text:
    STATE of Missouri, Respondent, v. Milton BOWLES, Appellant.
    No. 48884.
    Supreme Court of Missouri, Division No. 2.
    Oct. 8, 1962.

      Blackford, Imes, Compton & Brown, J. William Blackford, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Frank P. Motherway, Special Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Milton Bowles was convicted of molesting Brenda Sue Bowles, his daughter and a minor under the age of 16 years, on or about December 1, 1959, in Clay County, Missouri, as that offense is defined by § 563.160. (Statutory references are to RSMo 1959, V.A.M.S.) His punishment was assessed at two years’ imprisonment in accordance with the verdict of the jury. He has appealed and contends his defense of double jeopardy on the ground of autrefois acquit should have been sustained; that the testimony of the prosecuting witness was so contradictory as to be valueless; and in the submission of the case to the jury he was deprived of his defense of an alibi under the instructions of the court.

The molestation charge was filed June 10, 1960, and the judgment was entered April 4, 1961. On April 13, 1960, defendant was found not guilty by a jury of having carnally known prosecutrix, a female child under the age of 16 years, on or about January 15, 1960, in Clay County, Missouri. (See § 559.260.) In each trial testimony of the other offense went in without objection. Defendant timely filed a plea in bar against being put a second time in jeopardy for the same offense based upon his acquittal of said charge of carnally knowing prosecu-trix. He invokes constitutional and statutory provisions that no person shall “be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury.” Mo.Const.1945, Art. I, § 19, V.A. M.S.; § 556.260. The prohibition is against a second jeopardy for the “same offense.” The test is the identity of the “offenses,” offenses identical in law and in fact. Criminal Law, 22 C.J.S. § 278(1), p. 715, nn. 36, 40, 40.5; State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 64[3].

We have said Missouri does not apply the “same transaction rule” for determining double jeopardy, but follows the “separate or several offense rule,” and we have held that an offender is not to be exonerated “because his desires or passions persuade or impel him to commit two or more offenses during a transaction or occasion.” State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 907[4]. See also State v. Chernick, Mo., 278 S.W.2d 741, 746[3]; State v. Brooks, Mo.App., 298 S.W.2d 511, 513[1-3].

An accused person cannot be brought into court to answer a charge for the commission of one offense and be convicted of an entirely different offense. Mo. Const.1945, Art. I, § 18(a); State v. Burgess, 268 Mo. 407, 188 S.W. 135, 138[7, 8]; State v. Temple, Mo.App., 262 S.W.2d 304[3].

Defendant stresses State v. Toombs, supra, 34 S.W.2d 61, 62, 64[3] et seq. Toombs, president of the International Life Insurance Company, having agreed with Great Southern Insurance Company to substitute 9,000 shares of International stock for collateral theretofore pledged to secure his $500,000 note, procured the signing and issuance to himself of three false certificates of International stock, each for 3,000 shares. (See § 561.610.) Said three certificates were issued to defendant at one time and pursuant to his single direction or request, his purpose, known to all parties concerned, being to pledge said 9,000 shares as security for said $500,000 note. We held that a conviction for the signing and issuance of one of said false certificates barred a subsequent prosecution for the signing and issuance of another of said certificates on the ground that a single offense involving but one transaction at one time, one request or direction and a single intent could not be split up and prosecuted in parts, and that a prosecution for any part of the offense barred subsequent prosecutions for any other part or the remainder of said offense. Other cases stressed by defendant are distinguishable on similar grounds so far as they tend to support his contention. State v. Tatman, 151 Mo.App. 426, 132 S.W. 42; State v. Gant, Mo., 33 S.W.2d 970[2, 3]; State v. Woolsey, Mo., 324 S.W.2d 753[1] (see § 560.110).

This plea in bar is most frequently interposed when two or more crimes are committed in the same transaction or occurrence. See, particularly, State v. Oakes, 202 Mo. 86, 100(1), 100 S.W. 434, 436(1), 119 Am.St.Rep. 792; and also State v. Salter, Mo.App., 256 S.W. 1070[4]; State v. Richardson, Mo., 343 S.W.2d 51, 55[11]; State v. Gant, supra loc. cit. 972[7] (cited by defendant); Annotation, L.R.A.1915A, 256.

Where distinct offenses of the same nature are committed at different times or places, a prosecution for one does not bar a prosecution for the other. State v. Burgess, supra, 188 S.W. 135[10], 139; State v. Florian, 355 Mo. 1169, 200 S.W.2d 64, 68[13]; State v. Hamlin, Mo., 171 S.W.2d 714[2]; 22 C.J.S. Criminal Law § 278(1), p. 719, n. 46; Annotation, L.R.A.1917D, 731.

The charge against defendant of molesting a minor under § 563.160 on or about December 1, 1959, and the charge against him of carnally knowing said minor on or about January 15, 1960, under § 559.-260, involved different acts at different times and different intentions or volitions. In this instance the two offenses differ and require proof of different essential elements. The trial court correctly ruled they were not the “same offense.”

Defendant contends the court erred in overruling his motion for a directed verdict of acquittal at the close of all the evidence for the reason the testimony of pros-ecutrix was not clear and convincing, was not corroborated and was so contradictory as to render it valueless. In ruling this issue the probative evidence favorable to the State is taken as true, as are all reasonable inferences to be deduced therefrom, and all evidence and inferences contrary thereto are disregarded. An accused by putting on evidence takes the chance of aiding the State’s case. State v. Truster, Mo., 334 S.W.2d 104, 107[2, 3],

Prosecutrix was 11 years old at the time involved and 12 at the time of trial. Her testimony may not have been as clear and convincing as desired, but it had probative value and there was corroborating evidence. It discloses that her memory was not the best. She testified that defendant molested her several times during the month of December, 1959, as well as at other times prior thereto; and that defendant played with her private parts on December 1st. On cross-examination, it appears that the molestation prosecutrix best remembered occurred after Christmas, during the Christmas vacation, in December, 1959. On February 2, 1960, defendant gave a signed written statement, the material portions of which were read to the jury. Without quoting or detailing it, defendant admitted, describing his actions in sufficient detail, molesting prosecutrix “about two months ago,” which would be about December 1, 1959. In addition, defendant testified in his own behalf; but testimony adduced by the State contradicted his testimony and strengthened the State’s case, and the jury could find, if it believed the State’s evidence, that defendant’s confession was true and his attempted explanation of it was false. The case was for the jury.

Defendant contends the court erred in giving the italicized portion of the State’s verdict-directing instruction that he “on or about the 1st day of December, 1959, or at any time within three years next before the 10th day of June, I960” molested the prose-cutrix. The information, filed June 10, 1960, charged that defendant committed the offense on or about the 1st day of December, 1959. At the close of the State’s opening statement, wherein it was stated defendant molested prosecutrix on December 1, 1959, and at times prior thereto, and again at the close of the State’s case defendant disclosed his defenses embraced an alibi and requested the State elect upon which molestation the State would go to the jury. The State was not required to elect. Defendant thereafter introduced evidence which would support an alibi for December 1st and also for the Christmas vacation, 1959. We held (citing authority) a like instruction in a similar situation prejudicially erroneous in State v. Chittim, Mo., 261 S.W.2d 79, 80[1], stating: “This instruction nullified appellant’s alibi defense which was supported by substantial evidence.” The record in the case at bar calls for a like holding. Consult also State v. Miller, 263 Mo. 326, 172 S.W. 385, 388[7]; State v. McKinney, 254 Mo. 688, 163 S.W. 822 [2, 3]; State v. Hurley, 242 Mo. 452, 146 S.W. 1154, 1156[3, 4],

The State contends this issue is not available to defendant because the court, at defendant’s request, gave instruction No. 6, which also had the claimed error in it. However, the record discloses that the court refused to give defendant’s requested instruction F which was to like effect as given instruction No. 6 except that it omitted the error common to the State’s verdict-directing instruction and said instruction No. 6. It follows that defendant’s defense of an alibi was prejudicially restricted by rulings of the court over defendant’s objections. Davis v. Chicago & E. I. Ry. Co., 338 Mo. 1248, 94 S.W.2d 370, 373 [7, 8]; Duncan v. Townsend, Mo.App., 325 S.W.2d 67, 70[6].

There is no occasion to prolong this review. The foregoing sufficiently disposes, of the issues briefed in so far as they need be ruled for a new trial.

For the error based on the giving of instruction No. 2, the judgment is reversed and the cause is remanded.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ralph DAVENPORT, Appellant.
    No. 49068.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.
    Karl F. Lang, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James A. Roche, Jr., Special Asst. Atty. Gen., Jefferson City, for respondent.
   HYDE, Judge.

Defendant was convicted of possession of apparatus for the unauthorized use of narcotic drugs and sentenced to five years’ imprisonment under the habitual criminal statute (Secs. 195.020, 195.200, 556.280; statutory references are to RSMo and V.A. M.S.) and has appealed.

Defendant’s brief submits three points, one alleging error in refusing his motion for directed verdict, claiming the State’s evidence was insufficient to prove that the alleged narcotics apparatus seized from the defendant was used to administer narcotic drugs or could have been used to administer narcotic drugs. Closely related thereto is defendant’s claim of error in refusing to sustain his motion to suppress evidence introduced by the State, consisting of the alleged narcotic paraphernalia, contending that this evidence was obtained by illegal search and seizure. As hereinafter appears, this evidence was necessary to make a case for the jury. Defendant’s other point claims improper limitation of cross-examination.

