author: HYDE, Judge.

text:
    Margaret HUSTON, Appellant, v. William T. HANSON and Hanson Mobile Homes, Respondents.
    No. 48670.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      S. David Trusty, Arthur C. Popham, Jr., Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondents.
    Albert J. Yonke, Kansas City, for appellant.
   HYDE, Judge.

Action for $150,000.00 damages for personal injuries. Verdict for defendants and plaintiff has appealed. Both defendants had counterclaims, the corporate defendant for damages to its automobile involved and the individual defendant for personal injuries, on which the jury found for plaintiff and they have not appealed. We will refer to the individual defendant as the defendant.

Plaintiff was injured when the Cadillac car occupied by her and defendant went off the highway after striking another car. Plaintiff’s brief says: “The only issue in this lawsuit (other than damages) was whether plaintiff or defendant, William Hanson, was the driver of the Cadillac at the time of the accident.” This issue was squarely put to the jury, the main instruction (No. 1) authorizing a verdict for plaintiff (given at plaintiff’s request) requiring a finding that defendant was driving. There is no claim of error as to any instructions except Instruction 7, a cautionary instruction not submitting any facts. Therefore, it is only necessary to say here that plaintiff testified that defendant was driving and defendant testified that plaintiff was driving; and that the testimony of Harriett Klein, who was riding in the car struck by the Cadillac, corroborated defendant. However, there was another instruction (No. 13) telling the jury that if they were “unable to determine and unable to make a finding as to who was driving the Hanson car at the time plaintiff claims to have been injured, then plaintiff cannot recover on her claim, and the defendants cannot recover on their counterclaim.” Apparently from their verdict, this was the jury’s view.

Plaintiff’s first claim of error is the admission of statements made by defendant at the scene of the accident, saying they were hearsay, self-serving, legal conclusions, unresponsive, prejudicial and not part of the res gestae. This refers to the testimony of the witness Rogoff who was driving the car struck by the Cadillac. At the place of this occurrence, Highway SO is a four-lane divided highway on which both cars were going in a westerly direction toward Kansas City. The two cars involved were on the north (westbound) lanes. The two south (eastbound) lanes were 89 feet south of the north lanes but 24 feet lower. The Cadillac went off the north pavement, over the embankment, and landed on its wheels in the ditch on the north side of the south lanes. Rogoff said he stopped his car off the pavement within ISO feet from the place where it was struck, ran down the embankment, followed by Miss Klein. They found defendant with his head in the ditch, at the right of the Cadillac, and with his feet still in the car. Rogoff estimated he got there within 45 seconds after the collision. Plaintiff was in the car under the steering wheel impaled on the gear shift lever. Rogoff said of defendant: “He asked, ‘How are the people, where are the people in the other car?’ I said, T am here.’ And then he said to the effect, T am sorry, it was her fault,’ a number of times. He was conscious at this time. I would say possibly within ten minutes he did go into a state of shock, but before he went into a state of shock he repeated that a number of times, saying, T am sorry, I am sorry. It is her fault.’ ” Miss Klein’s testimony (by deposition) was : “And he was laying there and he kept saying, ‘What happened to the other car? What happened to the other people?’ We tried to tell him we were the other people and he was more or less incoherent for a second and then he seemed to realize what happened and he kept saying, ‘Don’t blame the other people. She lost control of the car.’ ” As to defendant’s condition Rogoff said: “Then he started to shudder. Tome, I imagine, going into a state of shock. Very cold, and so forth.” Miss Klein said he had the appearance of having a chest injury and was bleeding but was “coherent at first.” Defendant had a serious concussion of the brain and was in the hospital for seven days, because of this and other injuries.

The only objection made at the trial, to Rogoff’s testimony about this, with the court’s ruling, was as follows: “Mr. Yonke: I am going to object to that for the reason it is hearsay, made out of the presence of the plaintiff and self-serving. The Court: The objection will be overruled on the ground that the statement is res gestae.” The ground stated in plaintiff’s motion for new trial concerning this testimony of Rogoff was as follows: “2. Because the Court erred in improperly and over the objection of plaintiff permitting Witness Martin Rogoff and Witness Harriett Klein Sklar, by her deposition, to testify concerning the statements and remarks made by defendant, William Hanson, at the scene of said collision;' that said remarks and statements of defendant, William Hanson, constituted hearsay evidence, were self-serving statements, not a part of the res gestae and made at a time when plaintiff could not because of her physical condition refute same.”

The objection made to Miss Klein’s testimony hereinabove set out was: “I am going to object to the rest of that answer because it is hearsay, made outside the presence and hearing of the plaintiff, and is a self-serving statement by the defendant, and not an admission against interest by him, and prejudicial to the plaintiff.” In the motion for new trial, it was said that her answer “was immaterial and irrelevant; was hearsay, was self-serving, not responsive to the question, not an admission against interest by defendant, not part of the res gestae and highly prejudicial to plaintiff.”

Therefore, we can find no error in the ruling of the court that this evidence was admissible as res gestae. While the part of the statement of Rogoff about “fault”, which came in after the ruling, may be classed as a conclusion, no such objection was made either at the trial or in the motion for new trial; and after his answer no motion to strike was made on this or any other ground. In 88 C.J.S. Trial § 1SS, p. 302, it is said: “As a general rule testimony consisting of mere conclusions of the witness must be considered and given its due probative value, when admitted without objection, and such evidence will be sufficient to establish a fact, support a finding based thereon, and may support a verdict.” It is not necessary to go that far in this case because there was sufficient evidence to support a verdict for defendants on their counterclaims without these statements, so they were only corroborative of other evidence supporting the claim that plaintiff was driving rather than being essential to make a jury case for them.

Furthermore, the issue in this case was not the “fault” of the driver but was: who was driving? As said in plaintiff’s brief: “There was no real issue as to the negligence of the driver.” (The Cadillac came up behind the Rogoff car at high speed, estimated up to 90 miles per hour, swerved to the left off the pavement, then came back sharply to the right striking the Rogoff car and then went to the left over the embankment.) The testimony of Miss Klein said nothing about plaintiff’s “fault” but was “she lost control of the car.” A similar statement (“a car crowded us off the road”) was held admissible in Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 101 A.L.R. 1190. “The essential test of this class of statements is spontaneity.” Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781. As stated by Wigmore: “This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.” 6 Wigmore 135, Sec. 1747. (See also Monical v. Armour & Co., Mo.Sup., 307 S.W.2d 389, 392; Cummings v. Illinois Central R. Co., 364 Mo. 868, 269 S.W.2d 111, 118, 47 A.L.R.2d 513; Smith v. Southern Illinois & Missouri Bridge Co., 326 Mo. 109, 30 S.W.2d 1077, 1086.) Our conclusion is that defendant’s statements were admissible under this principle.

