author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant.
    No. 50186.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.

      Dale Beal, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Clarence Bradley Mitchell, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   STORCKMAN, Presiding Judge.

This is an appeal from a conviction of robbery in the first degree. The court found that the defendant had been convicted of a prior felony and assessed punishment at twenty years in the penitentiary. The defendant’s motion for new trial was overruled and he was sentenced in accordance with the punishment assessed. The defendant was ably represented in the trial court by appointed counsel, Mr. Dale Beal, who also briefed the appeal in this court.

The evidence favorable to the verdict tends to prove that on June 7, 1962, at about 1 a. m., two men, who were later identified as the defendant and Jack Lamphere, entered the Club Bar located at 11 East 31st Street in Kansas City as the bartender Albert Grotzinger, alone in the Club, was sweeping the floor preparing to go home. The defendant stuck a gun into Mr. Grot-zinger’s ribs and required him to open the cash register. The defendant and Lamphere took the cash, two electric razors, and two fifths of Jim Beam whiskey. The robbers then put the bartender in a rest room and braced the door shut with a chair. The bartender forced the door open and called the police. At the trial he positively identified the defendant as the robber who held the gun against him.

Lamphere and two women companions, Joanna Wallace and Charlotte Martin, were in Kansas City. The defsnda»fc was captured in Denver, Colorado, and returned to Kansas City on June 29, 1962. The defendant admitted to the officer who brought him back from Denver that he had registered at a certain motel in Kansas City under the name of Walter Johnson. He was accompanied by Lam-pifére and the two women. He also identified the registration card as filled out and signed by him. Mrs. Wallace testified that she and Charlotte Martin waited outside in an automobile while the defendant and Lamphere entered the Club Bar. When the men returned, the defendant had a revolver in his belt and got into the front seat with the two women. Charlotte Martin drove the automobile. Lamphere got into the rear seat and crouched out of sight on the floorboards of the automobile as they drove away. The defendant did not testify, but put on a police officer who testified regarding the robbery report and statement given the police by the bartender. Other matters will be referred to in connection with the questions presented.

The original information was filed on July 6, 1962, and on July 9, 1962, another attorney was appointed to represent the defendant, but the record does not show when or how he got out of the case. Present counsel was appointed on February 28, 1963, and on April 4, 1963, he filed a motion for a ninety-day continuance which the court overruled. In general, the grounds were that unfavorable newspaper publicity had made it impossible for the defendant to obtain a fair and impartial jury for the trial of the case, that defendant’s counsel had been notified on March 21, 1963, that five additional witnesses would be endorsed on the information by the state, that defendant’s counsel did not know definitely until April 1 that this case would be tried before another one on the docket, that the state intended to amend the information so as to proceed under the Habitual Criminal Act, that counsel for the defendant being en-. gaged chiefly in civil practice did not have-sufficient time to prepare the criminal case for trial, and that he had been unable to contact some of the the witnesses endorsed on the information although he had made a diligent effort to do so.

An application for a continuance in a criminal case is addressed to the sound discretion of the trial court and the appellate court will not interfere unless it clearly appears that such discretion has been' abused. State v. Scott, Mo., 338 S.W.2d 873, 876 [4] ; State v. Le Beau, Mo., 306 S.W.2d 482, 486 [5]. The defendant offered in evidence about 29 clippings from Kansas City newspapers dealing with this and other offenses with which the defendant had been charged. Most of the articles had been published in June and July 1962, which was about ten months prior to the trial.

What constitutes unusual or extraordinary circumstances sufficient to entitle the accused to a continuance on the ground of excitement and prejudice against the accused is ordinarily a question addressed to the sound discretion of the trial court. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 111-113 [2], See also 68 A.L.R.2d 540. Any doubt about the trial court’s ruling is dissipated by the record of the examination of the jury panel on voir dire. The court excused veniremen about whom there was the slightest doubt, and no difficulty was encountered in selecting a qualified jury.

The prosecutor in a criminal case should not delay unnecessarily in endorsing the names of witnesses on the information or in offering an amended information for filing, but the trial court has a wide discretion in determining whether the prosecutor has done so and has thereby put the defendant to a disadvantage and deprived him of a fair trial. State v. Thost, Mo., 328 S.W.2d 36, 38 [4].

The traditional duty of members of the bar to accept appointment to represent indigent defendants in criminal cases requires mutual cooperation between the court and counsel. The record does not show any abuse of this practice or that the rights of the defendant were prejudiced. The defendant was effectively represented by his court-appointed counsel. The court did not err in refusing to sustain the motion for a continuance. State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 758 [8]; State v. Bockman, Mo., 251 S.W.2d 607, 608 [4].

The defendant prior to trial filed a motion to suppress articles held as evidence consisting of two bottles of Jim Beam whiskey and two electric razors which were found in the motel room where the defendant had registered as Walter Johnson. No evidence was offered when the motion was heard and it was overruled. At the trial the whiskey and razors were identified as articles taken in the robbery of the Club Bar. Before they were offered, the defendant in chambers again objected to their admission in evidence and was again overruled. The ground of objection was that their seizure was in violation of defendant’s constitutional rights under Art. 1, § 15, of the Missouri Constitution, V.A.M.S., and Amendment IV of the United States Constitution, in that the articles were not taken from the person of the defendant but from others who relinquished them because of fear and not voluntarily; that they were not obtained as an incident of a lawful arrest and were not in plain sight but searched for and seized without a valid search warrant. The state’s evidence showed that the defendant and his companions arrived at the motel on-June 6 and the rent was paid through 7. When police officers went to the motel on June 8, Mrs. Joanna Wallace was the only person present and she was arrested. The defendant and his other companions, Jack Lam-phere and Charlotte Martin, never returned to the motel.

The evidence is uncontradicted that the articles sought to be suppressed were found on a dresser top in plain view and were not located by means of a search. See State v. Reagan, Mo., 328 S.W.2d 26, 28 [3] There is no evidence that anyone was put in fear or coerced by the seizure. The defendant was in flight at the time and there is no showing or contention that the motel room was his abode when the police took possession of the articles. The officers entered the room where the articles were found by means of a key obtained from the person in charge of the motel. It is not contended that the arrest of Mrs. Wallace in connection with the robbery was unlawful. The police officers were on the premises lawfully and had the right to take possession of articles in the motel room which had an evidentiary value. State v. Redding, Mo., 357 S.W.2d 103, 107 [5]; State v. Brookshire, Mo., 353 S.W.2d 681, 684-685 [9]. The fact that the officers did not take possession of the articles at once and tag them as evidence is of no consequence; they were immediately observable and were not discovered by means of a later search. The police simply waited around to see if the defendant would return which he did not.

The guaranty against unreasonable search and seizure is a personal one and, since it appears that the defendant had no possessory rights either in the premises or the personal property at the time the articles were taken by the police officers, the seizure was not unlawful. State v. Cantrell, Mo., 310 S.W.2d 866, 870 [9]; State v. Green, Mo., 292 S.W.2d 283, 286 [1]; State v. Egan, Mo.App., 272 S.W.2d 719, 724 [6]; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743, 745 [3]. There is no basis for the claim that the defendant’s constitutional rights were violated and the court did not err in overruling the motion to suppress and admitting the articles in evidence.

The defendant’s motion for inspection under S.Ct. Rule 25.19, V.A.M.R., of documents and papers in the possession of the police department and the prosecuting attorney’s office, filed prior to trial, was also overruled. The request was “to permit the defendant to inspect and copy all of the books, papers and documents of the Police Department of Kansas City, Missouri, and papers retained by the Prosecuting Attorney’s office pertaining to the robbery of the Club Bar, 11 East 31st Street, Kansas City, Jackson County, Missouri, involving one Albert P. Grotzinger, and especially the offense report of June 7, 1962, statement of Albert P. Grotzinger, and any and all records or statements pertaining to said robbery for the reason that they are necessary and contain conflicting information which is vital to the defense of this defendant.” The motion alleged that the defendant was without funds to take depositions and that inspection should be allowed as in civil cases to obtain information that “might lead to the discovery of material evidence”.

Rule 25.19 authorizing the issuance of a subpoena duces tecum for the production of books, papers, documents or .other objects is not a rule of discovery; its purpose is to enforce the production of documents or objects at the trial which contain evidence material and relevant to the issues, and the court may direct the production and inspection of the designated documents or objects before the court prior to trial or their being offered in evidence if by doing so the trial of the case will be expedited. State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85, 89 [1]; State v. Kelton, Mo., 299 S.W.2d 493, 497 [10]. Except for the assertion that the application is made pursuant to Rule 25.19, the motion bears little resemblance to what is contemplated by the rule.

Regardless of how the motion is treated, it could not be effective as to any documents other than the offense report and the statement of Mr. Grotzinger, and these were produced at the trial by a police officer pursuant to a subpoena by the defendant. The state made no objection to testimony of the witness regarding the contents of these documents. On this record it appears that the defendant could not have been prejudiced by the ruling. In the absence of the issuance of a subpoena duces tecum under Rule 25.19 and a showing that the documents designated therein contained material evidence and that the trial of the case would be expedited by the production and inspection of the documents before trial, the court did not err in overruling the defendant’s motion for inspection. State v. Redding, Mo., 357 S.W.2d 103, 109 [17].

The defendant’s final contention is that the court erred in refusing to provide the defendant with a converse robbery instruction and in refusing to give and read to the jury converse instructions 6-A and 6-B offered by the defendant. By its very nature, a converse instruction is not a part of the law of the case on which the court must instruct whether requested or not. Hence, if a defendant wants a converse instruction given, he must formulate and offer a proper one. State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596, 597 [1].