The State’s evidence showed that Sergeant Nance, supervisor in charge of the area involved, with three cars and three beat men under him, while driving his patrol car to the intersection of Enright and Taylor, about 8:00 P.M., heard an alarm go off in a dry goods store on the southeast corner. He parked his car and after finding the front door was secured, tried to get to the rear of the building from Enright but had to come back and go through an alley leading there from Taylor. The rear door of the store was open and he found defendant standing inside the framework of the door. He arrested defendant for attempted burglary. Nance, before leaving his car, had called for dispatching a car to the scene and Officers Fink and Bovinette arrived in the alley to find Nance holding his gun and flashlight pointed at defendant who was at the rear of the store just inside of the doorway. The time they received the call was about 8:10 to 8:15 P.M. At Nance’s direction Fink put his handcuffs on defendant and searched him. Fink said: “In his left front trousers pocket I found a brown piece of wrapping paper, appeared to be wrapping paper, and had rubberband tied around it, and I took the rubberband off, and inside of the paper I found hypodermic needle that had a small wire inside of it, and I found teaspoon with the handles broken off, and I found two syringes, glass tubes, one had a black rubber bulb and one had a red rubber bulb, and one of the tubes was broken.” Fink further testified as to his interrogation of defendant: “I said, 'Does this stuff belong to you?’ and he said, ‘Yes.’ ” Bovinette also saw the search and testified that defendant “admitted they were his” and “stated he used narcotics with those.” John Klosterman, Police Chemist, testified that the teaspoon taken from the appellant’s pocket had a residue of heroin on it, but that the substance on the other pieces of paraphernalia was too minute to conclusively identify. Klosterman also described the paraphernalia and told how it could be used for injection of narcotics. Defendant was arrested on November 22, 1960; and thereafter he was tried on a charge of burglary and acquitted.

Defendant testified he was working at Tyree’s Confectionery, 4857 Maffitt, St. Louis; that he left there around 7:15 or 7:30 to buy shrimp; that he stopped at the Celebrity Bar at Delmar and Taylor and drank some beer; and that he was stopped by Officer Nance after he left the Bar and crossed to the east side of Taylor Avenue. He said Officer Nance took him to the rear of a building and had him pick up a brown envelope with the name “East-on-Taylor Trust Company” printed on it; that Nance stuck the envelope in the appellant’s pocket and that when Officer Fink searched him later he removed the package from his pocket. Defendant denied that the package was opened in his presence and also denied that he had ever admitted to the police officers that the package and its contents were his.

On objection to the testimony concerning the search of defendant and what was found, on the ground no legal arrest and on motion to suppress the evidence of what was taken, the court held a separate hearing and thereafter overruled the objection and the motion. The evidence on this hearing (testimony of Nance) was similar to that above stated, which thereafter was heard by the jury.

Defendant contends that it was error to overrule the motion to suppress and admit in evidence the articles found on defendant arguing that his arrest and the search were illegal because Nance did not have reasonable grounds to arrest him. He says his arrest was unlawful because Nance did not have reasonable grounds to believe that he had committed the felony of attempted burglary. Defendant cites State v. Cuezze, Mo.Sup., 249 S.W.2d 373, but in that case we said: “There is not the slightest evidence that these defendants had committed a crime. There is no evidence that these defendants had committed any misdemeanor in the presence of the police officers. There is no evidence that they had any suspicion that these defendants had committed a felony. * * * There is nothing in the record that would lead any reasonable person to believe that these defendants were going to commit a crime, let alone any specific crime. * * * Under the circumstances in this case, the search could not be upheld, this for the reason that the settled doctrine that a search of a person is justified only as an incident to a lawful arrest. Here the arrest was unlawful.” We have a very different situation in this case, the front door of a store locked, a burglar alarm sounding and defendant found inside the framework of an open rear door in the alley. Our conclusion is that, under these circumstances, Nance did have reasonable grounds to believe that defendant had committed or was attempting to commit a felony and therefore the arrest was lawful and defendant was lawfully searched. See State v. Cantrell, Mo.Sup., 310 S.W.2d 866, 869, 870, followed in State v. Pruett, Mo.Sup., 342 S.W.2d 943, 945; State v. Jonas, Mo.Sup., 260 S.W.2d 3, 5; Sec. 84.090; see also State v. Edwards, Mo.Sup., 317 S.W.2d 441, 445, discussing the Cuezze case; State v. Brown, Mo.Sup., 291 S.W.2d 615, and State v. Drake, Mo.Sup., 298 S.W.2d 374, which were burglar alarm cases; and State v. Raines, 339 Mo. 884, 98 S.W.2d 580. Therefore there was no error overruling the motion to suppress and the articles taken from defendant were properly admitted in evidence.

Defendant’s contention that the evidence was insufficient to prove that the apparatus taken was possessed in violation of the statute is that he “was charged with possession of apparatus for the unauthorized use of narcotic drugs”; that the evidence only showed “the residue on the teaspoon contained heroin”; and that “the spoon alone could not be used to administer narcotic drugs.” Defendant cites State v. Scott, Mo.Sup., 333 S.W.2d 41, and says the evidence in that case showed that both the eyedropper and the needle therein showed the presence of heroin. Defendant further says there was no evidence of needle marks on his body to show he had used the apparatus on himself or to show that the eyedropper and needle had been used or could be used to administer narcotic drugs. Defendant overlooks the testimony of Bovinette that defendant said “he used narcotics with those”, and also the testimony of Klosterman as to how the articles of the apparatus could be connected and used to inject narcotics into the bloodstream. This evidence, together with the showing of the presence of heroin on the spoon used with the other articles, was sufficient to make a case of violation of the statute. Therefore, we hold the motion for a directed verdict of acquittal was properly overruled.

Defendant claims improper limitation of cross-examination of Nance about circumstances surrounding his arrest which he says would show that Nance did not have reasonable grounds to arrest him. Defendant’s brief thus states these circumstances he desired to show: “If all the facts concerning the condition of the store at 730 North Taylor could have been developed, they would have shown that there were two rear doors to the building that had been forcibly opened prior to the arrest. It would have also been shown that a padlock had been removed from one of the doors. However, no burglar tools to force open the doors or to break the padlock were found on or about the appellant. These facts, together with the additional fact that the alarm was ringing for several minutes prior to the arrest, would tend to show that appellant was not attempting a burglary at the time of the arrest.” We find that Nance did say on cross-examination that there were two open «ear doors. When asked if there was a lock on any of them, objection for the State was made that “counsel is retrying the burglary case and that’s not at issue in this case.” Defendant’s counsel then made the following offer of proof: “I offer to prove he was tried in this case for burglary charge and was acquitted, and in that case the evidence shows there was a lock on the door but that it had been broken, but was never found, and there had been no tools on Davenport; that he was searched, and nothing in connection with the search that the officers made that connected him with that burglary; and his defense was that he was arrested on the street, that he was not arrested back there.” The State’s objection was sustained. Obviously this offer of proof was different from the above-stated circumstances set out in defendant’s brief and concerned matters shown in the trial for burglary rather than facts known to Nance when he arrested defendant.

There was another reference to this matter as follows: “Q Did you find anything else, any money, or any wallet, or burglar tools? MR. ROCHE: I object to that. There is no issue in this case as to burglary tools. MR. LANG: There is, Your Honor. THE COURT: Sustained.” Thereafter, there was much more cross-examination about the search by Fink, in the presence of Nance, as to what was found, how defendant was dressed, his later questioning at the police station, his denial of the burglary and statements he made at the scene and at the station. It is apparent that the offer of proof made concerned the later burglary trial, the defense defendant made to it and its result. Defendant cites Alford v. U. S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, and State v. Thompson, Mo.Sup., 280 S.W.2d 838, which cites the Alford case. In the Thompson case, the defendant was not permitted to show on cross-examination that a witness against him had made prior inconsistent statements concerning & material matter. In the Alford case, the-purpose of the cross-examination was to> show that a witness’s “testimony was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States, which was conducting the present prosecution”; and “that his testimony was affected by fear or favor growing out of his detention.” These are very different matters from those stated in defendant’s offer of proof; and whether or not defendant was actually guilty of burglary did not make his arrest tin-lawful if the reasonable appearances of the situation at the time did so indicate. “The court is invested with much discretion, and necessarily so, in determining the extent of cross-examination.” State v. Turner, Mo.Sup, 320 S.W.2d 579, 584; see also State v. Russell, Mo.Sup, 324 S.W.2d 727, 732; State v. Burchett, Mo.Sup., 302 S.W.2d 9, 18, and cases cited. On the offer of proof made, we find no abuse of discretion of the trial court.

We have examined the record as required by Rule 28.02, V.A.M.R. Although the transcript does not show formal arraignment, this does not constitute reversible error because defendant was tried as if he had been arraigned and entered a plea of not guilty. Rule 25.04. We find no error respecting the sufficiency of the information, verdict, judgment and sentence.

The judgment is affirmed.

All concur.


author: PIOUSER, Commissioner.

text:
    Russell DEAN, Appellant, v. William NOVAK, d/b/a Kay’s Delivery Service, Respondent. Erma DEAN, Appellant, v. William NOVAK, d/b/a Kay’s Delivery Service, Respondent.
    Nos. 49178 and 49179.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.
    Jones & Tager, Stephenson, Henry & Schollars, Kansas City, for appellants.
    Lane D. Bauer, Kansas City, for defendant-respondent. Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   PIOUSER, Commissioner.

These are appeals from orders of the Circuit Court of Jackson County dismissing two petitions for damages on the ground that they are barred by limitations. The two appeals have been consolidated for the determination of a common question of law.

On August 31, 1961, in the Circuit Court of Jackson County, Missouri, Russell E. Dean and Erma M. Dean filed separate petitions for damages for personal injuries alleged to have been sustained by them in Kansas City, Kansas on December 11, 1958 when a truck, owned by defendant and driven by his agent and servant, negligently struck the rear of a vehicle occupied by plaintiffs. Both petitions contained this allegation:

“1. That plaintiff is a citizen and resident of the State of Kansas, residing at 1519 South Main Street, Ottawa, Kansas; and that defendant William K. Novak is an individual doing business as ‘Kay’s Delivery Service’ and maintaining his office at 1510 Charlotte Street, Kansas City, Missouri; that at all times hereinafter mentioned, defendant’s vehicle was operated by one Jimmy Briggs, the agent, servant and employee of defendant, acting in line with his duty and full scope of employment for defendant.” Neither petition contained any allegation with respect to the residence of defendant or his presence in or absence from the state since December 11, 1958.