Plaintiff also claims error in permitting defendant to show a prior consistent statement of witness Rogoff in accord with his testimony at the trial after Rogoff had admitted, on cross-examination, making a statement inconsistent with his testimony. This was concerning the res gestae statements (“I am sorry, it was her fault”) which Rogoff testified were made by defendant several times at the scene of the accident. On cross-examination, Ro-goff was asked about statements he made to plaintiff’s counsel, taken by a court reporter on November 25, 1957. After Rogoff said he did not remember the statements he made he was further cross examined, as follows:

“Q Then I will ask you whether or not you made this answer to this question: ‘Did he get up or was this while he was lying down? Answer: No, he never did get up as far as that goes. And he mentioned several times that it was their fault, and he kept saying he was sorry, and I didn’t say much to him, and that is about- — he didn’t say too much.’ Did you make that answer to that question back on November 25, 1957? Would you like to look at that one? A I can’t deny it, sir. Q Well, isn’t it a fact that he said it was their fault, not her fault? Your memory was a lot better in November, 1957, right after the accident, than it is three years later, isn’t it ? A Certainly. My memory was certainly better at that time. Q So you did make this answer to this question, did you not? A Yes, at that time. Q Did you answer this question with this answer: ‘Did he say anything about who was driving the automobile? Answer: No, I don’t believe so. I can’t remember any exact statements as far as that goes about saying — only as far as the fault of the automobile.’ Did you make that answer to that question? A As I say, I can not recall at this present time. If I signed that, and said I made those statements—
“Mr. TRUSTY: Wait a minute. Did you sign it?
“The WITNESS : I don’t know.
“Q (By Mr. Yonke) I don’t believe you signed it, but I can bring the court reporter in. A No, I am not saying — at that time I was questioned and if that was my answer, that was the answer. * * * Q Did you say all you remember he said was he was sorry, it was their fault, did you make that answer to that question ? A As I say, I can not deny it if this was recorded at that time. As to my saying it, I can not deny it. Q Well then, isn’t that the true fact, that he didn’t say who was driving, whether he was driving or the lady was driving at that time, and all he said was that he was sorry, isn’t that what he did say at that time, as you remembered back in November, 1957? A As far as I remember, from what I heard from Mr. Hanson when he asked about the other party, I said, T am here,’ he said, T am sorry,’ he said, ‘It was her fault.’ That is what I remember. Q So you are saying none of these things are correct that are in this statement, none of these answers that you made to these questions are correct, is that what you are saying? Isn’t it more likely you would have remembered back in November, 1957, better than you do now? A It is possible I would remember. I also made a statement the day after the accident. Q You are not denying you made these statements? A I am not denying it, no.”

On redirect examination, it was shown that in a statement taken October 11, 1957 (the day after the accident) Rogoff stated of defendant: “[H]e asked about the other people, and I said, T am here,’ (indicating), and he said, T am sorry it happened.’ He said, ‘It was her fault.’ That is what he said. He repeated that a number of times.” Plaintiff objected to this as improper rehabilitation and this is the basis of her claim of error.

Plaintiff relies on Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659, 666, holding that a prior consistent statement becomes inadmissible where the witness admits making the inconsistent statement because the prior consistent statement is admissible only to rebut the truthfulness of the impeaching evidence, namely, the inconsistent statement which it

is claimed was made by the witness. See 4 Wigmore 198, Sec. 1126. However, in that case, the inconsistent statement was admitted by the witness to have been made deliberately and made falsely for the witness’ own purpose. In that case, the witness had impeached herself by her own admission of intentionally making a false statement and no other statements could change that fact or remove such self-impeachment. It is evident that we have here a different situation, more like that in McElhattan v. St. Louis Public Service Co., Mo.Sup., 309 S.W.2d 591, 595, where the witness “testified that he did not remember making the inconsistent statement.” It is our view, that this is the effect of Rogoff’s testimony taken as a whole. Furthermore, the statement “it was their fault” was not completely contradictory of the statement “it was her fault” because by it defendant was not placing all the blame on himself and it appears from all the evidence that mainly defendant was making it plain he was placing no blame on the people in the other car involved. Certainly Rogoff did not admit intentionally making a false statement and could have inadvertently used a different word in this statement. Our rule as to rehabilitation has been more liberal than that of many/states. See annotations 140 A.L.R. 21, 75 A.L.R.2d 909; 58 Am.Jur. 461, Witnesses, Secs. 825-833; 98 C.J.S. Witnesses Secs. 624-626, p. 637; see also cases cited in the Williams case (245 S.W.2d 1. c. 664) and the McElhattan case (309 S.W.2d 1. c. 594). We hold there was no error in admission of the prior consistent statement under the circumstances shown.

Plaintiff claims error in unduly limiting the cross-examination of Miss Klein as to matters plaintiff says went to show her bias and prejudice, citing State v. Pigques, Mo.Sup., 310 S.W.2d 942; Houfburg v. Kansas City Stock Yards Co. of Maine, Mo.Sup., 283 S.W.2d 539; Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383, and similar cases. Miss Klein’s testimony was by deposition and the court, in chambers, went over the deposition with the lawyers, ruled on objections, and indicated the parts that could be read and the parts that could not. It appeared that Miss Klein had made a claim for her injuries and defendant’s lawyers represented the Insurance Company having the liability insurance on the Cadillac. (So far as appears Miss Klein’s injuries would be covered regardless of whether defendant or plaintiff was driving the car.) We have read the cross-examination and the court’s rulings and find no prejudicial error in them. From the cross-examination admitted it was shown that Miss Klein came from California (where she was living after being married) to give her deposition and that defendant’s lawyers arranged for payment of the expense of this trip. It was also shown that Miss Klein had not hired a lawyer but that she and her mother had talked to one of defendant’s lawyers about her claim (before knowing he was representing defendant) ; that he was the only lawyer she had talked to about her claim; and that she had gone to a doctor designated by him for examination. Plaintiff’s counsel sought to go into more detail about this but some of the excluded cross-examination would have tended to inject the matter of insurance by showing as a requirement of settlement she was to be examined by doctors designated by the company and other matters concerning insurance. A lot of it concerned the extent of Miss Klein’s injuries, their treatment and the extent of her later activities, which would have been relevant in a case brought by her but seem wholly immaterial in this case. Plaintiff’s contention that this was relevant on the issue of her ability to see the persons in the Cadillac at the time of the collision cannot be sustained because this testimony showed that Miss Klein did not notice any discomfort from the accident until the next day (the basis of the trial court’s ruling) and because her opportunity to see who was in the Cadillac necessarily was prior to sustaining injuries from the collision. The trial court has broad discretion as to cross-examination-with reference to collateral matters. (Siegel v. Ellis, Mo.Sup., 288 S.W.2d 932, 940; Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, 682; Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 107, 109.) Our conclusion is that there was no abuse of discretion as to these matters.

Plaintiff also claims error in permitting defendant’s counsel to pursue a line of questioning of a highway patrolman leading to questions that would be improper. This was cross-examination of the patrolman, called by plaintiff, who had come to the scene of the accident. He was asked if he tried to make an investigation to determine, from the people there, who was driving the Cadillac. (He had previously been asked on direct if he determined who was driving the other car and stated it was Rogoff.) The court permitted him to be asked if they told him anything about who was driving the Cadillac and he said they did. He was then asked, “Who did they tell you was driving the Cadillac” and the court sustained plaintiff’s objection that this called for hearsay. The patrolman’s report then was offered but was refused on plaintiff’s objections of hearsay and conclusions in its contents, made out of the presence of the jury. Plaintiff relies on Myers v. Moffett, Mo.Sup., 312 S.W.2d 59. However, in that case, the trial court sustained a motion for new trial, where defendant’s counsel, although the court had several times sustained objections to such questions and told counsel to refrain from asking such questions, “persisted in pursuing the same lines of interrogation” and “by overriding the trial court’s rulings, defendant’s counsel was, by his improper questions over and over again stressing and in effect insinuating or obliquely arguing to the jury a decisive probative effect” of matters the court had correctly ruled improper. We held that these actions, together with improper jury argument, were sufficient grounds for sustaining the court’s order for a new trial. We have no such situation here and the trial court, with the best opportunity to judge the effect of this incident, overruled the motion for new trial. (See also Ryan v. Campbell “66” Express, Inc., Mo.Sup., 304 S.W.2d 825, 829.) We hold there was no prejudicial error shown in connection with this cross-examination.