The dissenting opinion in Boyd, 193 S.W.2d 598, 601, reviews the somewhat erratic history of converse instructions in criminal cases. Nevertheless, the rule now seems established that a defendant is ordinarily entitled to have given a correct instruction submitting the converse of the state’s main instruction; but, if the given instructions fully and fairly cover the same subject matter contained in defendant’s converse instruction, it is not prejudicial error to refuse the instruction offered. State v. Taylor, 356 Mo. 1216, 205 S.W. 2d 734, 737 [8]; State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596, 597 [1]; State v. Chevlin, Mo., 284 S.W.2d 563, 567 [11]; State v. McWilliams, Mo., 331 S.W.2d 610, 613 [6].

In State v. Boyd, an opinion by the court en banc, and in State v. Taylor, given instructions fully and fairly covered the subject, matter and the refusal of converse instructions was held not to be reversible error. In State v. Chevlin, the refusal to give defendant’s requested converse instruction “based on appellant’s theory of the case” was held to he reversible error. In State v. McWilliams, the converse instruction offered covered the element of intent to cheat or defraud. The opinion states that the “instructions given by the court may have abstractly covered the subject of the intent but the defendant was entitled to a factual, affirmative converse” hypothesis not found in the instruction given, and the judgment was reversed on that ground. 331 S.W.2d 613 [7],

Given instruction 2 covered the essential elements of the state’s case and concluded “if such be your finding, then you will find the defendant guilty of Robbery, First Degree, and so find in your verdict. And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Robbery, First Degree.” Given instruction 3 told the jury that the defendant was entitled to an acquittal unless the evidence in the case taken as a whole satisfied the jury of defendant’s guilt beyond a reasonable doubt and that ■ if they had a reasonable doubt as to the defendant’s guilt they should acquit him.

Refused instruction 6-A in substance told the jury that they must find from the evidence beyond a reasonable doubt “that the money and goods, or either, alleged in the information to have been taken by defendant, were the property of Albert P. Grotzinger or under his supervision or control to hold or protect for another” and unless they so found, the jury must return a verdict of not guilty. Instruction 6-B told the jury that they must acquit the defendant unless they found the facts to be as set out in the instruction.

This is not a case in which the defendant put forward a theory of defense and asked for an instruction in keeping with it as in Chevlin and McWilliams. The defendant’s defense was solely an attack upon the credibility of the state’s case. No issue was presented or a theory developed by the evidence as to the ownership of the stolen property contrary to the state’s evidence. Refused instruction 6-A referred to the information rather than the evidence for a description of the property taken. Also it tended to be misleading and confusing in that it dealt solely with title to the stolen property and introduced elements of Mr. Grotzinger’s “supervision or control to hold or protect” the property “for another” which went beyond the narrow confines of the evidence in this regard. For these reasons it was not error to refuse the instruction.

Instruction 6-B directed the jury to acquit the defendant unless it found facts which were practically a restatement of the facts recited in given instruction 2. The facts were not conversely stated and the direction added nothing to those given in instructions 2 and 3. Under the authority of Boyd and the other cases above cited, it was not prejudicial error to refuse instruction 6-B.

We have considered all of the specifications of error presented for review and find them to be without merit. The defendant was present and represented throughout the trial including his allocution and sentencing. The court and counsel extended themselves in affording the defendant a fair trial.

We have examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be in proper form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner. PER CURIAM:

license: Public Domain

text:
    Pleas CHANDLER, Plaintiff (Respondent), v. Elmer MUELLER, Defendant (Appellant).
    No. 49940.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.
    George E. Lee, St. Louis, for appellant, Carter, Bull, Baer, Presberg, Lee & Stan-ard, St. Louis, of counsel.
    Joseph J. Hanses, Bransford & Floyd, Clayton, for respondent.
   BARRETT, Commissioner.

In this action for $50,000 damages for personal injuries a jury returned a verdict in favor of the defendant. The plaintiff was granted a new trial on the ground that the court had erred in giving the jury instruction 11 and the defendant has appealed. The sole question upon the appeal is whether for any one of several reasons instruction 11 on the plaintiff’s contributory negligence was prejudicially erroneous.

The background of the defendant’s claim and submission of the plaintiff’s contributory negligence was this: On March 17, 1960, about 4 o’clock in the afternoon, the plaintiff, Pleas Chandler, was driving a 1959 Plymouth automobile in a southerly direction on Etzel Avenue, in University City, when it was involved in a collision with the defendant Elmer Mueller’s 1959 Oldsmobile as it traveled in a northerly direction. Etzel Avenue is a four-lane street through a residential section and in the area where the parties were traveling the roadway may be described as an elongated S. There was no marked center line but the essentially meritorious and sharply controverted issue upon the trial of the cause was which of the parties, in the language of the plaintiff’s principal instruction, had failed “to operate his said automobile to the right of the center” of the street. The only immediate eyewitnesses were the parties and upon the essential issue there was a direct conflict in their testimony. The defendant Mueller claimed that as he traveled north an automobile parked at the east curb pulled out ahead of him, met and passed Chandler’s Plymouth. There was also an automobile parked on the west side of the street and, according to Mueller, as the vehicle ahead of him proceeded up the street the plaintiff Chandler in turning out to go around the automobile parked at the west curb traveled across the center line into his Oldsmobile. On the other hand, Chandler said that as he traveled south at a speed of 15 miles an hour he saw Mueller approaching from the opposite direction, swerving back and forth across the street at a speed of 45 miles an hour, and stopped his Plymouth alongside the vehicle parked at the west curb. And, at that moment, he said Mueller drove “clear over on my side of the road.”

Mueller’s hypothesis and submission of Chandler’s contributory negligence was that he had failed to keep a proper lookout; specifically, in the language of instruction 11, that he knew or should have known that there was danger of a collision “and if you further find that plaintiff did fail to exercise the highest degree of care to keep a careful and vigilant watch and lookout ahead, and if you further find that if plaintiff had kept such watch and lookout he could have avoided the collision and that his failure to do so was negligent.” It must be carefully noted that Mueller does not claim that during the entire time the vehicles were meeting and approaching the parked automobile and the point of collision Chandler failed to maintain a lookout. To specifically illustrate, the appellant Mueller says “(i)nstruction 11 is not erroneous in permitting the jury to find that as plaintiff approached the rear of the parked automobile he saw or could have seen defendant’s car approaching and also in authorizing the jury to find that plaintiff failed to keep a proper lookout.” The circumstances in general are set forth by the appellant and it is said, and this is the crux of the case, that “The jury may well have determined that the plaintiff did see the defendant’s automobile as he approached the parked car (as he said he did) but that he thereafter failed to maintain that constant lookout ahead as to all conditions existing on the street at that time and failed to take note of the evident danger which vigilant watch would have revealed.” (Emphasis supplied). In short, it is admitted that as Chandler approached the automobile parked at the west curb he was maintaining a lookout and saw the defendant Mueller approaching but “thereafter” (meaning, presumably, after he was alongside the parked automobile) failed to maintain a lookout and therefore could reasonably be found guilty of contributory negligence.

The defendant had no direct proof of Chandler’s failure to maintain a lookout but he urges that the fact is a fair and permissible inference “from the attending surroundings and circumstances.” See v. Kelly, (Mo.App.) 363 S.W.2d 213, 216. The difficulty with the appellant’s position is that of necessity he must rely on Chandler’s testimony and in so far as it bears on this important issue these are the relevant questions and answers on both direct and cross-examination:

“Q. Now when you first saw Mr. Mueller’s car, approximately where was it in relation to Etzel Avenue?
“A. When he come off of Olive Street Road, he whirled around that street. * * *
“Q. Now you saw him just as he turned onto Etzel from Olive Street Road?
“A. That’s right.
ij: ‡
“Q. Before you stopped (alongside the parked automobile), when you first saw Mr. Mueller’s car, were you still in that same position or back a little distance from the parked car?
“A. I was a little bit back. * * *
“Q. How fast would you estimate Mr. Mueller’s car was going when he hit you?
“A. Oh, he was going about 45 miles an hour, because he knocked me back.
“Q. In other words, he hadn’t slowed down any?
“A. It looked like he got faster, the closer he got to me.
******
“Q. * * * Show the jury approximately where your car was when you were struck.
“A. Mr. Mueller came off of Olive Street Road. He come right on down, kept whirling and turning, so this car right here was parked right here against this curb. * * * I didn’t have to pull out, because there’s plenty of room, and he had plenty of room, so when I got along here (indicating), he was coming so fast until I blowed my horn. I was blowing my horn when he hit me.
* * * * * *
“A. When he come off Olive Street Road, he was swerving, going this way and that way. When I seen he was getting close to me, I went to blowing for him to see, to make him open up. He wouldn’t, though. He was drinking. He just kept straight at me.
* * * ifc * *
“Q. When you were going toward this parked car, did you say you saw Mr. Mueller’s car swerving back and forth across that street ahead of you?
“A. When I got even with that parked car, Mr. Mueller come straight at me.
******
“Q. In other words, you passed this parked car, you stopped and you were hit, is that it?
“A. When I was down to the parked car, I slowed down and when I got to the parked car I stopped still and Mr. Mueller came around; he came just straight after me, and I just stayed there and he just hit me.
“Q. What I’m trying to get clear in my mind, why did you stop alongside the parked car? Why didn’t you continue and pull out of the way over to the right curb ?
“A. I thought he would pull over. I didn’t think he would run into me. I didn’t think he would run into that car.
“Q. You stopped because you thought there was a danger he was going to hit you, did you not?
“A. I stopped because he didn’t get over.”