Defendant filed the following motion to dismiss in both cases:

“Comes now defendant and moves the Court to dismiss this action for the reason that it fails to state a claim for relief which can he granted against defendant as it affirmatively appears on the face of the petition that this action is barred by the Kansas Statute of Limitations, General Statutes of Kansas, 1949, Section 60-306, in that plaintiff alleges [he] she was injured on December 11, 1958, in Kansas City, Kansas, and the above action was not filed until August 31, 1961, more than two years after the accrual of plaintiff’s cause of action.”

The trial court sustained the motion to dismiss in each case. Each plaintiff appealed to this Court, which has jurisdiction since the prayer of each petition is for $25,000.

Under the statute of limitations in Kansas tort actions for personal injuries can only be brought within two years. Kansas General Statutes, § 60-306. If not filed within two years of the date of injury, such actions are barred. Nashville, C. & St. L. Ry. v. Dale & Nessly Milling Co., 68 Kan. 108, 74 P.596.

The alleged injuries occurred on December 11, 1958. Plaintiffs filed their actions on August 31, 1961, more than two years and eight months after the alleged date of injury, so the actions were barred by § 60-306, supra, unless plaintiffs are saved therefrom by the Kansas “tolling statute,” Kansas General Statutes, § 60-309, which provides: “If when a cause of action accrues against a person he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if after the cause of action accrues he departs from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. * * * ”

In the trial court plaintiffs sought to avail themselves of the benefit of the toll- ( ing statute without alleging or proving but by simply assuming the facts essential to invoke the tolling statute, namely, that on the date of the alleged injury, December' 11, 1958, defendant William Novak, a resident of Missouri and nonresident of Kansas, was out of the State of Kansas, and did not come into the State of Kansas during the two-year period following the accrual of the causes of action. Neither in the circuit court nor in this Court did defendant concede these vital facts. Plaintiffs in their appeal brief again assumed that defendant was a resident of Jackson County, Missouri at the time of the collision and (without anything in the record to support the statement) recited that “defendant was absent from the state during the two-year period following the accrual of the cause of action.” Defendant took issue with plaintiffs on this question, stating in the first point of his brief on appeal that “There is no pleading or proof in the record that defendant was a nonresident of Kansas, and therefore the Kansas tolling statute * * * is not applicable and these actions are barred by the Kansas two year statute of limitations * *

Professing surprise at the unwillingness of defendant to make the concession, plaintiffs filed a Motion to File Addendum to Transcript on Appeal on the day of oral argument in this Court, seeking to add to the transcript an admission by defendant that he is a nonresident of the State of Kansas, which statement apparently was made in defendant’s suggestions to the trial court in support of defendant’s motion to dismiss. (Defendant, seeking to nullify the application of the tolling statute apparently stated therein that defendant was a nonresident of Kansas when plaintiffs’ causes of action accrued as a basis for his contention that the tolling statute was inapplicable because as a nonresident motorist defendant was subject to and available for process by service upon the Secretary of State of Kansas under the provisions of Kansas General Statutes, § 8-401, commonly known as the “long-arm” statute.)

Absent consent of the parties (not given) the motion to add to the transcript of the record was too late. Sup.Ct.Rule 82.14(a), V.A.M.R.; Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 520. While this Court may, if it deems necessary, order the filing of a supplemental transcript on appeal including any additional part of the record, proceedings or evidence, or direct the clerk to send up any original documents or exhibits, Sup.Ct.Rule 82.12(c), it is futile to make any such order in this case because the suggestions, even if incorporated in the record, would not supply the missing link in plaintiff’s chain. The only admission therein is that of non-residence. The statement as to nonresi-dence alone would not be decisive and dis-positive of the case. In order to establish that the two-year statute of limitations was tolled it was plaintiff’s burden to establish that on December 11, 1958 defendant was out of the State of Kansas, and that he did not come into the State of Kansas during the two-year period following December 11, 1958. The suggestions contain no such admission. Contrast this with the situation in Nastasio v. Cinnamon, Mo.Sup., 295 S.W.2d 117. Accordingly, plaintiffs’ Motion to File Addendum to Transcript on Appeal is overruled.

Turning to the record, plaintiffs did not prove and defendant did not admit the essential missing facts above italicized. Therefore plaintiffs must face the bar of the Kansas two-year statute of limitations without the benefit of the Kansas tolling statute. Since these actions could not be maintained in Kansas because of the statute of limitations of that state they are also barred in this state. McLendon v. Kissick, 363 Mo. 264, 250 S.W.2d 489, 491.

This dispenses with the necessity of considering the contentions of the parties with respect to the effect of the nonresident motorist statute, Kansas General Statutes, § 8-401, upon the tolling statute, Kansas General Statutes, § 60-309, and requires the affirmance of the judgment appealed from. It is so ordered.

COIL, C., concurs in result.

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. James WIGGINS, Appellant.
    No. 49220.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.

      James Wiggins, pro se.
    Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant has appealed from the order and judgment of the Circuit Court of Jackson County overruling his motion to set aside and vacate a prior judgment of that court wherein he was, on October 1, 1942, adjudged guilty of the crime of rape and sentenced to be imprisoned in the penitentiary for and during his lifetime. In that proceeding defendant had been charged with a prior felony conviction under the provisions of the Habitual Criminal Act as it then existed. See § 4854, RSMo 1939. In that respect the indictment therein charged that defendant, “on the 7th day of December 1938, at the County of Jackson and State of Missouri, was then and there convicted of a felony to-wit: Rape and sentenced to a term of five years in the Missouri State Penitentiary therefor, and that thereafter on the 27th day of September 1940, upon completion of said sentence he was duly discharged from said penitentiary * * The jury found the prior conviction as charged.

While the pro se motion to vacate does not specifically refer to S.Ct. Rule 27.26, V.A.M.R., it is obvious that it was filed pursuant to that rule. The sole ground upon which the motion sought relief was the insufficiency of the evidence to support a submission under the Habitual Criminal Act. Section 4854, supra, contained the requirement, in regard to the prior conviction, that the defendant “shall be discharged, either upon pardon or upon compliance with the sentence * * Air exhibit attached to the motion disclosed that the defendant was imprisoned in compliance with the sentence imposed on December 7, 1938, and that on September 27, 1940, the Governor granted a “conditional commutation of sentence for purpose of parole” under which defendant had been discharged. Specifically, defendant in his motion contends that at the time of the trial of the second case in 1942 he had not been discharged from the first sentence, either upon pardon or compliance with his sentence, because he had been paroled by the Governor. Defendant alleged, therefore, that he was not legally subject to the Habitual Criminal Act.

The trial court overruled defendant’s motion without granting a hearing thereon, thus indicating its view that the motion disclosed on its face that no claim for relief was stated therein. For the reasons hereinafter stated, we are in accord with the action taken by the trial court in overruling' said motion.

Under the provisions of our present Habitual Criminal Act the trial judge hears the evidence concerning the prior conviction out of the hearing of the jury and the court enters its findings thereon. Section 556.280(2), P.P.Vol. 40 V.A.M.S. However, under the statute in effect at the time of defendant’s trial (§ 4854, supra), the State was required to present to the jury the evidence concerning defendant’s prior conviction, imprisonment and discharge, and the jury, under appropriate instructions, made its findings in regard thereto in the same manner as it determined other issues in the case. It is therefore apparent, as heretofore stated, that defendant’s motion seeks to set aside the judgment of conviction because of the insufficiency of the evidence to support the submission under, the provisions of the Habitual Criminal Act. It is well settled that S.Ct. Rule 27.26, V.A.M.R, does not afford a basis for the review of trial errors such as the one of which defendant now complains. This court has stated that the “statutory motion to vacate and set aside a judgment and sentence may not be used in lieu of an appeal to review errors committed in the course of the trial, even though such errors relate to constitutional rights, or to question the sufficiency of the evidence to support the conviction.” State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135-136. If defendant desired a review of the sufficiency of the evidence in the respect heretofore noted he should have assigned the alleged insufficiency thereof as a ground in his motion for new trial, and, in the event of an adverse ruling he could have appealed to this court.

Although the matter complained of is not before us for review we state, ex gratia, that there is no merit in defendant’s contention. It has long been settled by this court that a discharge under “conditional commutation of sentence” is a “pardon” or “compliance with the sentence” within the meaning of § 4854, supra. State v. Peterson, Mo.Sup., 305 S.W.2d 695; State v. Pitts, Mo.Sup., 282 S.W.2d 561.

The judgment is affirmed.-

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Frank HOWARD, Appellant.
    No. 49356.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.

      Welker & Young, Portageville, for appellant.
    Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Special Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

Frank Howard, indicted under the Habitual Criminal Statute, w'as convicted by a jury of forcible rape of a female over the age of sixteen years. Section 559.260, RSMo 1959, V.A.M.S. The trial judge heard evidence and found that Howard previously had been convicted of burglary, 'second degree, and stealing, and that he had been duly sentenced, imprisoned and discharged. The trial judge fixed the punishment at 50 years’ imprisonment in the state penitentiary. Howard’s attorney filed a motion for new trial, which the court overruled after a hearing. After allocution and sentence Howard took an appeal, but failed to file a brief. In this situation we review all specifications of error properly preserved in Howard’s motion for new trial, Sup.Ct. Rule 27.20, V.A.M.R., and the portions of the record required by Sup.Ct.Rule 28.02, V.A.M.R.