Plaintiff also claims error in refusing its offer, as rebuttal evidence, of records of the U. S. Weather Bureau to show that on October 10, 1957, about 10:00 P.M. it was completely overcast. Plaintiff said he was offering it in rebuttal of the testimony of Miss Klein but she had only said she did not remember about the darkness but “it was nighttime * * * 10:30”; and that she did not remember if the moon was out. Defendant’s witness Rogoff testified: “It was a dark night.” Plaintiff’s witnesses, Dr. Smith and the patrolman both said it was dark; the patrolman also said: “It was clear and dry.” The court ruled this record was not rebuttal in view of Miss Klein’s statement that she did not remember. Plaintiff now says it was in rebuttal of Miss Klein’s “testimony that she could and did see the driver of the Cadillac although it was dark.” (Actually she only said she saw a man at the right window of the Cadillac.) “A plaintiff is not entitled as of right, on the stage of rebuttal, to the admission on his behalf of evidence merely cumulative or confirmatory of that already put in by him in his original case.” Peters v. Dodd, Mo.Sup., 328 S.W.2d 603, 610. The court’s ruling was technically correct so there is no basis for plaintiff’s claim of error.

Plaintiff also claims error in sustaining defendant’s objection to part of his argument but this is without merit because in stating his view as to the instruction on her burden of proof, counsel left out the element of credibility. He recognized this himself when the objection was made and restated it to include credibility.

Plaintiff further claims error in giving Instruction 7, at defendant’s request, in which it was stated in the first sentence: “ * * * it is your duty to decide the issues strictly upon the evidence introduced before you and in strict accordance with the written instructions of the Court, * * The second sentence cautioned against being affected by passion, prejudice or sympathy. Plaintiff says the clause “strictly upon the evidence” deprived her of the inferences to be drawn from the evidence. This is a most strained construction and as defendant points out Instruction 1, given at plaintiff’s request as the main verdict-directing instruction, commenced: “ * * * if you find and believe from all the evidence in the case * * * Likewise Instruction 2, given at plaintiff’s request concerning award of damages, commenced: “ * * * if under the evidence and other instructions given to you in this case * * * Also Instruction 5 stated plaintiff’s burden of proof as “the greater weight of the credible evidence”; and Instruction 6, concerning burden of proof, stated: “ * * * by the term ‘greater weight or preponderance of all the credible evidence in the case’ is meant that evidence which is most convincing to the minds of the jury.” Both were given at plaintiff’s request and thus no instruction requested by plaintiff said anything about inferences. However, Instruction 9 stated plaintiff’s burden of proof as “by the greater weight of the credible evidence and all reasonable inferences deducible therefrom"; and Instruction 13, concerning burden of proof, stated: “[Y]ou can not base a verdict or any finding exclusively upon guesswork, surmise and speculation outside of and beyond the scope of all the credible evidence in the case and all reasonable inferences deducible therefrom.” Both were given at defendant’s request. Therefore, when the instructions are all considered, and in view of the submission plaintiff requested, the complaint made cannot be held to show prejudicial error.

Plaintiff finally says:. “Although it might be said that any of the matters complained of heretofore would not alone be sufficient to warrant the granting of a new trial, plaintiff contends that all of these matters taken together constitute reversible error,” citing Myers v. Moffett, Mo.Sup., 312 S.W.2d 59, 65; Ryan v. United Parcel Service (2 Cir.), 205 F.2d 362, 365; Faught v. Washam, Mo.Sup., 329 S.W.2d 588, 604. This contention cannot be sustained because we have determined that plaintiff’s claims of error cannot be sustained and that several of them are wholly without merit.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: COIL, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James BLAND, Appellant.
    No. 48888.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Wm. Bruce Kopper, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Asst. Atty. Gen., for respondent.
   COIL, Commissioner.

A jury found James Bland guilty of robbery in the first degree and the trial court, having found defendant theretofore had been convicted of two felonies as charged, sentenced him to twenty years’ imprisonment. Bland has appealed. Inasmuch as he has filed no brief we shall examine the assignments of error contained in his motion for new trial.

Assignment 5 asserts, inter alia, that the evidence was insufficient to support the conviction. The state’s evidence tended to show that about 8:30 a. m. on December 27, 1960, two men, wearing stocking masks and each displaying a gun, entered Luck-ett’s Lounge at 4616 Delmar in St. Louis. One went behind the bar and placed a knife at the throat of a woman employee, who complied with his direction that she open the cash register and place the money {approximately $25) and certain bottles of liquor in a blue canvas bag provided by him. The other masked man took money from a ■customer and, after ordering all present into the men’s room, both robbers departed. About three hours later the police arrested the defendant and one Arnet Toran. At the time defendant was carrying the blue canvas bag which still contained the bottles of liquor which previously had been taken and a sports jacket in the pocket of which were two stocking masks similar to the ones worn by the two men. Certain items of clothing worn by the defendant and Toran when arrested were similar to items of clothing worn by the two robbers. Defendant and Toran were positively identified as the men who took the money and liquor from Luckett’s.

Other evidence will be stated as necessary to dispose of other assignments in defendant’s new trial motion. The foregoing brief summary, however, is sufficient to demonstrate that there was substantial evidence from which a jury reasonably could have found that defendant was guilty of robbery in the first degree; i. e., that he took the property of another from that other’s agent in charge thereof, against the will of the agent and by putting her in fear of immediate injury to her person. Section 560.120 RSMo 1959 and V.A.M.S.

Defendant’s newf trial assignment 5 insofar as it avers that the verdict and judgment were against the weight of the evidence and were based only on prejudice and conjecture is too general to have preserved anything for appellate review.

New trial assignment 1 is that the trial court erred in admitting in evidence three exhibits: 5, a torn one dollar bill which had been taped; 9, a pair of leather combat boots; and 10, the sports jacket found in the blue bag at the time of defendant’s arrest. Defendant made no objection to Exhibits 5 and 9 and, consequently, there is nothing before us for review as to those. Furthermore, it is apparent that both were admissible. The state’s evidence showed that part of the $25 taken from the cash register was a one dollar bill which had been taped in the same manner as the dollar bill found in defendant’s possession at the time of his arrest. The combat boots were being worn by Toran at the time of his and defendant’s arrest and were similar to the boots worn by one of the robbers in Luckett’s Lounge. Defendant objected to Exhibit 10, the sports jacket, on the ground that there was no evidence that it was at the “scene of the crime.” No such objection has been urged in the motion for new trial. In any event, however, the evidence showed that the bag in Bland’s possession at the time of his arrest was the same bag into which was placed the money and the liquor taken from Luckett’s Lounge and while there was no testimony that the sports jacket was in the bag at that time, the evidence did show that the two stockings which were used by the robbers were found in a pocket of the jacket which was found in the blue bag at the time defendant was arrested. The trial court did not err in admitting Exhibit 10.

Arnet Toran had been jointly indicted with defendant. He secured a severance and only Bland was on trial. Mrs. Toran, Arnet’s mother, was defendant’s witness. On cross-examination the state showed that defendant shared a 3-room apartment with Mrs. Toran, paid for part of the food, was the boss of the place, and that he and Mrs. Toran had shared the same quarters for the past two years, including the time in 1958 when defendant had been in prior trouble.