It is not a fair, reasonable or permissible inference from this testimony that plaintiff Chandler at any time, certainly not after approaching the parked automobile and the point of collision, failed to keep or maintain a proper lookout and as of course it was prejudicial error to give an instruction submitting that hypothesis as a ground of contributory negligence thus defeating the plaintiff’s right of recovery, Dawley v. Hoy, (Mo.) 341 S.W.2d 111, 116. Since the unsupported instruction was prejudi-cially erroneous the court properly granted plaintiff a new trial and the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant.
    No. 49944.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.
    W. A. Brookshire, appellant pro se.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty.' Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

On January 8,1962, this court affirmed the judgment whereby, after trial by jury, appellant was sentenced to imprisonment for a term of three years for manslaughter. State v. Brookshire, Mo., 353 S.W.2d 681. On July 13, 1962, appellant filed in the Circuit Court of Cole County a motion pursuant to Supreme Court Rule 27.26, V.A.M.R., to vacate that sentence and judgment, and he has now appealed from the judgment of that court overruling his motion.

The hearing on this appeal was set for January 16, 1964, but on January 15 appellant filed in this court what he termed “Appellant’s Motion to Remand or in the Alternative to Permit an Amendment and to Permit a Hearing on Appellant’s Motion.” In this document appellant made certain allegations, somewhat unrelated to the merits of the pending appeal, pertaining to an “amended jurisdictional statement” prepared by him for use in an appeal to the United States Supreme Court. He also asserted that the trial judge had disqualified himself in all cases in which appellant was a party and had no “jurisdiction” to rule on the motion filed pursuant to Rule 27.26, and for that reason “this court does not have jurisdiction” of this appeal. He asserted that “the proper order for this court to make would be to remand [this cause] to the Cole County Circuit Court.” However, he then states that “time is of the essence,” and for that reason he prays that this court “make an order permitting the appellant to amend his motion by the amended jurisdictional statement prepared for the Supreme Court of the United States, and to extend the time for appellant to prepare and file a brief.” On January 16, this appeal was submitted to this court on the brief filed by the State of Missouri, and appellant was granted leave to file a brief within, thirty days, which he has done.

The file in this case contains no order of disqualification of the trial judge, and there is no petition for disqualification. See Civil Rule 51.03, V.A.M.R. In any event, appellant waives any challenge to the qualification of the trial judge by his request that this court rule on this appeal.

No facts are set forth why the “amended jurisdictional statement” is material to any issue presented by the motion, and as an appellate court we take the record as ruled on by the trial court. In addition, the disposition of this appeal, for the reasons subsequently set forth, makes any issue in respect to this proposed amendment of no merit.

On February 5, 1964, the Attorney General filed in this court a motion to dismiss this appeal on the ground that the cause is moot. Attached to the motion is a certified copy of an order of unconditional commutation executed by the Lieutenant Governor of Missouri, the then acting governor, dated October 22, 1963, wherein the above referred to sentence of three years was commuted “to a term ending November 29, 1963.” A copy of this motion was sent to appellant, and he has filed a lengthy and argumentative motion to strike the motion of the Attorney General. Appellant’s motion consists primarily of an attack on the motives of those who brought about the commutation of the three year sentence and a rambling narrative of his difficulties with prison officials during confinement.

This court has held that “for the purpose of considering the moot character of a question before us” it has the “power to notice facts outside the record.” State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W. 2d 8, 10; State ex rel. Myers v. Shinnick, Mo., 19 S.W.2d 676. There can he no question hut that appellant has been unconditionally discharged from the above referred ic three year sentence. He admits this in his motion to strike. He is not now and has not since November 29,' 1^63, been “in custody under [that]. sentence.”

Supreme Court Rule 2726, V.A.M.R.,. in its parts material to this case, is as follows :

“A prisoner in custody under sentence and claiming a right to be released on the'ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court-which imposed such sentence to vacate, set aside or correct the same. * * * ”

It thus appears that the relief authorized by the rule is limited to a “prisoner in custody under sentence” who (1) claims a right to be released from the custody imposed by reason of that sentence, or (2) who claims to have a right to have the sentence reduced on the ground that “such sentence was in excess of the maximum sentence authorized by law.” Appellant’s attack is against the sentence in its entirety, and his claim is that he is entitled to release from custody imposed by reason of the three year sentence. However, he has been unconditionally released therefrom, and for that reason he has already received all of the relief afforded him by reason of Rule 27.26.

We have found no previous case of this court expressly ruling the issue of whether an appeal, under the factual situation of this case, is moot, and if so what disposition of a pending appeal should be made. However, it has been stated that Supreme Court Rule 27.26 is in substance the same as 28 U.S.C.A. § 2255 relating to judgments of federal courts, State v. Thompson, Mo., 324 S.W.2d 133, and the uniform rule in the federal courts is that the remedy afforded by the federal statute is available “only by an accused who is in custody under a sentence of the court.” 24 C.J.S. Criminal Law § 1606(6), p. 687; Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963; Black v. United States, 9 Cir., 269 F.2d 38, certiorari denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357. Also, if while an appeal is pending from the judgment of the trial court denying relief under a motion filed pursuant to 28 U.S.C.A. § 2255, the prisoner is unconditionally released from custody under the sentence which is the subject of the motion, the appeal is moot and should be dismissed. Williams v. United States, 9 Cir., 261 F.2d 224, certiorari denied, 358 U.S. 942, 79 S.Ct. 349, 3 L.Ed.2d 349; United States v. Brilliant, 2 Cir., 274 F.2d 618, certiorari denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (citing Weber v. Squier, 9 Cir., 124 F.2d 618; 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209); and Jamison v. United States, 6 Cir., 279 F.2d 892. (In this latter case the judgment of the trial court was affirmed because the appeal was moot instead of dismissing the appeal).

In view of the fact that appellant is not, and has not since November 29, 1963, been in custody by reason of the judgment and sentence for three years imprisonment, all issues on this appeal from the judgment denying appellant’s motion filed pursuant to Rule 27.26 are moot. We note, however, that this result does not necessarily follow when the appeal is from the judgment of conviction on its merits. See State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061, 138 A.L.R. 1154.

The appeal is dismissed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: PRITCHARD, Commissioner. PER. CURIAM:

text:
    SOUTHWEST DRAYAGE COMPANY, Inc., Respondent, v. CRAWFORD MOVING VANS, INC., a corporation, and James Crawford, Appellants.
    No. 50085.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.

      Riddle, O’Herin & Newberry, Malden, for defendants-appellants.
    Thompson, Walther & Shewmaker, Harold B. Bamburg, St. Louis, for plaintiff-respondent.
   PRITCHARD, Commissioner.

In this court-tried case, plaintiff was successful in establishing that a joint adventure (based upon an alleged contract therefor) existed between the parties for moving the Federal Records Center from 1724 Locust Street to its new location at 111 West Winnebago Avenue, in St. Louis, Missouri. The decree declaring that the joint adventure did exist also ordered that an accounting be had of the profits derived by defendants in the enterprise (defendants, with another company, had bid upon a part of the moving job and completed it to the exclusion of plaintiff). From the final judgment, after the accounting was had by a referee, in the amount of $26,325.34 (including $728.62 costs) the defendants have perfected this appeal.

The evidence which is essential to a determination of this case, and which concerns the relations and dealings of the parties, is as follows: The plaintiff, Southwest Drayage Company, Inc. (hereinafter called “Southwest”), is a family corporation engaged in a local drayage business in St. Louis, Missouri. Its officers are Eugene William Ferguson, Sr., president; Mrs. Eugene William Ferguson, Sr., vice-president; and Eugene William Ferguson, Jr. (hereinafter called “Gene”), is the secretary-treasurer. Defendant Crawford Moving Vans, Inc. (hereinafter called “Crawford Company”), is also a family corporation engaged in the moving business in Malden, Missouri, and defendant, James Crawford (hereinafter called “James”) is its vice-president. The two corporations in 1953 had participated in a records center moving job with a third company, the Gerald Moving Company.

In February, 1961, Gene was contacted by James in St. Louis with a proposal that the two companies bid upon various moving jobs on a partnership basis. It may have been that the General Services Administration (hereinafter called “GSA”) moving job of the Federal Records Center was mentioned at that time, but in any event about March 6, 1961, Southwest received from GSA an invitation to bid on the moving job numbered GS 06 T 44. On March 14, 1961, Gene and James had a meeting concerning the job, and on the next two days they inspected the job in the company of one Henry Classe. Thereafter, up to April 10, Gene and James worked closely together in figuring the costs and the various materials and available equipment needed for the job. About March 28, 1961, there was another meeting of Gene and James, with Mr. Ferguson, Sr., Mr. Classe and a Mr. Dumont (an insurance agent) also present. At that time the parties discussed the job further, and cast about in the group for ideas concerning it. Financing was not discussed at that time, and Gene was unaware of the problems involved in the procuring of a performance bond. On April 1, 1961, the same parties, except Mr. Du-mont, were together and it was described exactly what Gene and James had figured as being the cost of the moving job, and they wanted to sit down and figure what their bid price was going to be — how much profit they thought they “could put in there and still get the bid.” Each person present then wrote down on a piece of paper a price, the average of which was $196,000.

On April 3, 1961, a written joint adventure agreement was made up with the two companies as parties, but which was signed by Gene, James, Mr. Ferguson, Sr., and Albert B. Crawford (the brother of James). The writing specified that the agreement was “for the sole purpose of bidding and the movement of the GSA Federal Records Center” from and to the addresses above mentioned, on “Invitation No. GS 06 T 44” ; and that the parties were to share equally in responsibilities, profits and losses, and also any expenses accumulated while preparing the bid. No bid price was mentioned in the written contract. On this same day Gene and James drove to Kansas City, Missouri, with Mr. Classe and in his automobile, for the purpose of placing the bid of the two companies for the GSA moving job. The next morning, April 4, Mr. Classe refused to sign personally the written joint adventure agreement which had been prepared for his signature. Then the bid was completed and turned in to the GSA, and before the bids were opened, Gene and James decided to increase it by $20,000 (to $226,987.13) which was done. When the bids were opened, it was discovered that the Person Moving and Storage Company was the low bidder and the instant parties were second. About a week after-wards, during which time the parties, including Mr. Classe, discussed the possibility of their still being able to get the job' by reason of the Person Company being unable to procure a performance bond, GSA notified Gene that the joint adventure (Southwest and Crawford Company) was being considered for the Government Contract No. GS 06 T 44. From then on up to May 1, 1961, Gene and James each made various attempts to procure a performance bond. At that time they learned that Person Company’s contract had been thrown out, and by letter dated May 2, 1961, to both Gene 'and James, GSA notified them that all bids on Invitation No. GS 06 T 44 had been rejected, but that the Government in the near future would advertise invitations for the moving of records and equipment and the dismantling of the shelving. Both men were alerted to the new invitations which would be issued so that they would have an opportunity to bid on either or both of the jobs as divided.