Briefly stated, the state’s evidence tended to show these facts': Howard went to the apartment house where the victim and her husband lived, opened a kitchen window and entered their apartment at about 4 o’clock in the morning. The victim, 23 years of age, and her husband were in bed. Howard roused the husband from his sleep, pointed a pistol at him and told him to get up. At gun point he forced the husband to lie on his stomach on the bed while he tied his hands behind his back. Howard motioned to the victim to get out of bed, then pulled the sheet over the husband, covering his head. Howard asked for money. The victim handed him $20 from her purse and he took $2 from the husband’s wallet. Howard followed the woman to the bed, grabbing her clothing and instructing her to disrobe. When she refused he threatened to shoot her and her husband. After she removed her clothing Howard, brandishing the pistol, made her lie on the bed beside her husband, where Howard committed a complete act of rape upon her. When she cried he told her to stop or he would shoot her and displayed a paring knife, which he drew across her face during the commission of the rape. She became ill, threw up, and was permitted to go into the bathroom. Thereafter Howard forced her to submit to another act of rape in an unnatural position, the sordid details of which we leave in the transcript. Both husband and wife pleaded with the rapist for the safety of each other. The husband loosed his bonds during the second act of rape and grappled with Howard. In the struggle the men fell against and shattered a window. Howard beat the husband over the head with the pistol, a plastic toy replica, breaking the pistol, the pieces of which were later found on the floor by the police. Although masked when he entered the apartment, Howard’s face was seen in the light by both the victim and her husband when during the struggle the cloth fell down around his neck. Howard managed to escape out the kitchen window. The victim rushed into the halls of the apartment house, completely disrobed, crying for assistance. Howard was positively identified, not only by the victim and her husband, but also by a disinterested tenant in the apartment house who happened to be up at the time feeding a baby. Hearing a noise on the fire escape this witness looked out the window, saw Howard, and threatened to shoot him if he did not get off the fire escape. This was shortly before 4 a. m. A holster, linked by evidence to the toy pistol, was found at Howard’s home. The state’s case was completed by a detailed signed confession, voluntarily given. (Howard denied that he was at the scene of the crime, and claimed that the confession was extorted by force.)

The grounds of Howard’s motion for new trial follow:

“1. That the verdict of the jury is against the weight of the evidence.

“2. That the verdict of the jury is against the law.

“3. That the verdict of the jury and the judgment of the Court, are against the law, against the weight of the evidence and the evidence under the law.

“4. That the verdict of the jury is the result of passion and prejudice.

“5. That the Court erred in admitting evidence over the objection of the defendant, which evidence was irrelevant, immaterial, hearsay and inflammatory.

“6. That the Court erred in admitting evidence on behalf of the State, over the objection of the defendant.

“7. That the Court erred in sustaining tire objection on the part of the State, which evidence was material and relevant on behalf of the defendant.

“8. That the Court erred in permitting the State to introduce evidence which was inadmissible, erroneously and highly prejudicial, said evidence having not been properly identified by the State.

“9. That the Court erred in permitting the jury, over the objection of the defendant, to individually read a statement made by the defendant, which previously had been read by a witness for the State, to the jury, at great length.

“10. That the Court erred in permitting the State to do this, because it placed undue emphasis on.the evidence, which gave to said evidence undue publicity and notoriety.

“11. That the Court erred in not permitting counsel for defendant to argue matters concerning the evidence which was set forth before the jury.

“12. That the Court erred in objection by the State, to argument of defendant’s counsel concerning matters which were highly important, necessary, relevant and material to the defendant’s defense.”

Grounds 1, 2, 3 and 4, relating to the verdict, are so general that they present nothing for appellate review. Sup.Ct.Rule 27.20; State v. Feasel, Mo.Sup., 344 S.W.2d 41; State v. McMillian, Mo.Sup., 338 S.W.2d 838; State v. Terry, Mo.Sup., 325 S.W.2d 1, 8.

Equally defective are general grounds 5, 6 and 8, relating to the admission of evidence, for they fail to specify any particular evidence, and present no reason for the several assignments of error. Sup.Ct.Rule 27.20; State v. Foster, Mo.Sup., 349 S.W.2d 922; State v. Terry, supra; State v. Reece, Mo.Sup., 324 S.W.2d 656. Ground 7 relating to the exclusion of “material and relevant” evidence offered by Howard, which offers no reason for the claim of error, is wholly insufficient to inform the trial court of the merits of the assignment, as is required, State v. Harris, Mo.App., 325 S.W.2d 352, and fails for indefiniteness. State v. Ivory, Mo.Sup., 327 S.W.2d 870.

Grounds 9 and 10 seek to raise the point that it was error to permit the jurors individually to read Howard’s confession in the form of a written statement which previously had been read to the jury by a witness for the state, because this placed undue emphasis, publicity and notoriety on this piece of evidence. The objection at the trial was that the statement had been “read in full to the jury yesterday afternoon” and that there was “no reason why that should be passed among the jury.” We find no error in permitting the jurors to -inspect the statement on the ground of repetition or undue emphasis. Whether the jurors as individuals should have been permitted to examine the document (for signatures or other reasons), even though previously read to them as a group, was a matter resting within the sound discretion of the trial court, and no abuse of discretion has been shown.

Grounds 11 and 12, complaining of the court’s rulings with reference to the scope of argument allowed Howard’s counsel, are insufficient to preserve anything for appellate review. They fail to specify what particular remarks Howard’s counsel was not permitted to argue or in what respect they were important and relevant to his defense. Only a general reference is made to the matter of argument and rulings. This is insufficient. State v. Farris, Mo.Sup., 243 S.W.2d 983.

The indictment is in proper form and is sufficient in substance. It properly charges forcible rape. Howard was duly arraigned before the court and plead not guilty. Howard and his counsel were present and participated in all steps of the proceedings. We have carefully considered the record and find no reversible error. There is ample evidence to sustain the conviction. The verdict is in proper form and substance and is responsive to the issues. The punishment was duly assessed by the trial judge under the Habitual Criminal Act; is within the prescribed limits, and under the facts is not excessive. Allocution was granted. The judgment is proper in form and substance, and sentence was duly imposed. The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Mose Wesley SANDERS, Appellant.
    No. 49283.
    Supreme Court of Missouri, Division No. 2.
    Oct. 8, 1962.

      Martin Anderson, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was convicted by a jury of first degree robbery. The punishment assessed by the jury was the minimum of five years in the penitentiary, and the court thereafter sentenced defendant to such a term. He has appealed, after an unavailing motion for a new trial. A brief has been filed here on defendant’s behalf. A short summary of the evidence will suffice, as the sufficiency of the evidence is not questioned.

The State’s evidence reasonably showed these facts: that two Negro men came up to the window or counter of the “Dairi-Swirl” at 1701i/> East Ninth Street in Kansas City, at about 9:45 p. m. on July 14, 1961, and ordered hamburgers; one Carl Ribando was in charge. He proceeded to cook the hamburgers and when he started to hand the second man his, the man pointed a revolver at him and told him to “leave the nickels and dimes out”; Ribando took $35 from the cash register, put it in the sack with the hamburger and gave it to the man, whereupon the two left; the man with the revolver wore a red bandanna on his head. The “Dairi-Swirl” had exterior lighting. Ribando promptly called the police and reported the occurrence; he was later unable to identify the men among suspects at police headquarters. On August 14, 1961, one month later, a man walked up to the window at the same place about 9:00 p. m. and Ribando immediately recognized him as the robber to whom he had given the money previously; this man placed a cigar box on the ledge or counter, and momentarily waited; Ribando did not go to the window but said, “Wait a minute,” and told his mother nearby to call the police; when she got up to do so, the man walked away. On this occasion the man again wore a bandanna which Ribando thought was blue. After a brief interval, Ribando went outside and noted that this man had walked west on Ninth to Highland Avenue and south on Highland. When the officer came, Ribando reported the events, including his identification of the man, and the two rode south on Highland in the police car. They found defendant (as he turned out to be) walking near Eleventh and Highland and pulled in behind him; Ribando identified him to the officer as the man they were looking for. When the officer called “hold it,” the man reached in the cigar box which he was carrying and took out a revolver but, as the officer drew his own gun and ordered him to “drop it,” he did so. The revolver was a .32 caliber, nickel or chrome plated, slightly rusted, and containing three loaded shells and one empty; it was identified at the trial as identical to the one used in the July robbery. A blue bandanna was found in the man’s pocket. This man was arrested and is the present defendant; he was positively identified by Ribando at the trial as the one who had robbed him.

The defendant denied all connection with the robbery, testified that he had been drinking in taverns and playing pool on the afternoon of July 14, 1961, and that he was at home or next door from about 6:30 p. m. and during the rest of that evening. In this latter statement he was largely corroborated by two witnesses, Ernestine Rowe and Nina May Winn. Reference will be made to one of these later. Defendant also testified that he found the revolver and the cigar box in the street or gutter on Ninth Street while walking in the neighborhood on the evening of August 14, 1961, and that, while he may have walked by the “Dairi-Swirl,” he did not stop there at all. He admitted that he had a “head-scarf” with him on the evening of August 14, which he said he sometimes wore to give his “hair a wave” when he went to bed, or when the wind was blowing.

Counsel for defendant raises here the inadmissibility and prejudicial effect of several portions of the evidence, apparently assuming that he is permitted to do so under the first assignment in his motion for new trial. That assignment is as follows: “Because the Court erred in admitting incompetent, irrelevant, immaterial and prejudicial evidence offered by the plaintiff over the objection of this defendant.” Such a general assignment is wholly insufficient under Rule 27.20, V.A.M.R. to preserve any evidentiary point for review. State v. Thomas, Mo., 309 S.W.2d 607, 610; State v. Hathaway, Mo., 269 S.W.2d 57, 61; State v. Turner, Mo., 320 S.W.2d 579, 586; State v. Foster, Mo., 349 S.W.2d 922; State v. Reece, Mo., 324 S.W.2d 656; State v. Howard, Mo., 360 S.W.2d 718. Consequently, we proceed no further with the argument under that point.

A point is also made that the prosecutor was permitted to make inflammatory statements in his closing argument which were not based on the evidence. ' In the motion for new trial the corresponding assignment was equally general. The particular statements complained of, or at least their substance, should be pointed out; consequently, the assignment in the motion is insufficient to preserve the point for review. State v. Farris, Mo., 243 S.W.2d 983, 988; State v. Howard, supra. We have, of our own motion, examined the remark now complained of; it was: “You see that is the pattern of criminal psychology, returning to the scene of the crime and making an effort to attempt it the second time.” The objection made at the trial was directed at the suggestion that defendant was back “to commit another crime.” The statement as made was a fair and permissible inference from all the evidence and, moreover, counsel had permitted the prosecutor to make a substantially similar statement in his initial argument without any objection. There was no error in this ruling, even had the point been preserved.