Defendant’s new trial assignment 2 is that the court erred in permitting the state to show that defendant and Mrs. Toran lived together and to unduly dwell on the subject in an attempt to discredit Mrs. Toran’s testimony; that if the testimony was proper as showing a relationship which might affect the credibility of Mrs. Toran as a witness, it was improper to imply that the witness and defendant were occupying the same bed. We have reviewed the testimony in question and we find no undue emphasis upon or dwelling upon the relationship between Mrs. Toran and defendant or any improperly phrased question in that respect. It was proper for the state to have made the showing indicated as tending to affect the credibility of Mrs. Toran’s testimony. State v. Pigques, Mo., 301 S.W.2d 942, 947[7, 8]; State v. Cole, Mo., 213 S.W. 110, 113[7],

Assignment 3 complains that the state’s jury argument was improper and prejudicial in two respects. One of defendant’s witnesses was presented as a lady who was deaf and dumb. The questions and her answers were written. She gave testimony which supported defendant’s alibi. In closing argument, state’s counsel, in talking of that witness’s testimony, pointed out that there was no evidence indicating or proving that the witness was actually incapacitated; that they (the jurors) had no way to know, just as he didn’t know, whether she was “putting on” a “silent act”; that it could have been another “Perry Mason picture” as far as they knew. Defendant’s counsel interjected, “Oh, your Honor.” Whereupon the trial court stated that state’s counsel was entitled to analyze the evidence and to make such argument as he deemed appropriate and suggested that there was no occasion for defendant’s counsel to have arisen. The state’s attorney then proceeded to point out that there was no medical evidence of the witness’s condition, but that even if she were deaf and dumb, that fact would not make her more believable than any other witness.

We cannot determine from the record whether counsel intended to state an objection and a reason therefor and was cut off by the court, or whether he intended to say nothing more than he did say. In any event, the fact is that defendant’s counsel made no objection, before or after the court’s statement, and did not request the court to strike the argument. Under the circumstances defendant is in no position to complain of the incident.

The other matter complained of in assignment 3 was that the trial court apparently permitted state’s attorney to demonstrate to the jury that the blue bag was not large enough to contain as many bottles of liquor as defendant’s evidence showed were in it at the time of the arrest. The state’s evidence was that nine bottles of liquor had been taken and that when the parties were arrested there were nine bottles of liquor in the bag. Defendant and his coindictee Toran each testified that at the time of their arrest there were more than nine bottles. Toran said there was almost twice as much liquor in the bag as was produced as an exhibit at the trial, and the defendant testified there were at least three more bottles in the bag than were displayed at the trial. While it is not clear from the record exactly what the state’s counsel did insofar as demonstrating the capacity of the bag, it is clear that counsel was permitted to place other bottles in the bag in addition to the bottles which were exhibited in evidence as having been all of the bottles in the bag at the time of the arrest. Apparently the purpose was to show that the bag would not hold the additional bottles which defendant’s evidence showed were in it. Defendant complains in his motion for new trial that he had no opportunity to demonstrate to the jury that the bag would in fact hold all the bottles (if properly placed) which the state’s attorney had attempted to put in it and consequently the demonstration amounted to the introduction of evidence after the evidence had been closed, and deprived defendant of the right of cross-examination and thus of a fair and impartial trial.

The blue bag and the bottles of liquor taken at the time of the robbery were exhibits in evidence. It was proper for the state to argue as tending to affect the credibility of defendant’s evidence that the bag would not hold the number of bottles defendant’s witnesses claimed were in it at the time of defendant’s arrest. It appears that there was no impropriety in permitting counsel to use exhibits in evidence as well as some bottles not in evidence to illustrate the point being argued. See Boese v. Love, Mo., 300 S.W.2d 453, 461 [9, 10].

Defendant claimed in assignment 4 that the trial court erred in permitting the state in rebuttal to read in evidence the court records of his prior convictions for the assigned reasons that such gave undue weight to the prior convictions, that the convictions should not have been considered by the jury in its deliberations, and that the convictions had been admitted on direct and cross-examination. The defendant took the witness stand and, therefore, it was proper for the state to cross-examine him concerning prior convictions. Defendant, on direct as well as on cross-examination, admitted that he had been charged with armed robbery in 1958, had pleaded guilty to a lesser charge (the record shows it was assault with intent to rob without malice) and that he had served the sentence he received. On cross-examination he was asked whether there were two charges. He answered that one charge was all he knew of; that there were not two warrants; that he recalled pleading guilty to only one charge. He also said that he' pleaded guilty to a charge of armed robbery and whether there were two charges or • one, he did not know. As noted, defendant had riot pleaded guilty to a charge of armed robbery but, according to the record, had pleaded guilty to two separate charges of assault with intent to commit robbery without malice. In view of his testimony, which, reasonably interpreted, could have been considered by the jury as a denial by defendant that he had theretofore pleaded guilty to two separate charges, it was proper for the state to show in rebuttal that he had in fact been priorly convicted of two separate felonies in two separate cases. State v. Harrison, Mo., 24 S.W.2d 985, 988.

Defendant’s assignment 6 is that instructions 1 and 2 when considered together were erroneous in that instruction 1 unnecessarily informed the jury that there was a codefendant and emphasized the evidence of the codefendant’s guilt, and that instruction 2 emphasized the jury’s duty in finding defendant guilty and failed to emphasize the jury’s duty to find defendant not guilty if he had not been proved so beyond a reasonable doubt. There is no merit in either of these positions. The preface to instruction 1 was in usual form and simply informed the jury that the state had indicted James Bland and Arnet Toran jointly, charging them with the offense of robbery in the first degree, that a severance had been granted and that Bland alone was on trial, that he pleaded not guilty, thereby raising an issue of fact which was to be determined by the jury from all the facts and circumstances in the case. See State v. Lawrence, Mo., 280 S.W.2d 842, 848[6]. Toran testified in the case and it was clear from his testimony that he had been charged with having committed the robbery along with defendant. The portion of the instruction in question made no reference to the guilt of the co-defendant or to evidence thereof. Instruction 2 was a usual instruction which hypothesized the facts necessarv for the jury to find beyond a reasonable doubt in order to find defendant guilty of robbery in the first degree and ended with the direction that if it so found the facts it would find the defendant guilty and “You will acquit defendant if you fail to find all of the aforesaid facts as stated.” The instruction does not as charged overemphasize the jury’s duty in finding defendant guilty or fail to make clear the jury’s duty to find defendant not guilty if it failed to find the hypothesized facts beyond a reasonable doubt.

Defendant’s final assignment is that he was prejudiced by the statements made at the time the trial court overruled two objections made in good faith by his counsel to the effect that there was no basis for the objections, indicating to the jury that perhaps counsel was not properly defending his client. The record shows that the state’s attorney was arguing the alleged inconsistencies in defendant’s evidence. He •said that the defendant had taken the stand and told the jury that “Mr. Hyde told him •over the telephone”; whereupon defendant’s counsel objected that it was improper for counsel to quote testimony from memory. The court overruled the objection and commented, “You have no basis for your ■objection whatsoever.” Later in his argument, state’s counsel was calling the jury’s •attention to the court’s instruction on reasonable doubt and said that it was to acquit if it had a reasonable doubt, but that the reasonable doubt ought to be a substantial ■one touching defendant’s guilt and not a mere possibility of his innocence. Defendant’s counsel began an objection and the ■court interrupted and overruled it, saying, '“There is no basis for objecting.” It seems .apparent that in both instances there was in fact no valid basis for defendant’s counsel’s ■objection. There is nothing in the record to indicate that the state’s attorney in the •first incident above mentioned was attempting to do more than state to the jury what 'he remembered the evidence to be. In the •second instance there was no basis for an ■objection because counsel was correctly telling the jury the content of one of the court’s instructions. Perhaps it would have been ■preferable for the trial court to have overruled the objections without indicating that there was no basis for them, but there is nothing in the record which indicates that defendant was prejudiced in any manner by these two incidents involving an implied reprimand of his counsel.

We have found no prejudicial error in connection with those matters which we review upon the record even though defendant has made no allegation of error with respect to them.

The judgment is affirmed.