On May 4, 1961, Gene and James had a meeting with Timothy Person at which a discussion was had concerning a joint adventure among the three of them, but financial arrangements were then not discussed. These three had another meeting about a week and a half later at which the mechanics of handling the moving job and a partnership agreement among the three were discussed. A third meeting of the three, at which the partnership agreement was supposed to be drawn up and presented, was never had. At some time in this interim GSA again sought bids covering the same moving job which was then divided into two parts: Invitations for Bids No. GS 06 T 52 (for moving of records) and No. GS 06 T 53 (for dismantling and crating of shelves). Both invitations had closing dates of May 24, 1961.

Gene and James had another conference on May 15 during which James asked Gene what he thought should be the bid price, and Gene told him, “I think we should get the bond first and then discuss the price-” It was decided that Gene would be the person to procure the bond for their new joint adventure on the new invitation. Gene was going to go out with the financial statements of both the parties and try to get the bond. On the following day Gene contacted Mr. Henry Classe concerning a bond, and Mr. Classe on May 18, 1961, obtained a commitment letter for such bond from a Mr. John Glennon, which ran to Southwest and Mr. Classe and did not include Crawford Company because (as Gene testified) that company’s financial statement was not in good form and there was not sufficient time to verify it.

Apparently, all during this time both Gene and James were trying to procure a bond. On May 19, James telephoned Gene and told him he had obtained a bond from Continental Casualty Company conditioned upon having $25,000 in cash; James said he had $10,000 and if Gene had $15,000 that they were in good shape; and Gene told James he had made arrangements whereby he would have $25,000 or $26,000 cash. Later, on May 21 (Sunday), James telephoned Gene and asked him to change an appointment date with a Mrs. George at the Continental Casualty Company from • Monday morning to Monday afternoon, which Gene did, and James said he would call him on Monday. No call was received from James by Gene on Monday, so about 9:15 o’clock that night he reached James by telephone at the bus station after the last bus had arrived from Malden, Missouri. At this time, James told Gene he was going to stay at a hotel that night and go to the Continental Casualty Company the next morning and get the bond, and he did call Gene the next morning, May 23, and told him he was on his way to the Continental Casualty Company to pick up the bond, and that he would call him later. Meanwhile, Gene was out getting money from friends, relatives and banks. At 2:-30 p. m., not having heard from James, Gene called the Continental Casualty Company to see if he was still there and he learned that James had left at 11:30 a. m. with the bond. At 4:00 and 4:30 p. m., James called Gene, but did not talk to him inasmuch as Gene was out getting his share of the money. James called again at 5:10 p. m., and talked with Gene at which time Gene told him he had the money; James told Gene he had the bond and everything was set to go. At the close of that conversation, James told Gene he would call back in thirty minutes, but that call was never made. At about 7:00 or 7:30 p. m., an emergency meeting was called at Southwest’s office at which both Fergusons, Henry Classe and his brother, Ferd Classe, were present. Some discussion was had as to what happened to James Crawford. Upon calling the post office it was learned that in order for a letter containing a bid to reach Kansas City, Missouri, in time for bid openings the following day (May 24, 1961, at 1:00 p. m.) it would have to be deposited in the mail by 9:00 p. m.

At 8:00 p. m. on May 23, Southwest, Henry Classe and Ferd Classe entered into a written joint adventure agreement, changing the typewritten names of the contract form which had been prepared for Southwest and Crawford Company and adding the percentage by which the new parties would share in the venture, Southwest 50%, Henry Classe 25% and Ferd Classe 25%. These parties then made a bid on both Government Contracts (No. GS 06 T 52 for $145,000 and No. GS 06 T 53 for $112,000). Gene Ferguson, Jr., and Ferd Classe attended the bid openings in Kansas City and there learned that their bid of $145,000 on Contract No. GS 06 T 52 was not low, but that a bid thereon was submitted on behalf of a joint adventure composed of Crawford Company and Von Der Ahe Lines, Inc., for $142,000 which was the low bid and which was accepted. The two corporations thereafter procured their performance bond, and these low bidders did perform the specified moving job and were paid by the Government.

We reach immediately the decisive issue in this case. That is whether there was a valid contract between the parties upon which a joint venture could be based which in turn would give rise to a right to an accounting of profits as prayed and as granted by the trial court.

There can be no doubt under the evidence of this case that there existed a valid contract between the two corporate parties upon the first invitation to bid upon Contract No. GS 06 T 44 which was conditional only upon the GSA accepting the bid of the parties. The parties treated it as a binding agreement for a joint enterprise; they had agreed upon a bid price and had submitted it, which act supplied that missing item from their written instrument; and they continued in their attempts to procure a performance bond on the first contract No. GS 06 T 44 up to the time that GSA notified them that all bids thereon had been rejected, and that GSA would issue new bid invitations upon a divided job. We are of the opinion that at the time GSA rejected all bids upon Contract No. GS 06 T 44, the contract of the parties relating thereto came to an end. There was then no subject matter upon which their previous agreement could have rested.

A joint adventure can arise only by a valid contract between the parties thereto. Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562, 571 [7-13]; Scott v. Kempland, Mo., 264 S.W.2d 349, 354 [2-8]; Fish v. Fish, Mo.App., 307 S.W.2d 46, 50 [4], The creation of the joint adventure by the contract depends upon the actual intention of the parties which may be determined by application of the ordinary rules' of construction. The contract may be implied or inferred, in whole or in part, from the acts and conduct of the parties and from proven facts and circumstances showing such enterprise was in fact entered into. The agreement is not rendered invalid by any uncertainty in the duration of the business or indefiniteness in the minor details of the adventure. Scott v. Kempland, supra, and cases cited therein. See Annotations, 48 A.L.R. 1055; 63 A.L.R. 909; and 138 A.L.R. 968.

In this case we conclude that no enforceable contract was made. No agreement was reached with respect to the subject matter of the job. The parties failed to agree (1) whether they would bid upon one or both of the divided parts of the two invitations to bid (i. e., upon Contract No. GS 06 T 52 which was for the moving of the records, or upon Contract No. GS 06 T 53 which was for dismantling and crating of shelves), and (2) what would be the amount of their bid upon either or both invitations. Although it is true under the above-cited cases and authority that indefiniteness and uncertainty in the minor details of the adventure will not render it invalid, obviously the aforementioned two items upon which the parties failed to agree would not fall within that category. The kind of job they were going to perform and the amount of the bid they were going to make therefor are essential to the parties as a basis for figuring their anticipated profits. They would have to have a meeting of minds concerning the selection of either one or both of the jobs and whatever alternative was agreed upon, the price therefor. Dobbins v. City Bond & Mortgage Co., 343 Mo. 1001, 124 S.W.2d 1111. The evidence is clear and undisputed that the matter of the bid price was intended to be left open until the performance bond was procured. Both parties understood and agreed upon that. The record is silent as to the part or parts of the job upon which the parties contemplated they would bid.

At 12 Am.Jur. Contracts, § 23, p. 519, it is said, “A contract is not made so long as, in the contemplation of both parties thereto, something remains to be done to establish contract relations. The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete.” See also Brown v. Childers, Mo.App., 254 S.W.2d 275, 280 [3-5]; 17 C.J.S. Contracts § 31, p. 635. At most here, there is a mutual assent that the matter of the bid price (and the un-discussed matter of what portion or portions of the job were to be selected for bidding purposes) would be deferred until the performance bond was secured. “Unless an agreement to make a future contract is definite and certain upon all the subjects to be embraced, however, it is nugatory. * * * [W]here a preliminary contract leaves certain terms to be agreed upon for the purpose of a final contract, there can be no implication of what the parties will agree upon.” 12 Am.Jur. Contracts, § 24, p. 521. Under this record, which does not show that an enforceable contract was made (because the contract was not complete in all essential terms), each party had the legal right to go ahead with their individual bids to the exclusion of the other. This is in fact exactly what they did.

Inasmuch as the judgment of the trial court must be reversed because no valid contract for a joint adventure was made, we do not reach the further questions raised of the agency of James Crawford for his corporation, or the effect in law of plaintiff’s conduct in going ahead and making bids upon the moving job to the exclusion of defendants.

The judgment is reversed.

BARRETT and STOCKARD, CC, concur.

PER. CURIAM:

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

All of the Judges concur.


author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Dominick GAGALLARRITTI, a/k/a Richard Laverne, a/k/a Leslie Neslund, Appellant.
    No. 50194.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Opinion Modified on Court’s Own Motion April 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 13, 1964.

      Murry L. Randall and Lawrence Lee, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

On March 21, 1963, Dominick Gagal-larritti was convicted by a jury on a charge of obtaining money and merchandise by the use of a check drawn on a bank in which he knew he had no funds. The information alleged that defendant had previously been convicted of a felony. . The trial court held a hearing and found that defendant had been previously convicted and pursuant to Section 556.280, V.A.M.S., as amended in 1959, the trial court fixed defendant’s punishment at four years’ imprisonment. After a motion for new trial was overruled, defendant was accorded allocution and was duly sentenced. From the judgment entered, defendant appealed.

We shall hereinafter refer to the appellant Dominick Gagallarritti as defendant.

