon: The defendant testified to that. The jury will remember the evidence. The Court: The objection will be sustained. Mr. Friedman: I ask that the jury be instructed to disregard it. The Court: The jury is instructed to disregard it. Mr. O’Hanlon: Your Honor, he testified that he had an airport — The Court: He said he had contracts and negotiations; nothing definite. Mr. O’Hanlon: (Continuing) He had contracts and negotiations, maybe nothing definite, but he told you that he expected to get sixty-five thousand dollars on this contract and other — Mr. Friedman: I object. His expectations are not evidence in this case, and there is no such evidence in this case. The Court: Sustained. Mr. Friedman: I will ask that Mr. O’Hanlon be instructed to refrain from such comments. The Court: Well, there is some evidence that he had contracts and negotiations ; if it was sold and if it went through, they would get a fee. I don’t recall what it was.”

There was testimony by defendant that at the time he had to close his office there was a deal pending from which, if it had been consummated, Reliance would have received a commission of $75,000. It is doubtful whether the argument in question was relevant to the issue as to whether defendant unlawfully converted the money on December 5, 1963. While the court was partially in error as to its recollection of the evidence it was indicated that if defendant sold the property some fee would be received. While the rulings may have been incorrect on the ground contained in the objections we are convinced that no reversible error occurred.

We have read the entire argument of defendant’s counsel. When considered as a whole we have concluded that he was permitted to fully and fairly argue his contentions. The trial court has a wide discretion in controlling the argument. We rule that there was no abuse of discretion in this instance.

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

The judgment is affirmed.

All of the Judges concur.