HOLMAN, and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Bill WORLEY, Appellant.
    No. 49000.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Bill Worley, through his next friend, a lay man unlearned in Law.
    Thomas F. Eagleton, Atty. Gen., Lynn B. Nelson, Sp. Asst. Atty. Gen., for respondent.
   HOLLINGSWORTH, Judge.

The tavern of Mr. and Mrs. Henry Sauer, located in Laredo, Grundy County, Missouri, was burglarized on the night of January 17, 1961, and money, cigarettes and other merchandise of the total estimated value of $377.00 were stolen from the premises. On the same night the Hathaway Grocery, at Spickard, Grundy County, was also burglarized. Defendant Bill Worley and one Richard Earl Jones were arrested and charged with the commission of these offenses. By an amended information thereafter filed, defendant was separately charged with the offenses of burglary in the second degree of the Sauer Tavern with intent to steal, as that offense is defined in Section 560.070 RSMo 1959, V.A.M.S. (to which revision all statutory references herein are made), and with stealing from said tavern the hereinafter more particularly described personal property, as that offense is defined in §§ 560.156 and 560.110. The amended information also invoked the provisions of the habitual criminal act, § 556.280, by alleging a prior conviction of defendant of burglary.

The jury found defendant guilty as charged. The trial judge, after hearing evidence out of the presence of the jury, also found that defendant had been convicted of the prior felony as alleged in the amended information. His punishment was assessed at imprisonment for a term of ten years on the charge of burglary and a term of five years for the crime of stealing. The court further ordered, however, that said sentences run concurrently and not consecutively. Defendant has appealed.

Although represented by court-appointed counsel at the trial, the only brief filed in defendant’s behalf in this court is a document entitled “Appellant’s Brief, Bill Worley, through his next friend, a lay man unlearned in Law.” That document asserts the insufficiency of the evidence to support the verdict and thereafter pursues a course of argument clearly beyond and independent of the grounds assigned in the motion for new trial. If that document were considered in the light of S.Ct. Rule 28.02, V.A.M.R., all assignments in the motion for new trial, except the contention also made therein that the evidence was insufficient to support the verdict, would be deemed waived or abandoned. However, we will also review the other assignments in the motion for new trial and portions of the record, as required by Rules 27.20 and 28.02.

The evidence to connect defendant with commission of these crimes was entirely circumstantial. It warrants a finding of the following facts: The tavern, which was owned and operated by Mr. and Mrs. Sauer, also included a restaurant and laundry. It closed and its doors and windows were locked about midnight on the night of January 17. The fact that it had been burglarized was discovered about 3:00 to 3:30 o’clock on the morning of the 18th. State Patrolman Julian LePage had been called that morning by the Sheriff of Grundy County to investigate the burglary of the Hathaway Grocery at Spickard. While at Spickard, he learned of the burglary of the Sauer Tavern at Laredo. Investigation made at the Sauer Tavern revealed that the front door and two inner doors had been pried open by a tool with a chisel-type end. Further investigation of the premises revealed that about 80 cartons of Pall Mall cigarettes purchased by Mr. and Mrs. Sauer from Bond’s Wholesale House in Trenton had been stolen; the cash register had been opened and approximately $50.00 stolen from it; a coin-changing machine had been pried from its fastening on the blue plaster wall and had been forcibly opened; the doors of a pinball machine and a music box had also been forcibly opened and coins in each of these containers had been stolen. These articles, together with a specimen of the blue plaster wall from which the coin-changing machine had been removed (and wood from the doorsills of the Hathaway Grocery at Spickard), were delivered to Kenneth Miller, a State Highway Patrolman assigned to the laboratory of that institution, for microscopic examination.

Richard Jones lived in Lebanon; defendant lived near Lebanon. They are cousins. Max Hayden and his wife, Eula, are the uncle and aunt of both defendant and Richard Jones. The Haydens came to live in Laredo about two years prior to the burglary. Richard Jones worked at various intervals of time for Max Hayden and they, Richard and Max, frequented the Sauer Tavern. Defendant was also seen on occasions with Richard Jones in and around Laredo and they were together at the Max Hayden home about 8:00 to 9:00 o’clock on the night of the burglary.

On the date of the burglary, the night of January 17, 1961, Norman E. Tinnin, a State Patrolman, was stationed at Lebanon. He knew defendant and Jones and, for about two weeks prior to the burglary, had' observed them riding together in a black 1951 4-door Studebaker sedan driven by defendant. On the morning of January 17, Patrolman Tinnin saw this car parked in an alley near the home of Richard Jones’1 mother in Lebanon. At that time it bore 1960 Johnson County, Kansas, license plates, JO 53 859.

On the night of January 17, between 9:00 and 10:00 o’clock, Gail Tate, manager of the M.F.A. Central Co-operative Store at Laredo, drove his car from Trenton to. Laredo. On that trip he saw a 1951 black 4-door Studebaker car “back out” of a gate that entered his property. He followed' the car into Laredo, during which time he “jotted down” the license number attached to it, which was the aforesaid Kansas plate JO 53 859. He also saw that there were at least two men riding in the car. He related these facts to Patrolman LePage the following morning after hearing of the aforesaid burglary. About 3:00 o’clock on the morning of January 18, John Creten,. who lives at and operates the “Trenton Bowl”, saw a 1951 black Studebaker sedan-bearing a Johnson County, Kansas, license,, drive twice around his premises. Its lights, were turned off. At least two men were in it. On the same day, January 18, Patrolman LePage, after talking with Gail Tate, went with Sheriff Mapes to the home of Max Hayden. They there observed in front of the Hayden home a 1949 Plymouth sedan without any license plate on it.

About midnight on January 21, Patrolman Tinnin and other officers saw the 1951 black Studebaker parked at the home of defendant’s parents about eight miles from Lebanon. At that time it bore a 1960 Missouri license plate, No. A96-^185. Investigation revealed that that plate had been issued to defendant’s uncle and aunt, Max and Eula Hayden, of Spickard, Grundy County, for a 1949 Plymouth sedan. Tinnin and other officers thereafter continued their observation of the black Studebaker. On January 23, Tinnin and Lebanon Police Officer Bill Marley went in search of defendant to arrest him. They found the black Studebaker parked at the residence of Richard Jones’ mother in Lebanon. There was then no license plate whatever attached to it. In the car they found a combination lug and tire tool, a pinch bar, and a partially consumed carton of Pall Mall cigarettes. These cigarettes bore the same serial number as those purchased by Mr. and Mrs. Sauer from the Bond Wholesale House and stolen from the Sauer Tavern. Defendant was arrested and the Studebaker car and the aforesaid items found therein were seized. The items found in the car were delivered to Patrolman Julian LePage, who, in turn, delivered them to State Patrolman Kenneth Miller for examination and microscopic study at the State Highway Patrol laboratory. Defendant admitted to Patrolman Tinnin (and other officers) that he had been in Grundy County on January 17, 18 and 19, and that the Studebaker car belonged to him. He said he would get a proper license for it. On January 25, defendant, in talking with Patrolman LePage, admitted that he, driving the Studebaker, left Lebanon at approximately noon on January 17, accompanied by Richard Jones; that they arrived at Laredo about dark; but further said that they drank beer at the Sauer Tavern until 9:00 or 10:00 o’clock and then went to the Charley Dye Tavern on Highway 6, west of Trenton; and that they stayed at the Dye Tavern until 11:00 or 11:15 p. m., and then drove to Kansas City. On March 16, 1961, upon being released from jail on bond, defendant obtained from the Automobile Registration Department of Missouri a certificate of title and a “new license” for the 1951 black Studebaker, for which he remitted $1.00 and $20.00, with tax of $1.00, total $22.00. The application made by him recites that he paid $50.00 for the car and that he had purchased it “Jan. 1961” from Paul A. and Edna Freeland, “K.C., Mo.”