The State’s evidence shows the following: to have occurred. Raymond J. Geiger operated a Bootery at 2515 Woodson Road,. Overland, St. Louis County, Missouri. Wilbur Leipziger was employed there as-a salesman. According to the evidence of the owner and the salesman, given at the-trial, the defendant entered the store on December 6, 1962, and purchased a pair of shoes and three pairs of socks; that he-tendered a check in the sum of $35.00 bearing the signature of Dominick Gagallarritti;. Geiger accepted the check in payment of" the merchandise and defendant was given' about $9.00 in cash as change. Oliver J. Herpel, cashier of the Delmar Bank of University City, Missouri, on which bank the check was drawn, testified that there was not nor had there ever been before or after December 6, 1962, an account at that bank under the name of Dominick Gagal-larritti. Geiger and Leipziger each testified that the defendant was the person who obtained the goods and cash for the check in question. They were cross-examined and testified that they saw defendant fill out the check but were uncertain that defendant signed the check while in the store.

After the check was returned to the Boot-ery marked “No Account,” the police were notified and the defendant was arrested: and this prosecution followed.

In one of the assignments of error, the-defendant states that the evidence was insufficient to sustain a verdict of guilty. He urges that “there was no proof that the check was drawn in the defendant’s name or that, in passing the check, he purported to draw it on his own account.” It is true that the evidence disclosed defendant had used other names. However, two witnesses identified the defendant as having presented the check signed by the name of Dominick Gagallarritti. Defendant called only one witness in his own behalf, Raymond Poe-schel, a police officer. Note his evidence on direct examination:

“Q And at your request or through the office, did you have occasion to request the arrest in the City for an individual known as Dominick Gagallar-ritti?
“A Yes, sir, I did.
“Q All right. Now, did you have an occasion at a later date in your Overland police station to interview the man who is seated behind me?
“A Yes, sir, I did.
“Q Did he at any time indicate to you what his name was ?
“A Yes, sir.
“Q What was that?
“A Dominick—excuse the pronunciation, Gagallarritti.”

We rule the evidence as outlined above sufficient to sustain a verdict of guilty.

At the time of allocution, the court said to the defendant, “You are Dominick Ga-gallarritti?” His answer was, “Yes, sir, your Honor.”

Later, defendant applied for and was granted permission to appeal as a poor person, The court held a hearing on this application and the defendant testified. As to his name, the following occurred while defendant’s attorney was asking the questions :

“Q State your name, please.
“A My legal name is Richard Love Duane, Jr.
“Q And are you known as Dominick Gagallarritti?
“A That is my family name, but I stopped using it when I was seven years old.
“Q Are you the defendant in the case State of Missouri versus Dominick Gagallarritti, No. 251244?
“A Yes, I am.”

The matters occurring after verdict may not be considered on the question of the sufficiency of the evidence and we have called attention to them merely to demonstrate the lack of merit in the contention that defendant was not the person whose name .appeared on the check.

What we have said on the question of the sufficiency of the evidence disposes of the contention that the giving of instruction No. 1 was error. Defendant’s complaint as to this instruction, as stated in his assignment of error No. 3, is that the court “further erred in giving Instruction No. 1 as it gave the jury the right to roam, speculate and guess as to the identity of the defendant and to guess as to his guilt.”

Defendant contends that the jury and not the trial judge should have determined the punishment; this, for the reason that “The court erred in admitting State’s Exhibits 1-5 as proof of identity of prior convictions; the evidence was insufficient to prove such identity; * * The exhibits referred to were records which showed two convictions of Richard Laverne on two felony charges in the State of Minnesota. It was shown that fingerprints of Richard Laverne and those of defendant Dominick Gagallarritti were identical. Defendant cited the case of State v. Hagerman, Mo., 244 S.W.2d 49, 1. c. 53 (10-12), as authority in support of his contention. The opinion in that case is authority against defendant’s contention. See also 24B C.J.S. 'Criminal Law § 1962, p. 480. The point-is ruled against the defendant.

Assignment of error No. 1 in defendant’s brief reads: “The defendant was not represented by counsel at his preliminary hearing in violation of his rights under the Sixth Amendment to the U. S. Constitution, requiring reversal of this case.” Defendant says that this is so even if no showing of prejudice was made. We are of the opinion that such a statement is too broad. The cases relied on are Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.

In the Hamilton case, the defendant was prosecuted by an indictment. At the time of arraignment, before trial, he was not represented by counsel. The U. S. Supreme Court noted that under Alabama law a defendant to avail himself of the defense of insanity must enter such a plea at the time of arraignment or it is lost; that the same is true of a plea in abatement and objections to the improper drawing of the grand jury. The court commented, “Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, * * 82 S.Ct. 158, 159 (4, 5).

In White v. Maryland, supra, the defendant was not represented by counsel at his preliminary hearing. At that hearing, the defendant entered a plea of guilty. At the trial of his case, the State introduced as evidence of guilt the plea of guilty made at the preliminary hearing. In the U. S. Supreme Court, the State of Maryland contended that a defendant need not enter a plea at a preliminary hearing. It was argued that in the State of Alabama a defendant was required to enter a plea at the time of arraignment which was a critical stage of the case where certain rights may “be lost, which was not the case at a preliminary hearing under Maryland law. The U. S. Supreme Court, in answer to this contention, said, “Whatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel.” 83 S.Ct. 1051(2). As we view the two cases, that is, the case of Hamilton v. Alabama and White v. Maryland, the U. S. Supreme Court held that Hamilton lost certain rights by not having asserted them at the time of arraignment, and that White’s plea of guilty was used against him at the trial. In such circumstances, the court held that a showing of prejudice need not be made. Had Hamilton had counsel at the time of arraignment, a plea of insanity or other rights might not have been lost. The same with White: He might not have entered a plea of guilty at his preliminary hearing if he had been represented by counsel.

The facts in the case before us are quite different. The defendant lost no right and the State gained no advantage by anything that occurred at the preliminary hearing. There is a complete vacuum in the record of the trial in the circuit court concerning the preliminary hearing. In fact, no mention was made thereof directly or indirectly. The failure to be represented by counsel was not noted until the case was briefed on appeal. It was necessary to order a supplementary transcript, at defendant’s request, to show that a preliminary hearing had been waived by the defendant. The record in this case, in so far as the preliminary hearing is concerned, contains no occurrence or ■ fact upon which to base prejudice or non prejudice.

Defendant was represented by counsel long prior to his trial. When the case was called, the defendant as well as the State answered ready for trial. We rule that the U. S. Supreme Court cases of Hamilton v. Alabama and White v. Maryland, supra, do not rule this case.

Assignments of error Nos. 2 and 4 concern the same subject matter and we shall treat them together. In No. 2, defendant states that the trial court erred in admitting in evidence a 'pair of shoes and a checkbook because they were obtained by an illegal search and seizure. In No. 4, defendant complains because the trial court refused to permit the defendant to introduce in evidence certain cards that were in the checkbook and which had not been noticed by either the State or the defendant until the final argument to the jury by the State’s attorney.

The shoes and checkbook were obtained in the following manner. Defendant was arrested on December 20, 1962, by a St. Louis police officer named McCarty. The officer found defendant in Room 109 at the Windsor Hotel in St. Louis, Missouri. The next day, the police returned to the hotel and obtained from a storeroom in the hotel a pair of men’s shoes and a checkbook. The checkbook contained checks signed Dominick Gagallarritti. The checks were on the Delmar Bank of University City, Missouri. The shoes were identified as those sold to the defendant on December 6, 1962, by the Bootery.

The question of unlawful search and seizure was not mentioned during the trial nor in the motion for a new trial. Defendant having failed to preserve his point at the trial is in no position to complain on appeal. Supreme Court Rule 33.03, V.A.M.R.; State v. Campbell, Mo., 262 S. W.2d 5, 1. c. 6(2); 24 C.J.S. Criminal Law § 1669, p. 1050.

The matter complained of in assignment No. 4 occurred during the argument to the jury by the State’s attorney. While the prosecutor was arguing, he picked up the checkbook and three card's fell on the table. Defense counsel picked them up and then immediately interrupted the proceedings and asked the court that he might reopen the case and offer these items in evidence. Apparently neither counsel had noticed the cards prior to that time. The cards had no relation to any issue in the case except one social security card bearing the name-of Dominick Rocky Gagallarritti and bearing a signature Dominick R. Gagallarritti. The trial court refused defendant’s request to reopen the case and over defendant’s objection withdrew the cards from further consideration. The jurors were not permitted to see the cards.

When the court asked counsel what the purpose of showing these cards to the jury was, he answered, “To further identify there is a Gagallarritti with that name.”

Reopening a case for the purpose of introducing new evidence rests within the sound discretion of the trial court and if not abused, his action will be approved. 88' C.J.S. Trial § 104, pp. 217-220; Landau v. Laughren, Mo., 357 S.W.2d 74, 1. c. 81, 82 (3, 4); State v. Highfill, Mo., 165 S.W.2d 642.

Apparently the evidence of the social security card would support the State’s-theory that the defendant was in fact Dominick Gagallarritti. We do not see how that evidence would have benefitted the defendant.

We have examined the record and have reviewed and considered all points briefed and have found no reversible error therein.

Counsel appearing for the defendant in-this court did not participate in any of the proceedings in the trial court. At the request of this court, the trial court appointed present counsel to brief and present the-case on appeal.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: HYDE, Judge.

text:
    ST. LOUIS UNION TRUST COMPANY and Walter Conrad Schmidt, Executors Under the Will of Katherine Herkert, Deceased, Respondents, v. Albert D. KRUEGER, Executor Under the Will of William Herkert, Appellant, and Walter Conrad Schmidt, Respondent.
    No. 49672.
    Supreme Court of Missouri, En Banc.
    April 13, 1964.
    G. H. Suelthaus and Louis M. Kohn, St. Louis, for appellant.
    Greensfelder, Hemker & Wiese, Forrest M. Hemker, James L. Hawkins, St. Louis, for respondent.
   HYDE, Judge.