We next consider an evidentiary point which defendant has raised in his motion for new trial, giving him the benefit of some doubt. This concerns the cross-examination of Ernestine Rowe, one of defendant’s alibi witnesses; the point is made that the court permitted a false issue to be introduced, instead of confining the evidence to such as would challenge her veracity and character as a witness. The witness was asked if she recalled talking to Officer Thomas. When an objection to this was overruled, the witness was then asked (before she answered the prior question) if, on a certain day, she had talked with Officer Thomas of the Kansas City Police Department “about a matter of some stolen money orders”; objection was made that this question did not inquire about any conviction and was inflammatory; this objection was sustained. The witness was then asked if she had ever made any statement “indicating that you participated with Carol Taylor in the procurement, in the cashing of two checks * * * taken from Ronald Stone * * An objection was overruled and the witness answered, “No”; she also denied making any such statement “to anybody.” An objection was then sustained to a question asking whether she denied making such a statement to Officer Thomas; a motion that the jury be instructed to disregard the “statement” (question) was not ruled on. Thereafter Officer Thomas was produced in rebuttal and, over a rather general objection to any questions “along the line of investigation of a complaint * * * a side issue * *,” the witness was permitted to testify that he had interviewed Ernestine Rowe about a complaint concerning some money order blanks, after being assigned to the investigation, and that she made an oral statement. He was asked also if she denied participation; an objection and considerable colloquy followed, and that question was never answered. The officer’s testimony was offered expressly as impeachment, “because she denied she had made any statement” to the Police Department. Defendant made no sufficient assignment in his motion for new trial to the admission of the rebuttal testimony, so we confine our primary consideration to the cross-examination of Ernestine Rowe.

Counsel for the State seek to justify this line of questioning upon the theory that, in fact, no impeachment actually resulted, even from the rebuttal testimony, since Officer Thomas did not testify that the witness did implicate herself. That is a rather ineffective answer. The question is not whether she was actually impeached, but rather that references to an investigation of the witness for a possible criminal offense, not even rising to the dignity of a formal charge, were paraded before the jury in a palpable effort to discredit her, and this on a purely collateral matter. In spite of confusion in the questions, objections, rulings and answers as they appear in the record, there is no doubt that this dominant idea was put across to the jury.

Counsel for the State apparently treat this as merely an attempt to impeach the witness upon a collateral matter; and, as indicated above, say that no impeachment was thus accomplished, so no harm was done. It has been held that a witness may not be cross-examined as to a collateral matter for the purpose of impeaching his testimony later by contradicting him. Marrah v. J & R Motor Supply Co., Mo.App., 165 S.W.2d 271, 275. But the principal vice in the present line of questioning arises from the violation of the established rule that a witness’ credibility may not be attacked by showing a mere arrest, investigation, or criminal charge which has not resulted in a conviction. Marrah, supra; State v. Menz, 341 Mo. 74, 106 S.W.2d 440; Vol. 20 Mo.Law Review, loc. cit. 181, 182; State v. Pine, 332 Mo. 314, 57 S.W.2d 1087; State v. Perkins, 342 Mo. 560, 116 S.W.2d 80; Holden v. Berberich, 351 Mo. 995, 174 S.W.2d 791, 149 A.L.R. 929; Hoffman v. Graber, Mo.App., 153 S.W.2d 817. Perkins, supra, specifically involved questions concerning calls on the witness by the police on suspicion or in an investigation. An exception to the rule has infrequently been noted where the inquiry showed a specific interest of the witness. That question was discussed in Holden, supra. We have noted the case of State v. Foster, Mo., 349 S.W.2d 922, (not cited by either party) but we do not consider it applicable here. The court there held questions and answers concerning an admission or confession of a crime not to be erroneous. But the underlying facts and the proceedings there were substantially different from ours, and the witness volunteered an answer before an objection could be ruled on. We do not regard that opinion as creating a general exception to the rule stated; in any event, the questions asked here were too vague and confused to be considered as calling for a confession of a crime.

While the impropriety of the testimony of Officer Thomas has not been preserved, we may consider it in determining the prejudicial effect of Ernestine Rowe’s cross-examination. Thomas was permitted, over objection, to testify that he was assigned to the investigation of a complaint concerning the “procurement” of some money order blanks (one answer referring to them as “stolen” was stricken as not responsive), that he talked to Ernestine Rowe during the course of this investigation, and that she made an oral statement to him. A question as to whether Rowe ever denied to him that she had participated in the theft of such money orders went unanswered in the ensuing colloquy and the confusion thus engendered, with no ruling on an objection. We hold, especially in the light of this background, that the indicated cross-examination of Ernestine Rowe constituted reversible error.

The remaining point made is that, the conduct and attitude of the court toward the defendant and his witnesses were improper. More specifically, counsel stated during the cross-examination of defendant: “The record won’t reflect it so I would appreciate and I am going to make a request that every statement made by the defendant the Court smiles as though it could not be believed, I would like that in the record.” No ruling was made or required. Again, during the same cross-examination and following a motion for a mistrial because of a specific question asked, counsel added: “ * * * and by the expression on the Court’s face it has not rendered a fair and impartial trial to this defendant as he is entitled.” The court then overruled the objection (motion). It is hardly necessary to say again here that the court must always maintain an absolute impartiality in any trial, both in its remarks and in its conduct generally; it should not do or say anything which might prejudice the jury or be construed by the jury as indicating a belief in defendant’s guilt or innocence. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441; State v. Castino, Mo., 264 S.W.2d 372; State v. Jones, Mo., 197 S.W. 156; State v. Bunton, 312 Mo. 655, 280 S.W. 1040; Canons of Judicial Ethics, Canon 3. If this record demonstrated any departure from these standards of judicial conduct, we would not hesitate to declare it reversible error. Here, however, there is nothing whatever in the record but counsel’s brief statements to indicate any departure. They are not self-proving. In such instances counsel may either ask for a recess and produce evidence, out of the presence of the jury, to substantiate specific • objections or motions, or he may produce evidence in support thereof at the hearing on his motion for new trial. We have nothing to act upon here.

For the errors noted, the judgment is reversed and the cause remanded for a new trial.

All of the Judges concur.


author: MAUGHMER, Commissioner.

text:
    Jerry Lee HULEN, Appellant, v. The AMERICAN OIL COMPANY, a Corporation, Respondent.
    No. 23560.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.

      Sol M. Yarowsky, Kansas City, for appellant.
    Jesse L. Childers, Kansas City, Madden & Burke, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

Under his petition filed in Jackson County, Missouri, plaintiff sought to recover for personal injuries and property damage, allegedly incurred by reason of defendant’s negligence. The trial court sustained defendant’s motion and entered summary judgment for defendant under the pleadings.

Plaintiff’s notice of appeal is “from the order overruling plaintiff’s motion for new trial * * * The right of appeal is purely statutory and where the statutes do not give such right, no right of appeal exists. State ex rel. State Highway Commission v. Smith et al., Mo., 303 S.W.2d 120; Walker v. Thompson, Mo., 338 S.W.2d 114, 116. Section 512.020, V.A.M.S. authorizes an appeal from any “final judgment”. The appeal and notice should be from the final judgment and not from the action of the trial court in refusing to grant a new trial. However, our appellate courts have been most liberal in construing the appeal statutes and where there is actually an attempt in good faith to appeal from a final judgment, to sustain the appeal rather than to dismiss it for any inadequacies of the notice. Walker v. Thompson, supra; Woods et al. v. Cantrell et ux., 356 Mo. 194, 201 S.W.2d 311, 315, and Terry v. Metropolitan Life Ins. Co., Mo.App., 206 S.W.2d 724. The appeal here will not be dismissed.

Since the judgment as entered and appealed from was summary and on the pleadings, we shall inspect and consider the pleadings quite fully. Plaintiff in his petition alleges that he is a resident of Kansas City, Jackson County, Missouri, that defendant was engaged in oil refinery operations at Wood River, Illinois, and was authorized to do business in Missouri. He alleges further that at approximately 9:00 a. m., January 27, 1961, he entered upon and drove his 1960 Pontiac automobile upon defendant’s premises in Wood River, Illinois, upon a private road thereof, and that defendant’s employee negligently operated defendant’s locomotive engine and oil car along defendant’s track and struck plaintiff’s Pontiac, causing plaintiff to suffer personal injuries and property damage.

By its answer defendant admits the collision occurred, reasserts that the entire incident took place on its private property and as a complete bar to the cause of action pleaded that plaintiff requested permission to enter upon its private premises, which permission was granted upon and only upon certain conditions embodied in a written permit which plaintiff signed and accepted. The permit is set forth in toto:

“AMERICAN OIL COMPANY No. 18602 NO SMOKING
12-29-1960
“PERMIT ISSUED TO Jerry Hulen & car
“In consideration of this Permit granted to me by the AMERICAN OIL COMPANY on my request to enter into or upon its premises or property, the undersigned waives, and does hereby release and discharge the AMERICAN OIL COMPANY, its officers and employees, from all liability to the undersigned, his employer, assigns and personal representatives, for all loss or damage, and any claim or demands therefor, on account of injury or other casualty to the person or property of or in the possession or control of the undersigned caused, whether negligently or otherwise, by said AMERICAN OIL COMPANY, its officers, agents, employees, licensees, or any of them, while the undersigned and/or such property is in or upon the said AMERICAN OIL COMPANY premises or property.
“AMERICAN OIL COMPANY Signature Jerry Hulen
“By J. H. Johnson Representing Insulation
Service,
Address Tulsa, Okla.
Person or Place to be Visited
or Purpose of Visit Procon
East Gate;”.