Microscopic examination of the pinch bar found in defendant’s car at the State Highway Patrol laboratory revealed small amounts of blue painted plaster impressed upon its edge. The plaster found on that bar had paint on it of the color and composition of the paint on the plaster taken from the Sauer Tavern wall to which the coin changer had been attached. The tire tool and the pinch bar also bore minute microscopic traces of various types of white, green, reddish orange, yellow and more white paint, which corresponded with various coats of paint which at previous times had been applied to the plaster to which the coin changer had been attached. Comparison of each of these paints with those found on one of the tools showed them to be alike. A greenish yellow paint found on one of the tools was like the greenish yellow paint found in the interior of the coin changer. A reddish yellow paint found on one of the exhibits corresponded with a reddish yellow paint found on one of the tools. Microscopic examination of the dents found in the doorsills taken from the Hathaway Grocery showed irregularities and imperfections which corresponded with irregularities and imperfections found in the tools taken from defendant’s car; and paint found on one of these tools was like that found on the doorsill taken from the Hathaway Grocery entrance. The aforesaid exhibits were introduced in evidence and viewed by the jury during the testimony of the witness Patrolman Kenneth Miller.

There are nine assignments of error in the motion for new trial. Assignments 1, 2 and 9 deal with the contention that the evidence to connect defendant with the crimes with which he is charged is insufficient to support a finding that the pinch bar and tire tool found in defendant’s car were the tools used in the burglary of and stealing from the tavern. Assignment 5 asserts that Instruction No. 2 insufficiently defines the quantum and type of evidence required to support a valid conviction of defendant based solely upon circumstantial evidence. These four assignments may be considered together. Instruction No. 2 advises the jury that “the State is not bound to prove its case by direct evidence; that is, by the testimony of a witness or witnesses who saw the act committed and can identify the Defendant as the person who committed the act (or participated in the commission of the act with another or others) for which he is on trial, but may establish his guilt by circumstantial evidence, provided the circumstances proven by the State are consistent with each other and wholly inconsistent with innocence of the accused and incapable of explanation upon any other reasonable theory except that of his guilt and satisfy you beyond a reasonable doubt that the Defendant was present at the time of the commission of the offense, if you find an offense was committed, and participated in the commission thereof.” Contrary to defendant’s contention, the instruction has been in substance many times approved by this court and it correctly defines and advises the jury of the requisites of evidence to support a finding of defendant’s guilt of the crimes charged. State v. Brown, 356 Mo. 1037, 204 S.W.2d 729, 732; State v. Drake, Mo., 298 S.W.2d 374, 377; State v. Russell, Mo., 324 S.W.2d 727, 733. The question is, therefore, does the evidence in this case meet the requirements of the instruction ?

Giving consideration to the direct and undisputed evidence of defendant’s (and Jones’) presence in Laredo and proximity to Spickard on the night of the bur-blary in the black Studebaker car with a Nansas license plate unlawfully displayed thereon; the evidence of finding of the same car in possession of defendant at his home on January 21 with a Missouri license issued to Max and Eula Hayden unlawfully displayed thereon; the evidence of the finding of the car at Richard Jones’ home on January 23 with no license plate whatever thereon, in which car was found a partial carton of Pall Mall cigarettes of the same serial number as the cartons of Pall Malls stolen from the tavern; the evidence that plaster of the same texture and color as that on the wall from which the coin changer in the Sauer Tavern' had been pried was found on one of the tools taken from defendant’s car; and the evidence that numerous coats of paint of the colors and composition like those found on the doors of the coin and music boxes in the Sauer Tavern were also found on said tools: we are convinced that the evidence, considered in its entirety and in the light of the requirements of Instruction No. 2 above set forth, was sufficient to warrant the jury in finding beyond a reasonable doubt that the tools taken from defendant’s car were those used in consummation of the burglary and theft of which defendant was convicted; and that the circumstances herein set forth were consistent with each other, wholly inconsistent with the innocence of defendant and incapable of explanation upon any reasonable theory other than that of defendant’s guilt. The contention that the evidence does not support the verdict and judgment is overruled.

Assignments 3 and 4 challenge Instruction No. 1 on grounds that: (a) it did not conclude with the words “that unless you so find the facts to be, * * * you will find the defendant not guilty” and that the court, therefore, should have given a converse thereof; (b) it assumes that the premises were owned by Mr. and Mrs. Henry Sauer; (c) assumes that entry thereto was made with intent to steal; (d) assumes that the property stolen belonged to Mr. and Mrs. Sauer; (e) assumes the value of the property alleged to have been stolen; and (f) fails to require a finding of felonious intent on the part of defendant. The instruction first defines the issues and declares the equal guilt of persons who act together with common intent in the commission of a crime. It then directs the jury that “if * * * you believe and find from the evidence, beyond a reasonable doubt, that at the town of Laredo, Grundy County, Missouri, on or about the 18th day of January, 1961, the Defendant, either acting alone or jointly with another or others, did willfully, feloniously and bur-glariously, break into and enter premises owned by and belonging to Mr. and Mrs. Henry Sauer, with the intent to steal, then you are instructed that you should find the Defendant guilty of burglary.” It then continues: “If you further find and believe * * * beyond a reasonable doubt, that the Defendant did then and there willfully, unlawfully and feloniously take, steal and carry away approximately $50.00 in currency; 6 cases of Beer and 80 cartons of cigarettes, all being the property of Mr. and Mrs. Henry Sauer, and of an aggregate value exceeding $50.00, with the intent on the part of said Defendant to convert all of the same to his own use and to permanently deprive the said owners of the use and possession thereof then you are instructed that you should find the Defendant guilty of stealing.”

In considering the contention that the court should have given a converse of the instruction, we think it should be read in connection with Instruction No. 3, which advises the jury that the law presumes the innocence of the defendant; that such presumption continues until overcome by evidence establishing his guilt beyond a reasonable doubt; that the burden rests upon the State to prove his guilt beyond a reasonable doubt; that if the presumption of his innocence had been overcome by the evidence and his guilt established beyond a reasonable doubt, it was the duty of the jury to convict; and, if the jury had a reasonable doubt of his guilt, it should acquit him, etc. When Instruction No. 1 is considered in connection with Instruction No. 3 and it is further noted that defendant neither offered nor requested a converse instruction, we must hold that the court is not to be convicted of error in not giving a converse of Instruction No. 1. State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, 141; State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, 20; State v. Chevlin, Mo., 284 S.W.2d 563, 567.

It is also clear that Instruction No. 1 did not assume that Mr. and Mrs. Sauer owned the tavern or the property stolen therefrom; to the contrary it conditioned defendant’s guilt upon a finding that they did. Mrs. Sauer testified in substance that they did; and her testimony was neither contradicted nor disputed. That contention is likewise without merit. State v. Wyatt, Mo., 276 S.W.2d 86, 89; State v. Chernick, Mo., 303 S.W.2d 595, 599. Moreover, Instruction No. 1 shows on its face that it did not assume the value of the property stolen. In fact, however, when the jury found defendant guilty of burglary, the extent of the value of the property stolen, if of any value at all, became immaterial. § 560.110. . And, finally, said instruction also shows on its face that the jury was required to find from the evidence that defendant acted with felonious intent in the commission of both the burglary and theft.