This action brought by the executors of the estate of Katherine Herkert, for declaratory judgment for the construction of her will, was heard in Division Two and an opinion adopted affirming the judgment of the trial court but the case was transferred to the Court en Banc. The determination sought was whether claims, family allowance, taxes including federal estate tax and other charges against testatrix’s estate must be deducted from the gross value of her estate before computing the amount of one-half of her estate to go under her will to the estate of her husband William F. Herkert, who died about thirteen months after her death. His executor appealed from the trial court’s determination that these charges must be deducted and shows that such deductions make a difference of more that $60,000.00 in the amount his estate would receive so we have jurisdiction because of the amount involved.

In addition to the introductory and attestation clauses, the will contained twenty-three separately numbered paragraphs, the first two and the twenty-second were as follows:

"FIRST: I direct that all my just debts, the expenses of my funeral and of my last illness shall be paid out of the estate by my executors hereinafter named as soon after my death as may be practicable.
"SECOND: I hereby give and bequeath unto my husband, WILLIAM F. HER-KERT, one-half of my estate, if' living. Should my husband predecease me, I hereby give and bequeath my said husband’s share to my nephew, WALTER CONRAD SCHMIDT, son of my brother Conrad Schmidt, deceased.
"TWENTY-SECOND: To my nephew, Walter Conrad Schmidt, son of my brother Conrad Schmidt, deceased, I hereby give and bequeath all the remainder of my estate not otherwise herein given or bequeathed.”

The third through the twenty-first paragraphs made general monetary bequests, each for a specific amount, to various charities, employees and relatives, all of which total $76,600.00. The twenty-third clause appointed plaintiffs her executors. Appellant contends that the correct approach to resolve the issue on this appeal is to determine which of the beneficiaries under the will is to bear the burden of the various charges and claims against and expenses of the estate, and he asserts that it should be the residuary legatee. Respondents contend, on the other hand, that the correct approach is to determine the quantum of that of which William F. Her-kert is to receive one-half, and they assert that it is the net or distributable part of the estate as defined by the trial court.

Appellant contends that the bequest to a surviving spouse should not be reduced by any portion of the federal estate tax except on property received by the surviving spouse which contributes to or causes a part of the federal estate tax, relying mainly on Hammond v. Wheeler, Mo.Sup., 347 S.W.2d 884, in which no will was involved. Likewise in Jones v. Jones, Mo., 376 S.W.2d 210, more recently decided by the Court en Banc no will was involved. Of course, as these cases show, testatrix could have expressly provided in her will where the burden of the federal estate tax and other claims or charges should fall, but, since she did not do so, we must decide this case on what she did say. The problem is the interpretation of the will. As we said in Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21, 23: “The keystone of construction in determining the meaning of any will is the intent of the testator. This intent must be gathered from the whole will. * * * When the intent of the testator is found, the proper construction of the will is solved.” When the proper construction of the will is solved, the question of the amount to which appellant is entitled will be solved.

In construing the will, we adopt part of the Divisional opinion as hereinafter set out without quotation marks. It must be presumed that the testatrix, as an adult person mentally capable of managing her affairs and making her will, knew that the various charges imposed by law against the property of her estate would have to be paid by her executors before the legatees designated in her will could be paid the various amounts from her distributable estate. Until the amount of these various charges against the property of an estate is ascertained “the amount of the estate for the purposes of division [between the legatees] cannot be detérmined.” Blakeslee v. Pardee, 76 Conn. 263, 56 A. 503. Therefore, in the absence of an express direction on the part of the testatrix concerning the source of the money necessary to pay these charges, it is reasonable to assume and we conclude that she intended that they be paid from her gross estate, and that she further intended that the bequests be effective only as to that part of her gross estate over which she has the power or right to direct to whom it goes, which is the net or distributable estate remaining in the hands of her executors after the payment of the various charges imposed by law. See Estate of Kirby, 199 Cal. 135, 248 P. 517.

No previous case in this state has been found ruling the precise issue here presented, but the conclusion and result we have reached is in accord with the cases we have found from other jurisdictions which have expressly considered the matter. In addition to Blakeslee v. Pardee, supra, and Estate of Kirby, supra, see In re Momand’s Estate, 13 Misc.2d 990, 177 N.Y.S.2d 115, where it was said that “absent some provision to the contrary, debts and administration expenses are deducted in computing the value of an estate when a fraction thereof has been bequeathed.” See also Wells v. Menn, 158 Fla. 228, 28 So.2d 881, 169 A.L.R. 892, 897, where it was said: “We approve the better rule which provides that when a testator devises ten per cent of his estate, or any fractional part thereof, to a named beneficiary it has reference to ten per cent of the net or distributable part of the estate.” Other cases in which the precise question has been considered include In re Petroff’s Estate, 5 Misc.2d 318, 159 N.Y.S.2d 735; In re McLennan’s Estate, McRae’s Appeal, 179 Mich. 595, 146 N.W. 265; Briggs v. Hosford, 22 Pick. 288, 39 Mass. 288; Smith v. Terry, 43 N.J.Eq. 659, 12 A. 204; In re Mass’ Will, Sur., 65 N.Y.S.2d 93. See also the cases, which include some of the above, cited in the annotation in 169 A.L.R. at p. 903 entitled “Base for determination of amount of bequest of a specific per cent or proportion of ‘estate’ or ‘property.’ ” An interesting analogy may be found in In re Gardner’s Estate, 35 N.J.Super. Í63, 113 A. 2d 527, where it was held that “where a specific legacy is followed by a gift of a fraction of the entire estate, the reference to the entire estate pertains only to the property remaining after the specific legacy has been paid.” In this case, the gift of the fractional part of the estate follows the payment of the charges imposed by law against the estate, and those charges are superior in preference to the gift of a specific bequest.

In Baylor v. National Bank of Commerce of Norfolk, 194 Va. 1, 72 S.E.2d 282, 284, the court said: “The widow’s basic contention is that the testator, by the bequest to her in the following language: T also give and bequeath unto my said wife, Anne L. Baylor, absolutely, one-third of my personal estate,’ intended that she should receive one-third of his personal estate without diminution by reason of debts, costs of administration, funeral expenses and death taxes.” This contention was rejected by the court, citing the Florida case of Wells v. Menn, supra, and the A.L.R. annotation following it, 169 A.L.R. 903, holding that costs of administration, funeral expenses and debts were deductible in determining the base for ascertaining the fractional part of the estate bequeathed to the widow, since the testator did not otherwise direct. Deduction of the federal estate tax was also required, although Virginia had an apportionment statute, because the testator directed payment of federal taxes in Item 1 of his will directing payment of his debts and funeral expenses.

We find another persuasive clue to the intent of the testatrix in the second sentence of the second paragraph where she states, if her husband predeceases her, “I hereby give and bequeath my said husband’s share to my nephew, Walter Conrad Schmidt.” (Emphasis ours.) Of course, there could be no marital deduction to apportion if her husband predeceased her so that this share going to the nephew would surely be a share of what was left after payment of federal estate taxes. Thus, by making no distinction between the share to go to her husband if he outlived her and the share to go to her nephew if her husband died first, it appears that in either event the portion of her estate devised was intended to be the same. This provision strongly indicates the testatrix’s intent to be that her husband’s share would be one-half of her net estate available for distribution after payment of all debts, claims, administration expenses, taxes, including federal estate taxes, and other lawful charges. In view of all these considerations, we hold that is the meaning of the will.

Appellant in his supplemental brief in Banc continues to argue that this construction of the will means that Mr. Herkert’s share will be bearing the burden of one-half of the charges against the estate, including the federal estate tax, which he says is contrary to the doctrine of judicial equitable apportionment and means that Hammond v. Wheeler, supra, is no longer to be followed. However, we are deciding this case on what the will means and when that meaning is decided there is nothing else to consider because the will governs. Neither intestacy nor renunciation statutes nor the doctrine of equitable apportionment have anything to do with it because the will settles it. Appellant also cites Sec. 473.620, RSMo, V.A.M.S., the abatement statute, which he says is also an apportionment statute, claiming it shows that Mr. Herkert’s bequest should not bear the burden of one-half of the charges against the estate, saying it provides they should be borne by the residue. However, this statute states in paragraph 1 that it is “subject to the provisions of the will”; and m paragraph 3 that property “shall be apportioned in the manner found necessary to give effect to the intention of the testator.” We have decided what the will meant for Mr. Herkert to get and therefore the statute is inapplicable in this case.

The judgment is affirmed.

All concur.


author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. William COLE, Appellant.
    No. 49974.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Morris A. Shenker, Lawrence J. Lee, Emanuel Shapiro, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Judge.

By an indictment filed in the Circuit Court of St. Louis County, the defendant was charged with manslaughter in the death of one John Henry Rogers on June 23, 1961. Defendant was convicted of said offense and his punishment was assessed at one year’s imprisonment in the county jail. He has appealed from the judgment entered against him.

On this appeal there is no contention that a case was not made for the jury, but error is assigned on the giving and refusal of instructions, to wit: on the failure to give instructions with reference to threats made by the deceased against the defendant and with reference to the intoxication of the deceased. Also, on the court’s failure to instruct on the question of whether defendant was acting to prevent the commission of a felony upon his companions. Defendant also complains of the giving of Instructions No. 1 and No. 2 because of the exclusion of the last mentioned matter from these instructions.