While the pleadings and briefs do not entirely clarify or fully explain plaintiff’s business upon defendant’s premises, it was revealed by the appellate oral argument that plaintiff was there in behalf of Insulation Service. Insulation Service is an organization which had a contract with defendant to perform certain services for defendant. Plaintiff, its employee or subcontractor, was engaged in the performance of those services. Plaintiff was neither an employee nor a customer of defendant.

Simply stated, the issue on appeal is this: Does the permit with its exculpatory clause operate as a bar to plaintiff’s cause of action? If it does, the judgment should be affirmed. If it does not, the cause should be remanded for a trial upon the merits of the controversy.

We believe it should first be determined if, except as to matters of practice and procedure, the issue should be decided under the laws of Illinois, where the accident occurred, the lex loci delicti, or under the laws of Missouri, where the suit was brought, the lex fori. We believe that the laws of Illinois control and govern. In Mitchell v. J. A. Tobin Const. Co., 236 Mo.App. 910, 159 S.W.2d 709, 711, Cave, J., speaking for this court, said: “It seems to be conceded that if plaintiff did not have a common-law cause of action in Kansas, where the tort was committed, then he cannot maintain such an action in Missouri. ‘No case under the lex loci, then no case under lex fori,”’ (citing cases). Our Supreme Court in Robinson v. Gaines, etc., 331 S.W.2d 653, 655, phrased the rule as follows: “Generally the law of the forum governs matters pertaining to the remedy and the procedure; the law of the place of the tort determines whether there is a tort as a legal consequence of the alleged conduct; * * *. We now take judicial notice of the public statutes and judicial decisions of a sister state when a pleading ‘relies upon the law of another state or contains allegations which show that the law of another state must be applied,’ ” (citing authorities).

On appeal appellant insists (1) the trial court erred in holding the exculpatory permit was (a) valid, and (b) a complete bar to plaintiff’s action; (2) the agreement to exonerate for future negligence is contrary to public policy, and (3) it was error to enter a judgment on the pleadings and deny plaintiff his day in court on both the questions of law and the issues of fact.

Some of the authorities relied upon by appellant have to do with exculpatory clauses in agreements between employers and employees and respecting public carriers. Goldberg, Secretary of Labor v. Whitaker House Cooperative, Inc. et al., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); United States v. Silk et al., 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757; Powell v. Union Pacific R. Co., 255 Mo. 420, 164 S.W. 628, 641. In our case there is no employer-employee relationship. As stated in 56 C. J.S. Master and Servant § 3(1), p. 45: “The relation of master and servant does not exist between an employer or contractee and the servants of an independent contractor, or between an independent contractor and the servant of a subcontractor, and he is not responsible as master, either to or for them.” The rule which applies to public carriers for hire is not applicable to our facts. Other cases cited by appellant are landlord-tenant cases where the exculpatory clause did not clearly and specifically exempt from negligence for the damage suffered. Meyer Jewelry Co. v. Professional Bldg. Co., Mo.App., 307 S.W.2d 517.

Appellant urges us to examine the the opinion in Valentin v. D. G. Swanson & Co., 25 Ill.App.2d 285, 167 N.E.2d 14. There an exculpatory clause in a lease was upheld and the judgment for a tenant who fell on a stairway was reversed with directions to deny judgment on the pleadings. The Illinois legislature thereafter (Ill.R.S., 1961, Chapter 80, Sec. 15a) voided such clauses in landlord-tenant leases and declared the same to be against public policy. However, such a statutory enactment is not, we think, authority for a conclusion that such clauses are against public policy in any type of case other than those of landlord and tenant. In fact, if any conclusion is drawn therefrom it should be just the opposite. To the same effect is the opinion by the Supreme Court of Illinois in Jackson v. First Nat. Bank of Lake Forest et al., 415 Ill. 453, 114 N.E.2d 721.

The following pertinent general statement is found in 17 C.J.S. Contracts § 262, pp. 644-645. Contracts: Agreements Exempting from Liability for Negligence:

“Contracts exempting from liability for negligence are not favored by the law; they are strictly construed against the party relying on them, and clear and explicit language in the contract is required to absolve a person from such liability.
“On the other hand, it has been said that the broad public policy of freedom of contract controls in determining the validity of contracts exempting from liability for negligence; so, not all such contracts are held to be against public policy, and it is said that one may contract for such exemption except where prohibited by statute.”

The appellate courts of Illinois, upon many occasions, have passed upon the validity and effectiveness of similar exculpatory clauses. In Russell, etc. v. Shell Oil Co., Inc., 339 Ill.App. 168, 89 N.E.2d 415, plaintiff was the employee of a third person who had contracted to make repairs on defendant’s property. While engaged upon this work plaintiff was injured and sued defendant, for the use of his employer, to recover workmen’s compensation benefits which had been paid by his employer. It was held the indemnity agreement entered into between defendant and plaintiff’s employer was valid, effective and defendant was not liable. Plaintiff (Ingram v. New York Central Railroad Co., 30 Ill.App.2d 455, 175 N.E.2d 129) took a lease from defendant to wreck and remove certain structures on defendant’s property. The court held that a clause in the bill of sale under which plaintiff and his wrecking company assumed all risk of personal injury was valid, not against public policy and since the complaint failed to allege any willful or wanton conduct by defendant, the motion to dismiss was properly sustained.

Prosser on Torts (1955) Chap. 10, Sec. 55, pp. 305-306, states: “There is no public policy which prevents the parties from contracting as they see fit. Thus one who accepts a gratuitous pass on a railway train, or enters into a lease or some other relation, may agree that there shall be no responsibility for negligence”. The Supreme Court of Massachusetts in Freeman v. United Fruit Co., 223 Mass. 300, 111 N.E. 789, is in accord. There a tailor wanted to go aboard defendant’s ship and deliver a uniform to a member of the crew. The company as a prerequisite to issuing a pass to plaintiff and permitting him to come aboard, required plaintiff to sign such an exculpatory clause. The court enforced this proviso as a valid defense to plaintiff’s claim of damages for injuries resulting from negligence on the part of one of defendant’s crew.

Although we have held that the Illinois law governs this case, we believe it is also the law in Missouri that such exculpatory clauses are not against public policy and are valid in this jurisdiction. Govero v. Standard Oil Co., 8 Cir., 192 F.2d 962, 964, concerned a service station lease by defendant to plaintiff which contained a clause exempting defendant from liability for “any loss, damage, injuries or other casualty”. We quote1 from the opinion by the Court of Appeals for the Eighth Circuit:

“The applicable law is that of Missouri. The plaintiff necessarily has the burden of demonstrating that the District Court erred in ruling that under Missouri law the covenant in suit barred his claim. See Western Casualty & Surety Co. v. Coleman, 8 Cir., 186 F.2d 40, 43 and cases cited. The plaintiff cites no Missouri case to support his contention that the covenant- was not a bar to his claim. He says that the District Court’s construction of the clause of the covenant in suit ‘does violence to all precepts of justice and the end result would be that no contract could be declared void as being against public policy.’
“But covenants or clauses such as that in suit are valid in Missouri, as this Court has recognized in Sinclair Refining Co. v. Stevens, 8 Cir., 123 F.2d 186, 192.”

This court in McKaig v. Kansas City Terminal Ry. Co., Mo.App., 355 S.W.2d 409, recently upheld the validity of an exculpatory clause contained in a railroad pass as a bar to plaintiff’s claim for damages resulting from defendant’s negligence.

One of appellant’s specific assignments is that “Agreements between employer and employee attempting to exonerate the employer from liability for future negligence * * * are void as against public policy”. As previously pointed out herein our particular agreement or permit was not one between an employer and an employee. It is also manifest under the pleadings that plaintiff was not defendant’s employee. The accident occurred on defendant’s private property and plaintiff’s entry thereon was conditioned by the exculpatory clause in the permit which he admittedly signed. There is no allegation of willful or wanton negligence. Such clauses are not against the public policy of Illinois or of Missouri. In our opinion it constitutes a good and sufficient defense to plaintiff’s petition and cause of action. The trial court entertained similar views. Defendant’s motion presented only a question of law and there were no fact issues posed, under which such legal defense might be overturned. The motion for summary judgment was therefore properly sustained.

The judgment is affirmed.

SPERRY, C, concurs.

PER CURIAM.

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

All concur.


author: HUNTER, Presiding Judge.

text:
    Esther WASHINGTON, Respondent, v. Frank EICKHOLT, d/b/a Safeway Cab Co., Appellant.
    No. 23559.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.

      Watson, Ess, Marshall & Enggas, Samuel J. Molby, Vincent E. Rawson, Kansas City, for appellant.
    Rubins, Kase & Rubins, Arthur J. Kase, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an appeal by defendant-appellant, Frank Eickholt, from a judgment in the sum of $5,500 for plaintiff-respondent, Esther Washington, for injuries suffered in an automobile collision on July 2, 1959, in Kansas City, Missouri.

Plaintiff, a forty-five year old woman, drove her automobile to the intersection of 111th Street and 71-Highway and stopped there for some time waiting for the red traffic light to change to green. Defendant’s employee driving his employer’s taxicab at a speed of between 25 and 35 miles per hour ran the taxicab into the rear end of plaintiff’s stationary vehicle knocking it across the intersection, causing the front seat to ram forward and slide back, injuring plaintiff. At the trial defendant’s counsel admitted liability and presented only the issue of damages.

On this appeal defendant raises two contentions : First, that Instruction No. 2, the damage instruction, omitted facts indispensable to the issues; and second, that the verdict and judgment are so grossly excessive as to indicate the amount was the result of passion and prejudice and was not supported by the evidence.

Instruction No. 2 reads as follows:

“The court instructs the jury that if you find in favor of plaintiff in estimating and determining the damages to be awarded the plaintiff you will take into consideration the nature and extent of all injuries, if any, which you believe from the evidence she has received as a direct result of the accident in question, all physical pain and disability, if any, which you believe from the evidence she has suffered, and all physical pain and disability, if any, which you believe from the evidence she will, with reasonable certainty, hereafter suffer as a direct result of such injuries, if any, and if your verdict be for her it will be in such an amount for damages as a whole, stated in one lump sum, as you believe from all the evidence will fairly and reasonably compensate her for her injuries, if any, so received.”