Assignment 6 complains of the giving of Instruction No. 4, relating to the credibility of witnesses, on grounds that it had “no place in the case” and “served as an implication that the witnesses for the state were speaking the truth.” It is in conventional form. We find no wording therein indicating either that the witnesses for the state were or were not speaking the truth. There was no evidence in the case other than that adduced by the state and there was no apparent need for the instruction. But the giving of such an instruction lies to a great extent within the discretion of the trial court, and we find no prejudicial error in the giving of it in this case. See State v. Turner, Mo., 320 S.W.2d 579, 585 [11-14],

Assignment 7 is that Instruction No. 5 was prejudicially erroneous in stating to the jury that it could “render such verdict as in your conscience and reason and candid judgment seems to be just and proper.” It is contended that these words are in direct conflict with the presumption of innocence and “the law on reasonable doubt.” The trouble with this contention is that the words complained of are lifted out of context. The instruction is a purely cautionary one. It reads: “The argument of counsel is for the purpose of aiding you to reach a proper verdict in the cause by refreshing in your mind the evidence which has been given to you in this cause, and by showing the application of the law thereto; but whatever counsel may say, you will hear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the law as given by the Court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper.” It, in effect, directs the jury to base its verdict solely upon the evidence and the instructions of the court. We find no error in it. State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556, 564 [18, 19],

Assignment 8 is that evidence of the fact of the burglary of the Hathaway Grocery and evidence that a tire tool and a pinch bar similar to those found in defendant’s car were used in that burglary and evidence that defendant was arrested for stealing an automobile license plate “crept into the case” and was prejudicial to defendant. It is true that such evidence did come into the case but the record is barren of any objection made to it. In fact, counsel for defendant, on cross examination, went into detail with the witnesses concerning the findings made by State Patrolman Le-Page at the Hathaway Grocery and also the facts upon which defendant was arrested for stealing a license plate; and when the state’s attorney, after establishing without objection that certain exhibits (Nos. 9 and 10) were pieces of wood from the outer and inner doorsills of the Hathaway Store, offered said exhibits in evidence, counsel for defendant expressly stated, “No objection.” We need not here determine whether the evidence tending to show that the tire tool and pinch bar taken from defendant’s car were used in the burglary of the Hathaway Grocery would, under facts shown in this case, be competent as tending to prove that they were also the tools used in the burglary of the Sauer Tavern. (As to its admissibility for that purpose, see State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24; State v. Gillespie, Mo., 336 S.W.2d 677, 682.) It is evident that defendant's experienced counsel either believed the evidence competent or deliberately chose not to object to it on the theory that it would be unfavorable to the state or would not be of sufficient probative value to be prejudicial to defendant. The trial court presumably considered the effect of the admission of such evidence in ruling the motion for new trial and did not deem that manifest injustice or a miscarriage of justice resulted from the admission of such evidence. Neither are we convinced that the admission of it constituted manifest injustice or resulted in a miscarriage of justice within the meaning of S.Ct. Rule 27.20(c), as amended effective January 1, 1960. 4 RSMo 1959, p. 4923, V.A.M.R.

During the pendency of this case in this court, defendant, through his aforesaid “unlearned-in-the-law next friend”, filed a “Motion To File And Admit Exhibit of Evidence”, which was taken with the case. The basis of the motion is that defendant has evidence (attached affidavits of Max M. Hayden and Pauline Hayden) that Pall Mall cigarettes bearing the identical serial number as those found in defendant’s car were purchased from Patterson’s Drug Store in Spickard, Missouri, in November, 1961. This court cannot consider this so-called additional “evidence”. We decide a case on appeal solely upon the assignments preserved in the motion for new trial. State v. Johnson, Mo., 286 S.W.2d 787, 796.

The information is sufficient. The verdict is responsive to the issues and the punishment assessed by the court is within the limits provided by law. Defendant was duly arraigned and entered plea of not guilty. He and his counsel were personally present throughout all stages of the proceeding. Allocution was granted and the judgment is in due form of law.

The judgment is affirmed.

All concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Appellant, v. Eddie CROUCH, Respondent. STATE of Missouri, Appellant, v. Clyde W. JENKINS, Respondent.
    Nos. 48837, 48838.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.

      Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., for appellant.
    John R. Martin, Joplin, for respondents.
   STORCKMAN, Judge.

These two cases are prosecutions for the possession of burglary tools contrary to the provisions of Section 560.115 RSMo 1959, V.A.M.S. On defendants’ motions, the circuit court quashed the information filed in each case and discharged the defendants. The state appealed and has filed a brief in this court, but there is no brief on behalf of the defendants. On motion of the state,, the appeals were consolidated. Since the cases are identical, a reference to a pleading or proceeding in one of the cases will' include and apply as well to the other. The essential question is the sufficiency of the informations filed in the circuit court and the propriety of the ruling quashing them and discharging the defendants.

Motions to quash have been, abolished by S.Ct. Rule 25.05, V.A.M.R., but a motion so designated may be treated as a motion to dismiss. S.Ct. Rule 25.06; State v. Atkinson, Mo., 285 S.W.2d 563, 566[2]. Since the information was adjudged insufficient on a motion prior to judgment, the state is entitled to appeal.. Sections 547.200 and 547.210; S.Ct. Rule-28.04.

On November 2, 1960, separate com- ■ plaints were filed in the magistrate court. of Jasper County charging each of the defendants with the crime of possession of" burglary tools. The defendants waived formal arraignment and requested a preliminary hearing. Both were enlarged on bond. Thereafter amended complaints were • filed to which the defendants filed separate • motions to suppress the testimony of the four persons named for the reasons that the property in question was obtained from an automobile without a warrant and by - an unlawful search and seizure. Thereafter the motion to suppress was taken up > and “sustained as to all items listed except two (2) Pistols and a rubber face mask.” On December 5, 1960, second amended complaints were filed which listed additional items alleged to be burglary tools. The defendants again requested a preliminary - -examination. An entry in the transcript recites that on December 15, 1960, the magistrate sustained the motions to suppress “to same extent as to the second •amended Complaint.” The preliminary examination was set for hearing on December 28, 1960, at which time the defendants waived preliminary hearings and were: “Bound over to trial in Circuit Court of Jasper County.”

A transcript of proceedings in the magistrate court was filed in the circuit court on December 30, 1960, and on the same date informations were filed in the circuit court. The informations followed substantially the language of the second amended complaint filed in the magistrate court. On April 10, 1961, the defendants filed motions to quash the informations alleging that the judge of the magistrate court had sustained their motions to suppress “all of the items listed in said information except rifles, pistols and rubber face mask, which items, do not constitute burglary tools, and therefore said information does not state a cause of action for which defendant can be prosecuted.” On April 18, 1961, the circuit court sustained the defendants’ motions, quashed the indictments and discharged the defendants. The state appealed from this judgment of the circuit court.

For a better understanding of their contents, the information, the motion to quash, and the motion to suppress will be set out in full. The second amended complaint is omitted because it is not directly involved, but in substance it is the same as the information. The information filed in the circuit court, the validity of which is in issue on this appeal, is as follows:

“Stewart E. Tatum, Assistant Prosecuting Attorney within and for the County of Jasper, in the State of Missouri, upon his oath, informs the Court and charges that on or about the 1st day of November, 1960, in the County of Jasper and State of Missouri, Clyde W. Jenkins did wilfully, unlawfully and feloniously have in his custody and concealed about his person, rifles, pistols, rubber false faces, one sledge hammer, two screw drivers, one saw, two flash lights, one canvas tool bag, one pair crepe-sole tennis shoes, one pair gloves, one pair grip pliers, one brace, one large wrecking bar, two gas masks, one road map, seven punches, one wood bit, two small wrecking bars, two face masks, one pair dress shoes and one pair coveralls, said instruments being then and there material, implements and mechanical devices, adapted, designed and commonly used for breaking into a warehouse, store, shop, office, dwelling house, door, shutter or window of a building, or any vault or safe, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”

The motion on which the information was quashed reads as follows:

“Comes now the Defendant in the above entitled cause, and moves the Court to quash the information filed herein for the reason that the Honorable Enos Curry has heretofore sustained a motion to suppress all of the items listed in said information except rifles, pistols and rubber face mask, which items, do not constitute burglary tools, and therefore said information does not state a cause of action for which defendant can be prosecuted.
“WHEREFORE defendant prays the Court to quash this information.”