With these assignments in mind, we shall review the evidence and in doing so we shall consider the evidence in a light most favorable to the defendant-appellant in order to determine whether the evidence was sufficient to support and authorize instructions on the mentioned matters. State v. Stone, 354 Mo. 41, 188 S.W.2d 20, 22 [7] ; Thurman v. St. Louis Public Service Co., Mo.Sup., 308 S.W.2d 680, 684 [2]; Rudin v. Moss, Mo.Sup., 349 S.W.2d 893, 894 [1], That is, we must ascertain whether the record contains any competent substantial evidence on the mentioned matters and whether the court was requested to instruct thereon and whether the issues have been preserved for review. See State v. Murphy, 292 Mo. 275, 237 S.W. 529, 535 [14] [15] [16]; State v. Clinton, 278 Mo. 344, 213 S.W. 841, 843 [7, 8]; State v. Baker, 262 Mo. 689, 172 S.W. 350, 353 [2, 3], Instructions must be based upon substantial evidence and the reasonable inferences to be drawn therefrom. State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100, 103 [4, 5].

The State produced and offered in evidence three statements taken from defendant while he was in the custody of the police officers, to-wit: a statement of defendant in his own handwriting reviewing the facts and circumstances attending the death of Rogers; a statement of defendant taken by the coroner of St. Louis County and reduced to writing; and the transcript of a statement given by defendant to Daniel V. O’Brien, a member of the prosecuting attorney’s staff, which statement was taken on a tape recorder and then transcribed. Needless to say, these statements contained many admissions against interest, but in view of the issues presented on this appeal it will not be necessary to review either of these statements.

At the time of the alleged crime, the defendant was 20 years of age and weighed 175 pounds. He had graduated from high school and had attended Northeast Missouri State Teachers College at Kirksville for one year and Harris Teachers College in St. Louis for one semester, but he had dropped out of college in January 1961, to work for one semester, planning to return to college in September 1961. Back in 1956, when he was 15 years of age, he had been a Golden Gloves Champion. He had never been in any trouble “with the law.” He lived with his parents in the City of St. Louis, and was employed at the Hi-Pointe Professional Pharmacy at the corner of Clayton and McCausland.

Willie Brown, a friend of defendant Cole, also lived in the City of St. Louis, and had also attended Northeast Missouri State Teachers College. Brown had been secretly married to Loresta Smith, who lived with her mother at 217 Euclid in Rock Hill, St. Louis County. She was attending the Kansas Neurological Institute.

One Janet Terry, a friend of Loresta Smith, lived down the street a short distance from the Smith home. John Henry Rogers, age 22 years, lived in the neighborhood of the Smith home and had been at the Smith home on countless occasions. On the evening of June 22, 1961, Janet Terry, who had dated Rogers, was visiting at the Smith home and had refused to see Rogers that evening. Janet Terry had with her as her guest one Johnnie Avery (a girl) from Chicago. Both girls spent the evening of June 22, 1961, visiting Loresta Smith.

The evidence tends to show that for some time there had existed some feeling by the local boys in the county against city boys who came out to visit girls in the county, and there was constant friction and tension between them. The evidence further shows that William Charles Hudson, who was with Rogers on the evening in question, was a known troublemaker.

Defendant Cole spent the evening of June 22, 1961, with Willie Clifton Brown and another friend, Stanley McKissic. McKissic also lived in the City of St. Louis, and was employed as a messenger boy for the Spielberg Manufacturing Company. He had also been a Golden Gloves Champion. At about midnight, Cole and Mc-Kissic went with Brown to visit Brown’s wife in Rock Hill at the Smith home. They did not drink any alcohol that night, nor did they carry any weapons with them.

At the Smith home they ate brownies, drank milk and played records for an hour or so. Also present was Ted Smith, a young brother of Brown’s wife, and Mrs. Smith. One Herschell Turner, a nephew of Mrs. Smith, was also staying at the Smith home during vacation from Washburn College, Topeka, Kansas. He was working as a bus boy at Gaslight Square in St. Louis and, when he got off from work, all of the young people, except Brown and wife, drove into the city to pick him up and bring him home with them.

While defendant and the others had gone for Turner, Rogers and Hudson raced their automobile back and forth in front of the Smith home, drove into the driveway and out and made a lot of noise and talked loud. When Willie Brown went out to see them, they said they did not want anyone in the house, but as he re-entered the house, they yelled at him to give his name. Thereafter, Rogers and Hudson continued to drive into the driveway, back out and go back and forth in front of the Smith home, making a lot of noise. When the young folks returned with Turner, Brown told the defendant and the others about these fellows pulling into the driveway, cursing and making noise. Mrs. Smith then asked defendant Cole and his friend McKissic to take the visiting girls, Janet Terry and Johnnie Avery, to the Terry home about a block away and they proceeded to do so.

As the boys were returning to the Smith home, walking in the edge of the street, Rogers and his companion Hudson approached them, driving their automobile at a high rate of speed, but Cole and Mc-Kissic were able to get on the sidewalk and out of the way, and they continued walking toward the Smith home. Rogers and Hudson then stopped their car and after a few remarks, they got out of the car and “asked what the so and so are we doing out there” and stopped them. Both Rogers and Hudson then started harassing Cole. Cole did not know either of the two men and the place where he had been stopped was very dark. Rogers and Hudson then began hitting, pushing, cursing and threatening Cole. Rogers and Hudson were both drunk and they concentrated their attention on Cole. In an effort to protect Cole, McKissic cut Rogers off from Cole and argued with him, because both men were after Cole. Cole and McKissic explained that they did not want to fight, but Rogers and Hudson persisted with threats, curses, pushing and blows. Hudson then obtained from his car trunk an automobile hood ornament with which he struck defendant Cole on the back and shoulder. As stated, the area was very dark and it was difficult for Cole to tell who was hitting whom, especially since Cole did not know either Rogers or Hudson.

Brown and Turner, at the Smith residence, heard the affray and ran to the scene. Turner announced that he was going to call the police and ran back to the Smith house. There he told Mrs. Smith to call the police, which she did. Neither Brown nor Turner had participated in the affray. Hudson, upon hearing Turner announce that he would call the police, cursed him and jumped into his car, called for Rogers to join him, but Rogers did not respond. Hudson then drove away.

At the Smith house, Turner obtained a knife from his own suitcase and returned to the scene of the affray, handing it to defendant Cole, so that Cole could defend himself. Cole had been backing up and had started to run. He had gone perhaps 15 feet when he met Turner and received the knife. He then rejoined the group arguing with Rogers. When Rogers saw Cole standing behind Brown, “he ran down toward Cole and they collided.” Rogers was stabbed in the chest and fell back on the concrete and Cole fell in the street. Rogers did not get up and, when they saw blood on his shirt, the boys panicked and fled. Later, they called Mrs. Smith to learn that the police had arrived, pursuant to Mrs. Smith’s call, and that an ambulance had arrived and removed Rogers. Rogers was pronounced dead upon arrival at the hospital.

Dr. John Poyner Wyatt, M.D., a pathologist and a witness for the State, performed a post-mortem examination on the body of John Henry Rogers. The knife wound had severed the aorta and the pulmonary arteries and passed through “the base of the heart.” The witness had had the blood from Rogers’ body analyzed for alcohol content and found “.20 grams of alcohol percent,” or “.05 grams percent” above what the “National Security Council regulations” have fixed as a maximum above which an individual is not capable of operating a motor vehicle.

Appellant’s first assignment, as stated, is that “the trial court committed reversible error in failing to give and read to the jury defendant’s Instructions Delta ‘E’ and ‘F’ or other correct instruction requiring the jury to take into account threats made by the deceased, whether communicated or uncommunicated to defendant in connection with the defense of self-defense.”

The trial court refused to give either of these tendered instructions with reference to threats. Instruction No. Delta E follows quite closely the instruction approved in the case of State v. Lloyd, Mo. Sup., 263 S.W. 212, 215 [9], and set out in that opinion. We, therefore, find it unnecessary to set out Instruction No. Delta E in full in this opinion since a substantially similar instruction was fully approved in the Lloyd case, supra. With reference to Instruction Delta E, the record shows: “the defendant requests that the court give an instruction, if not the defendant’s offered instruction on threats, then instructions prepared by the court on threats communicated to William Cole by the deceased; and also the defendant requests that the court give an instruction on threats communicated to William Cole by the deceased and/or by Willie Hudson acting in concert or together with the deceased.”

The court refused to give either of the instructions and stated that the instruction was refused “for the reason that in the court’s opinion this matter [threats] is amply covered by the instruction that is going to be read to the jury relating to self-defense.”

In the motion for a new trial, the defendant complained of the refusal of his Instruction Delta E, as follows: “The Court erred in failing to give to the jury instruction Delta E offered by the defendant for the reason that said instruction is a true declaration of the law and the failure to give this instruction denied the defendant the right of having the jury consider the evidence as to threats made by the deceased or another acting together with or in concert with the deceased as bearing on conduct, apprehension and attitude and as shedding light upon who was in fact the aggressor.”

Respondent, however, contends that “these instructions were properly refused as there was no evidence of self-defense in this case and, therefore, any evidence of threats was not properly admissible.” Respondent relies upon the pre-trial statements of the defendant which defendant sought to explain and to some extent repudiated at the trial. Respondent, in effect, concedes that there was some evidence to support the requested instructions, when respondent states that “Appellant is apparently relying upon the testimony of appellant’s friends, McKissic and Brown, who testified for the State. They both testified that just before the stabbing they saw the deceased rush toward appellant and at the same time take a shiny object out of his pocket.”

Defendant did testify in his own behalf at the trial, as follows: “I heard somebody say they were going to call the police * * * and then this guy kept — he was all the time, he was directing his attention on me, and * * * I was still backing up-from him, I was scared, I was scared out of my head, I didn’t know what was happening, I didn’t know if he was going to kill me or not. They said they were going to bust my head, that they were going to-hurt me, and so I didn’t know, I was just scared.” Respondent also insists that his-reference was to Hudson; however, all the evidence shows that, when the police-were mentioned, Hudson got in his car and, after calling to Rogers to come on, he left before Rogers was stabbed.