During the trial one of the plaintiff’s doctors, Dr. Multauf, testified that he had examined plaintiff for the first time on April 27, 1961, and that “she exhibited some signs of mild — what we call hypertrophic arthritic changes. That is a kind of wear and tear type, of, oh, changes in the bone. They were minimal, however, which are consistent with her age.” He further stated that while he didn’t know, the accident “could aggravate a mild arthritis” but that as to plaintiff’s arthritic condition “it is very, very minimal.” With leave of court plaintiff amended her petition to include damages for aggravation of pre-existing hyper-trophic osteo-arthritis. However, in submitting the damage issue in Instruction No. 2 she limited the submission to only those injuries “she has received as a direct result of the accident in question”. Additionally, defendant requested and the court gave Instruction No. 4 which reads:

“The Court instructs the jury that if you find and believe from the evidence that any part of the injuries or condition from which plaintiff claims to suffer and has suffered by reason of said automobile accident are due to previous disease or condition existing at the time of said accident, if you so find, then you will award to plaintiff no damages for such injuries or condition which you find are entirely attributable to conditions or disease existing prior to said accident. In the event that you find that any disease or condition of plaintiff, existing prior to said accident, if you so find, was aggravated by said accident, then you may award plaintiff damages for such aggravation.”

We find no merit in defendant’s contention that Instruction No. 2 is erroneous because it omitted all reference to a preexisting arthritic condition. If anyone was prejudiced by Instruction No. 2 it was plaintiff who limited the jury to awarding damages for injuries directly growing out of the accident and not for aggravation of preexisting conditions. Defendant cannot successfully complain because the instruction was unfavorable to plaintiff.

Defendant’s other contention of error requires a summary of the evidence concerning the extent of plaintiff’s injuries resulting from the accident. Defendant had plaintiff examined by a doctor of his choice but did not call that doctor as a witness or otherwise present any medical testimony. According to plaintiff’s evidence the hard impact of the collision threw her into contact with her car striking her chest and stomach principally. After her car was temporarily fixed enough for her to drive it she proceeded home arriving about midnight. She called her family physician, Dr. Haugh, who on seeing her the next morning ordered her to Wheatley Provident Hospital. There, her complaints were that she was very sore, her entire neck was stiff, and her stomach and back were particularly painful. While in the hospital she received constant treatment of bed rest, various medicines including codeine, “shots”, ice packs, heat treatments and electrical treatments for her back.

Dr. Haugh testified that he examined her in the hospital finding concussion; sprained neck; involvement of the cervical region; “the right hip and muscles of the right side were giving her trouble”; and lower back strain. She had pain fairly continuously while in the hospital, especially in the lower part of the sacroiliac region. She also had muscle spasm in that and other regions of her body. He prescribed a back support for her to wear except when in bed at night.

Upon her release from the hospital on July 8, 1959, she continued to receive medical treatment from Dr. Haugh averaging once or twice each week for a total of approximately 29 treatments as of August 26, 1960. She has supplemented this at home with hot packs, rubbing alcohol and hot baths. During all this time plaintiff continued to have pain especially in the sacroiliac region. After about three months she experienced recovery of her neck, head and stomach but not of her back. According to her physicians the injury to her back described as a “muscular ligamentous strain of the back involving the supportive structures and muscles and ligaments of the low back” is a permanent one and no further improvement of it is to be expected even by further treatment.

As a result of her accident plaintiff has continued to have pain and limitation of movement of her back. She has to wear her back support every day, taking it off only at bedtime. She can no longer perform all her housework. “It hurts bad” when she attempts to sweep, mop or do dishes and her husband has had to take over much of the housework. Her back “bothers” (pains) her “all the time * * * more when I get up and stir around.”

At the time of the accident plaintiff was on the second day of a two week vacation from the laundry where she was employed as a “folder”. On July 20th, she returned to her job. She does her work, principally folding clothes, but it causes her back to hurt and really bothers her. She has reported this to her employer, and has complained “a lot” and “very frequently” to some of her fellow workers that her back hurt her when she endeavored to work or to move about.

According to her husband she still complains about her back every day and every night. She doesn’t sleep well and early in the morning she awakens him saying “ ‘My back is hurting; get up; my back is hurting’. That is not my back, still I have to get up, sweeping and mopping, she can’t do none of that. I have to do all of it.” Her condition is getting no better.

At the commencement of the trial when asked what she did when the impact of the two cars occurred plaintiff momentarily shed tears as she endeavored to tell of her effort to see if her mother who was riding with her was hurt (apparently she wasn’t). The trial court immediately declared a recess. Defendant’s counsel moved for a mistrial. The trial judge overruled the motion explaining that in his judgment plaintiff had acted inadvertently as a natural expression of excitement and fear and not for the purpose of influencing the jury. Defendant, while acknowledging the trial judge’s right to exercise his discretion in the matter by refusing to declare a mistrial now. points to this incident as somewhat explanatory of what defendant terms an excessive verdict.

In reviewing the jury’s findings on a contention of excessiveness of the verdict it is the duty of the appellate court to consider the evidence of damages in the light most favorable to the plaintiff. In so doing we acknowledge that the amount of damages is primarily for the jury. It is that body which is charged with the function of finding, as a fact, what sum will fairly and reasonably compensate plaintiff for her injuries.

An appellate court properly may determine, as a matter of law, the maximum amount the evidence will support. It is well known that such question is not susceptible of determination by precise formula or with mathematical nicety. Consideration must be given, among others, to the nature and extent of the injury and disability, and whether or not it is permanent.

Both plaintiff and defendant have cited numerous cases suggesting they are sufficiently comparable to be of some aid. We have examined all of these cases carefully. Under the uniformity rule we obtain what aid we can from an examination of cases involving similar or fairly comparable injuries giving due consideration to any differences and to the changes in economic conditions, living costs and the purchasing power of the dollar since the time the particular verdict was rendered. In making any comparison we must remember that each case is to be carefully considered on its own facts, and that both individuals and injuries are not susceptible of being treated as though exactly like some other, if individual justice is to be done in each separate case.

The record presents the picture of a previously healthy, hard working woman free of any of her present injuries and with a life expectancy of 26 years. Without again summarizing her injuries we are reminded that in addition to all her pain and suffering of the past she has a substantial permanent and painful injury that will be with her from now on. Not only must she continue to bear the daily pain as she endeavors to work and move about but also the resulting disability including an inability to do many of the usual and fundamental things involved in housework which women customarily undertake.

The jury has made its findings. The trial court after due consideration has overruled defendant’s motion for a new trial. Upon our own review we are of the opinion that the verdict is within the evidence and not excessive as a matter of law. We are convinced it is not the result of passion or prejudice. It is our conclusion that the judgment should stand affirmed in its full amount. Accordingly, the judgment is affirmed.

All concur.


author: BROADDUS, Judge.

text:
    Paul BURNS, Respondent, v. John G. HALES et al., Appellants.
    No. 23598.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Frank L. Pulley, Cameron, for appellants.
    Melvin E. Griffin, Cameron, for respondent.
   BROADDUS, Judge.

Plaintiff, Paul Burns, filed suit against Dennis Hales on an alleged oral contract for overtime work and for transportation costs. Prior to the trial Mr. Hales died and the cause was defended by John G. Hales, et al., as executors of the estate. A jury being waived, the cause was tried to the court resulting in a judgment in plaintiff’s favor for $6,348 plus interest of $1,333.08 or a total of $7,681.08. The executors have appealed.

Plaintiff and Dennis Hales entered into two written contracts which provided that plaintiff was to operate and manage farms belonging to Mr. Hales and was to be paid $150 per month, was to be furnished a cow, a garden spot, a house in which to live, chicken feed, etc. The first contract was dated October 15, 1951, and provided that plaintiff was to begin work January 1, 1952. The second contract was dated December 23, 1955, and contained this provision: “This contract takes the place of a contract dated the 15th day of October, 1951. The old contract calls for a final settlement January 1, 1957, but this is to be extended to January 1, 1959. The old contract called for a base wage to the second party (Burns) of $150 per month but through an error this was increased to $160 per month.” (Italics ours)

Plaintiff offered evidence tending to show that at the time the first written contract was entered into between himself and Dennis Hales (now deceased) they orally agreed that a working day would be nine hours and that the plaintiff would be paid $1 per hour for overtime work and $1.50 per day for transportation costs in traveling from farm to farm in his car on each working day. The testimony also shows that plaintiff Burns was paid for overtime work for the year 1952, and at the end of that year the parties agreed that the overtime pay and the transportation costs would be paid at the end of the contract period. Plaintiff performed overtime work of at least two hours per day, and furnished his own transportation six days per week during the period beginning October 15, 1951, and ending March 15, 1958.

The testimony also disclosed that in 1953 Dennis Hales acknowledged the oral contract with and in the presence of Plaintiff to another employee, Jewell Wrex, and inquired of Wrex if he, Wrex, would like to let his overtime and transportation pay “ride the same way Paul (plaintiff) was going to do. He (deceased) said Paul was going to do it so he would have more at the end when it came time to settle up.”

Defendants contend that the trial court erred in receiving parol testimony which, they assert, tended to vary the terms of the written instruments, and also erred in finding that a separate oral contract was entered into between the parties.

The law is well settled that a collateral oral agreement may be entered into independent and apart from a written contract if it does not vary or alter the written contract. Bittner v. Crown Shoe Manufacturing Co., Mo.App., 340 S.W.2d 142; Bay v. Elmer, Mo.App., 237 S.W.2d 932; 20 Am. Jur., Evidence, Sec. 1140, p. 992.

We think it is clear from the evidence appearing in the transcript that the parties by their words and acts, both contemporaneous with and subsequent to the written contracts treated the matter of overtime working hours and transportation expenses as being separate and apart and collateral to the written contracts. The fact that the parties used the term “base wage” in the contract dated December 23, 1955, is a clear indication that they intended that additional compensation would be paid plaintiff for extra services and expenses.

We are of the opinion there was substantial evidence showing that the parties entered into a separate oral contract which did not alter or vary the terms of the written contracts. This being a court-tried case, we are enjoined by the statute from setting aside the judgment unless the same is “clearly erroneous.” Sec. 510.310 V.A.M.S., 1949. Certainly we would not be justified in so holding.

The judgment is affirmed.

All concur.


text:
    Fariel M. ROMIG, Appellant, v. Lloyd Walter ROMIG, Respondent.
    No. 23577.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Hull & Strong, Maryville, James C. Davidson, North Kansas City, for appellant.
    Dale, Potter & Flynn, Stanley I. Dale, St. Joseph, for respondent.
   BROADDUS, Judge.

This is an appeal from the decree of the Circuit Court of Worth County, entered on October 12, 1961, setting aside and deleting from the decree of divorce entered by said court on September 12, 1961, the award of alimony to plaintiff wife, in the sum of $200 per month.

On July 22, 1961, plaintiff filed her petition for divorce in which she alleged that she and defendant were married on April 12, 1957, and continued to live together thereafter as husband and wife until on or about the 17th day of July, 1961.

On August 14, 1961, defendant husband filed a motion to dismiss, which motion defendant withdrew when the cause was heard and entered his general appearance.

Prior to submitting the cause to the court on September 12, 1961, the parties entered into a “Property Agreement.” It contained the following:

“Whereas, the parties are desirous of settling their property rights they hereby mutually agree that: * * *
“6. As further consideration for this Agreement husband agrees to pay wife Two Hundred Dollars ($200.00) a month alimony until her death or until she remarries. In consideration of this alimony agreement wife agrees to release all of her homestead and rights she might have as surviving spouse of husband.”

After the execution of the Property Agreement (the same day the hearing was held) the attorneys for both parties appeared before the court and the wife and her two character witnesses testified. The wife identified the Property Agreement and the same was admitted in evidence without objection. At the conclusion of the evidence the court entered a decree of divorce to plaintiff. Those portions of the decree pertinent to this appeal are:

“The Court further finds that a property settlement contract in writing has been entered into between Plaintiff and Defendant, settling all property rights, and other claims whatsoever between them affecting each other, which said contract meets with the approval of this Court and is made a part of this decree.
“It is further Ordered, Adjudged and Decreed that Defendant pay to Plaintiff Two Hundred Dollars ($200.00) a month alimony. Said alimony is to commence on September 12, 1961 and is to be paid a month in advance; i. e. on September 12, 1961, and on or before the 12th day of each following month.”

Thereafter, on October 3, 1961, defendant’s present attorneys filed on his behalf a motion to vacate and set aside the decree of divorce. Said motion, among other things, alleged that:

“I
“Defendant has cause to believe and does believe that the Court was not properly advised in the premises, and had the Court been so advised, would not have entered its judgment of alimony to plaintiff in the amount of $200.-00 per month, but would have considered such amount unreasonable and oppressive under all of the conditions and circumstances.
“II
“Defendant has cause to believe and does believe that the Court was not aware of the fact that plaintiff had already received approximately $16,000.00 in cash from the joint funds of plaintiff and defendant, and that to award $200.00 per month alimony to plaintiff is both unreasonable and oppressive.”

This motion was heard on October 10, 1961. At that hearing it was made clear that prior to the execution of the Property Settlement plaintiff had withdrawn the sum of $16,000.00 from the joint account of plaintiff and defendant, and that this fact had not been brought to the attention of the court at the trial. It was also disclosed that the only thing defendant received under the agreement was his clothing. There was no real estate involved to make plaintiff’s release of her marital rights of any value.

The motion was taken under advisement until two days later when a decree was entered setting aside the original decree only as to the provision for alimony. The latter decree recited: “This decree being entered within thirty (30) days following the date of the decree of divorce on September 12, 1961.” Plaintiff filed her motion for new trial and the same being overruled this appeal followed.

Plaintiff asserts that “when a husband and wife contract with regard to their property and include the amount of alimony to be awarded the wife upon legal separation of divorce, and the terms of the agreement are approved by the Court and made a part of the decree, the provisions as to alimony are not subject to modification by the Court.”

In support of her position plaintiff relies upon the case of North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061. However, in that case the attempt to modify the judgment involved was made long after the term at which it was entered had expired.

Prior to the enactment of our Civil Code, which became effective on January 1, 1945, it was the established rule of law in this State that all judgments, decrees and other orders, however conclusive, were under the control of the court which pronounced them during the term at which they were rendered of record, and they could be set aside, vacated or annulled by that court. Woodward v. Woodward, 84 Mo.App. 328, 330. Under our present practice the period in which the court has control over its judgments is limited to 30 days after entry of judgment. Laws of Mo.1943, page 389, sect. 119 (V.A.M.S. § 510.370).

As we have stated the order of the court about which plaintiff complains was entered 30 days following the date of the decree of divorce. Thus the court had inherent jurisdiction to make the order and plaintiff cannot legally complain.

The judgment is affirmed.

All concur.


author: SPERRY, Commissioner.

text:
    STATE of Missouri, Respondent, v. Hugh GORHAM, Appellant.
    No. 23542.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    William B. Kelleher, St. Louis, for appellant.
    James T. Riley, Jefferson City, for respondent.
   SPERRY, Commissioner.

Defendant, Hugh Gorham, was charged with common assault, under the provisions of Section 559.220, RSMo 1959, V.A.M.S. A jury was waived and the case was tried to the court, under Supreme Court Rule 26.01, V.A.M.R. The court found defendant guilty as charged, and assessed his punishment at a fine of $100.00. This appeal followed.

Mr. Hogan was the complaining witness. He testified to the effect that his home was in the city of Florissant, in St. Louis County, Missouri, where he had been a member of the council; that, on Feb. 14, 1961, a committee of the Missouri House of Representatives held a hearing at the capítol, in Jefferson City, Missouri, on pending legislation affecting the cities of Floris-sant and Bridgeton; that a group of residents and officials of the two cities, including witness, attended the hearing; that, following the hearing, in the corridor, he encountered Mr. Mohan, who was a member of the council of Florissant and had attended the hearing as a member of a delegation advocating views on the proposed legislation contrary to the views of witness; that Mohan berated him because of the views he expressed to the committee; that they walked down the corridor until they were in front of the office of a member of the committee, where a group of the delegates had congregated and were standing; that defendant and others of that group made in-suiting remarks to Mr. Hogan, from time to time; that defendant would occasionally approach him and make a sarcastic remark; that, as Mohan was “standing up” to witness and making insulting remarks to him, defendant circled around in back of Mohan and aimed a kick at witness’ crotch; that witness ducked and the blow struck him on the inside of the left thigh causing an abrasion; that witness had previously opposed promotion of defendant’s relative as a member of the police department of Floris-sant; that, after the kicking, Mr. Koch, mayor of Florissant, put his arms around defendant and pushed and urged him away from witness; that Mohan said, “Now find someone that saw that”; that a man with whom witness was unacquainted talked to witness about the occurrence; that witness never made any aggressive move toward defendant; that, after the kicking, defendant again made a “lunge” toward him as though he intended striking him. Mr. Hogan identified pictures of his leg, taken the next day after the above occurrences. They showed a large dark abraded area high up, near the crotch, on the inside of his thigh.

Mr. Swantner, marshall of Bridgeton at the time of the alleged assault and at the time he testified, stated that he was present and saw and heard the disturbance; that he heard a man whom he believed to be from Florissant say “I am going to hit him in the mouth”; that he saw some one kick Mr. Hogan; that Hogan asked if anyone saw the kick and that Mohan said; “No, he never kicked you, you S.B. Try to find somebody that did”.

Mr. Buschard was with the delegation from Bridgeton but not a city official. He stated that he saw Mohan, Hogan, and Gorham, in the corridor of the Capitol; that there was a struggle or scuffle and mayor Koch moved in; that Gorham “kicked around the mayor”; that he kicked Mr. Hogan; and that Mr. Hogan never attempted to strike defendant.

Defendant admitted being present at the hearing and in the corridor thereafter, but denied kicking Mr. Hogan. The mayor and other city officials of Florissant were called by defendant. All admitted witnessing a disturbance but none saw defendant kick Hogan.

At the conclusion of the evidence the court, on its own motion and without any request, gave two instructions dealing chiefly with the weight of testimony, credibility of witnesses, presumption of innocence and reasonable doubt. Defendant made no request for findings of fact or conclusions of law but objected to the court’s giving the “three instructions of the court which are not numbered”.

In his motion for new trial defendant presented but one point: that the court erred in failing to give an instruction “dealing with and defining the defense of self-defense, and in failing to declare that the defense of self-defense was the law applicable to this cause * * *

Defendant filed no brief. We will consider formal parts of the record and valid assignment of error made in the motion for new trial. State v. Kaufman, (Mo.App.) 308 S.W.2d 333, 335; Supreme Court Rule 28.02, and note.

The information is sufficient. The instructions properly declare the law in so far as the law is stated. There was no evidence in the case tending to prove that defendant acted in self-defense. All of the positive testimony concerning Mr. Hogan’s actions and conduct is to the effect that he made no effort to strike or assault defendant, or any other person; and defendant’s own testimony was to the effect that he did not kick or attempt to attack Hogan, not that he did so in self-defense. Defendant’s other witness stated that they did not see defendant kick Hogan and none said that Hogan attempted to commit an assault by word or action. The issue of self-defense was not in the case. The sole issue was whether or not defendant kicked Hogan; and the court, with ample evidence to support its finding, found defendant guilty. It was not error for the court to fail to instruct, or to declare the law on self-defense. It was only necessary to instruct on the issues presented by the evidence in the case. State v. Dyer, 314 Mo. 608, 285 S.W. 101, 102; 23A. C.J.S. Criminal Law § 1190, page 476.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.