Defendant further testified at the trial that both Rogers and Hudson “broke at me and began pushing me and hitting me with his fists, * * * I was telling him I didn’t want any trouble, I didn’t come •out there to fight, * * * I broke away from this other one that was holding me, * * * and I was backing up from him trying to get away, because I told him I didn’t want to fight, and I knew right then they had been drinking because I could smell it when they came up on me, and I was scared ***.*** They said they were going to bust my head, that they were going to hurt me, and so I didn’t know, I was just scared,” Of Hudson he said, he told me “he was going to kill me with this thing he had in his hand. * * * I was scared for all of us. * * He claimed to have no memory of the stabbing.

As to matters immediately preceding the stabbing, State’s witness Stanley Mc-Kissic testified: “I had trouble with Rogers keeping him away from Cole, that’s why I intercept Rogers from Cole, because both of them was harassing Cole. * * * They was telling Cole, at the time they were cursing him, telling him about I’m going to kill this so and so and so. * * * He [Rogers] had his hands in his pockets all the time, he could have had anything, knife, gun, anything * * * plus he was threatening. * * * He was threatening, you know, Cole; he wanted to get Cole * * *. * * * When he [Rogers] seen Cole standing up behind Willie Brown after he had been chased away, he [Rogers] went past Willie Brown to get to Cole. And at that point his hands came out of his pocket with something flashing. * * * That’s when he ran to Cole and they collided, * * and Rogers fell up, back on the concrete and Cole fell down in the street.” This witness also said: “He was lunging after Cole. * * * The way Rogers looked up and seen Cole, I don’t know, a rage came over him or something, I don’t know what happened to him, he flew towards Cole. As a matter of fact, he brushed past Willie Brown and ran into Cole, that’s when they collided.” As stated, after they collided, both fell back but Rogers did not get up after that — he had been stabbed. McKissic further said that Rogers repeatedly swung at Cole.

A sergeant of the Rock Hill Police Department testified for the State that Cole told him that when these two fellows got out of the car they acted like they were crazy.

Brown testified that Rogers said, with reference to Cole, that “he was going to kill him, cut his throat, and bust his head.”

Respondent insists that there was evidence in the record which tended “to contradict the testimony of witnesses Brown and McKissic that deceased was running toward appellant at the time he was stabbed.” We fully agree, but defendant was entitled to have the instruction on the evidence favorable to him. The evidence supports the defense of self-defense and on the basis of the favorable evidence in the record, the defendant was entitled to have the jury instructed with reference to threats as set out in Instruction No. Delta E, and the court erred in not instructing the jury on the issue as to threats, as requested. State v. Finn, Mo.Sup., 243 S.W.2d 67, 73 [14-16]; State v. Bounds, Mo.Sup., 305 S.W.2d 487, 491; State v. Trainer, 336 Mo. 620, 80 S.W.2d 131, 134 [5, 6] ; State v. Lloyd, Mo.Sup., 263 S.W. 212, 215 [9] ; State v. Rozell, Mo.Sup., 279 S.W. 705, 710 [8] [9]; State v. Murphy, supra, 237 S.W. 529, 535 [14]; 41 C.J.S. Homicide § 382, p. 185. In view of the conclusions reached as to Instruction Delta E, we need not specifically consider Instruction Delta F.

Appellant further contends that the trial court erred in failing to instruct the jury that they may take into account the intoxication of the deceased in connection with the defense -of self-defense and in failing to give defendant’s Instruction Delta C which correctly instructed on intoxication. Instruction Delta C was a fairly long instruction dealing 'with the issue of self-defense; however, the closing paragraph of this instruction, upon which the appellant relies, closed with the following words: “You are further instructed that the defendant, in measuring the existing circumstances at the moment, could properly consider the fact that the said John Rogers and Willie Hudson were drinking, along with all the other existing circumstances at that time.”

The trial court refused to give Instruction C, and the record shows that the court said the defendant also “objects to the court’s failure to give instructions on the intoxication of the deceased, the question of intoxication of the deceased, as far as determining who was the aggressor.” The court then stated that he refused “to give an instruction on intoxication for a number of reasons, one of them being that none has been offered by the defendant, and for additional reasons, primarily because it is not necessary under all the facts and circumstances in evidence.”

In the motion for a new trial the defendant complained of the refusal of Instruction Delta C as follows: “The Court erred in failing to give to the jury instruction Delta C, offered by the defendant for the reason that said instruction was a true declaration of the law, was part of the law of the case and was supported by evidence in the case.” This assignment was insufficient under Supreme Court Rule 27.20, V.A. M.R.

Appellant in his brief states that the intoxication of the decedent was a factor that would reasonably cause apprehension to the defendant, and since there was an issue as to who was the aggressor at the time of the stabbing, the drinking of the decedent could shed light on the issue. Appellant further says that the jury was left uninstructed on a very important feature of the defense of self-defense, and that appellant sees no difference between the question of drunkenness here and the issue of threats in Finn, supra, and Bounds, supra, and, therefore, the court committed reversible error in failing to instruct on the issue since an instruction was tendered. See State v. Chaney, Mo.Sup., 349 S.W.2d 238. It is true that the record shows that both Rogers and Hudson were drunk at the time in question. This evidence was received without any objection, and it was properly admissible since one of defendant’s defenses was self-defense. See State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556, 564 [16]. Also see 40 C.J.S. Homicide § 278 d, p. 1243. However, the evidence was insufficient to require an instruction thereon, since there was no evidence that Rogers was of a turbulent and dangerous disposition when under the influence of liquor or that defendant knew of any such fact. There was no evidence that intoxication of Rogers played any part in the case or that his intoxication increased defendant’s apprehension of danger. State v. Jenkins, 327 Mo. 326, 37 S. W.2d 433, 436 [5] ; State v. Miles, 253 Mo. 427, 161 S.W. 766, 769 [7]. The court did not err in refusing to give Instruction Delta No. C, since the self-defense portion of the instruction was well covered by other instructions, nor did the court err in failing to instruct on the intoxication of the deceased.

Appellant further assigns error as follows : “The trial court erred in giving and reading to the jury Instruction No. 1, the verdict directing instruction, Instruction No. 2, the self defense instruction and in failing to give defendant’s Instruction No. Delta A, for the reason that the Court removed from the jury the question of whether defendant was acting to prevent the commission of a felony upon defendand’s companions. Instruction No. 1 authorized acquittal when the killing is justifiable-homicide, defined erroneously to mean only ‘lawful defense of one’s person’; Instruction No. 2 defined self-defense in terms only of defense of oneself, while Defendant’s Instruction Delta A which was refused, would have. properly instructed that justifiable homicide includes prevention of the commission of a felony.”

Instruction A was as follows: “The Court instructs the jury that if they find and believe from the evidence that the defendant stabbed and wounded John Rogers for the purpose of preventing the commission of a felony upon the person of Stanley McKissic, or Hershel Turner or William Clifford Brown, they will return a verdict of not guilty.”

We find no substantial evidence in the record to have supported the giving of Instruction A. The evidence clearly shows that Rogers and Hudson directed their attention to defendant Cole and not to his associates. There was no substantial evidence of any intent of Rogers to commit a felony by an attack upon Brown, McKissic or Turner, and particularly so after Hudson had departed.

Further, while Instructions 1 and 2 were given by the court over the objection of the defendant, the motion for a new trial does not mention the matters presented in this assignment.

In his motion for a new trial the defendant contended that “The Court erred in giving and reading to the jury instruction number one, the verdict directing instruction, for the reason that said instruction does not contain a correct definition of manslaughter in that it fails to mention excusable homicide and consequently lessened the State’s burden of proof by not requiring the State to prove that the homicide was not excusable and said instruction also denied the defendant the legal defense of excusable homicide.” Defendant also claimed the instruction was erroneous, as follows: “for the reason that said instruction is tantamount to a comment on the evidence in that it first mentions an assault and then unnecessarily mentions and highlights ‘cut, stab and wound’ and then again mentions and highlights 'assaulting, wounding and stabbing’, [and] said instruction by unnecessarily repeating assault, cut, stab and wounding tends to crystallize these evidenti-ary facts in the minds of the jurors and by the time the instruction is read in full these facts tend to be conclusive rather than facts to be found by the jurors.”

Defendant also complained of Instruction No. 2 as follows: “The Court erred in giving and reading to the jury instruction number two, the self-defense instruction, for the reason that said instruction narrowed the defendant’s right of self-defense in that the instruction fails to allow the jury to return a verdict of not guilty if they feel that the defendant was defending himself against a person other than the deceased. The instruction merely tells the jury that the defendant may be acquitted if he was defending himself as to the deceased or the deceased acting with another and fails to instruct that the defendant had a right to defend himself against another acting alone or in concert with the deceased.” Defendant also complained of Instruction No. 2 “for the reason that said instruction shifts the burden on the defendant to prove that he had reasonable cause to believe that his actions at the time of the homicide were necessary to protect his life or person.”

It will be noted that defendant in his motion for a new trial did not raise any of the matters of which he now complains. He has wholly abandoned his original complaints concerning Instructions 1 and 2 and seeks to present new matters not previously mentioned. In the motion for a new trial he complained of the refusal of Delta A as follows: “The Court erred in failing to give the jury defendant’s instruction Delta A for the reason that the defendant was thereby deprived the right of defense of third persons and consequently deprived of a theory of his defense.” As stated, there is no evidence in the record that either Hudson or Rogers assaulted or took any particular notice of defendant’s associates, except by way of argument. Their entire attention was directed to defendant, and, while it is true that at one place in the record defendant did say that he “was scared for all of us” still there certainly isn’t anything in die record to justify an instruction on that basis, or to support the contention that Instructions 1 or 2 are erroneous in failing to include the mentioned matter.

For the error in refusing to give Instruction Delta E or any other correct instruction requiring the jury to take into consideration threats made by the deceased against the defendant, as hereinbefore stated, the judgment is reversed and the cause remanded.

All concur.