The judge alleged to have sustained the motion to suppress is a magistrate of Jasper County, but that fact does not appear from the transcript. The motion to suppress filed in the magistrate court is as follows:

“Comes now the defendant and moves the Court to suppress any and all testimony of Walter Flemmer, Jim Miller, John Showers and Gene Eichel-berger in regard to any property obtained from a 1957 Oldsmobile on or about November 2, 1960, for the following reasons:
“1. That the search and seizure were made without warrant and without other lawful authority;
“2. That said property was obtained by an unlawful search and seizure and in violation of the rights of the defendant under Section Fifteen of Article One of the Constitution of Missouri and Amendment Fourteen of the Constitution of the United States.
“WHEREFORE, defendant moves the Court to suppress said testimony.”

In challenging the sufficiency of the information, it is apparent that the defendants place some reliance on the fact that their motions to suppress had been sustained in the magistrate court.

S.Ct. Rule 23.02 and .§ 544.250 provide that no information charging the commission of a felony shall be filed against any person unless the accused shall first have been accorded the right of a preliminary examination before a magistrate in the county where the offense is alleged to have been committed. The accused may waive the preliminary hearing as was done in this case. If upon preliminary examination it appears that a felony has been committed and that there is probable cause to believe the accused guilty, the magistrate shall hold him to answer in the court having jurisdiction of the offense. S.Ct. Rule 23.-08; §§ 544.410 and 544.420, RSMo 1959, V.A.M.S.

The waiver of a preliminary examination is the same in legal effect as if a preliminary examination had been held and a finding made by the magistrate that a felony had been committed and that there was probable cause to believe that the accused was the offender. S.Ct. Rule 23.02; State v. Thomas, 353 Mo. 345, 182 S.W.2d 534, 538-539[3]; State v. Layton, 332 Mo. 216, 58 S.W.2d 454, 457[4]; State v. Gartland, 304 Mo. 87, 263 S.W. 165, 168[1]; State v. Jack, Mo., 209 S.W. 890[2]; 22 C.J.S. Criminal Law § 333b, p. 856. In this, state of the record the defendant was properly required to appear in the circuit court and the prosecuting attorney was entitled to-file the information.

A preliminary examination before a magistrate is in no sense a trial but is. simply a course of procedure designed to. prevent a possible abuse of power by the' prosecution. Lambus v. Kaiser, 352 Mo. 122, 176 S.W.2d 494, 497[6]; State v. McKinley, 341 Mo. 1186, 111 S.W.2d 115, 117[ 1]; 22 C.J.S. Criminal Law § 331, p.. 842. In conducting a preliminary examination, the magistrate does not act in a. capacity of a court and his conclusion is in no sense a judgment determinative of the guilt or innocence of the accused. State v. Ancell, 333 Mo. 26, 62 S.W.2d 443, 447 [8]; State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 319[3].

Generally speaking, the proceedings, before the examining magistrate are not a part of the record subsequent to the filing of the information in the circuit court and cannot be properly incorporated therein without being proved. State v. McKinley,. 341 Mo. 1186, 111 S.W.2d 115, 117[5]; State v. Langford, 293 Mo. 436, 240 S.W. 167, 168[3], The record is quite meager as to what effect was given to the motion to suppress filed in the magistrate court.. It is drawn on the theory that the property was obtained by an unlawful search and seizure but appears to have been considered by the magistrate as a determination of what if any of the items in the-information constituted burglar tools. S. Ct. Rule 33.03, among other things, provides that the judge shall receive evidence on-, any issue of fact necessary to the decision of a motion to suppress and that the property seized shall be returned only if it is not of such a nature that its possession would constitute a criminal offense under the laws of the state. But how the motion, to suppress was treated is of no consequence-in the view we take of the case.

The jurisdiction of the circuit courts to try felony cases is not derivative, hut is original and exclusive. Sections 541.020 and 545.010; State v. Hester, Mo., 331 S.W.2d 535, 537[5], It follows that the circuit court in the trial of a felony case is not bound by a magistrate’s rulings on the admissibility of evidence or motions with respect thereto. State v. Hester, Mo., 331 S.W.2d 535, 537[5]. Since the prose•cutor was authorized to file the information, the circuit court had jurisdiction “to try the particular case” (State v. Thomas, 353 Mo. 345, 182 S.W.2d 534, 538), and the question before us is purely the sufficiency of the information without regard to the .rulings of the magistrate court on the defendant’s motion.

Section 560.115 makes it a felony 'for any person to possess tools “adapted, ■designed, or commonly used for breaking into” various structures named, and the statute specifically designates some of such tools. The information follows the form of the statute and this is generally deemed .sufficient to charge an offense. State v. Anderson, Mo., 232 S.W.2d 909, 911[1]; State v. Oertel, 280 Mo. 129, 217 S.W. 64, 66 [1].

The defendant is mistaken in his insistence that none of the items mentioned in the information can be classified as burglar tools within the meaning of the statute. The information specifically mentions several wrecking bars. A wrecking bar is for all practical purposes the same as a crowbar or a jimmy. See Webster’s Third New International Dictionary, Unabridged. A jimmy is one of the tools specifically banned by § 560.115, and a crowbar or pinch bar has been held to be a burglar’s tool within the meaning of the statute. State v. Lorts, Mo., 269 S.W.2d 88, 91 [2]; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 944[10], 103 A.L.R. 1301. Two screw drivers are listed in the information, and it is held in State v. Lorts that a screw driver, as well as a crowbar, may be possessed with an intent that constitutes them burglar’s tools. In addition to these items, the information lists one pair of grip pliers, a brace and a bit and seven punches. The definition of pliers is similar to that of nippers mentioned in the statute. The brace and bit and the punches are the equivalent of items specifically designated by the statute.

While such tools may be used in a lawful way, the intent with which the defendants possessed them is an essential element and such intent may be shown by independent evidence. See State v. Lorts, Mo., 269 S.W.2d 88, 91-92; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 943-944; and State v. Oertel, 280 Mo. 129, 217 S.W. 64, 66-67[4],

We need not undertake to determine if all of the objects specified can be classed as burglar tools. The fact that some of the property listed in the information may not be burglar tools within the statutory meaning does not render the information defective. State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 944[10], Further, it appears that other paraphernalia mentioned in the information may be taken into consideration as tending to show the intent with which the defendants possessed the breaking tools. Tools, like people, may sometimes be known by the company they keep. Breaking tools in a carpenter’s tool chest with other carpenter tools and carried by a carpenter would not be likely to excite suspicion. See State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 943-944. This is a matter of evidence which is not now before us. In any event the inclusion of extraneous articles would not invalidate the information.

The information is sufficient to charge the offense of possession of burglary tools within the meaning of Section 560.115, RSMo 1959, V.A.M.S., and the court erred in sustaining the motion to quash.

The judgments are reversed and the causes remanded.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Earl TURNER, Appellant.
    No. 48997.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.

      Earl Turner, pro se.
    Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., for respondent.
   STORCKMAN, Judge.

The appeal is from an order of the Circuit Court of Jackson County overruling the defendant’s motion (under S.Ct. Rule 27.26, V.A.M.R.) to vacate the judgment and sentence of life imprisonment imposed upon him pursuant to his conviction of murder in the second degree.

On April 6, 1960, an information was filed charging the defendant with murder in the first degree. The trial on May 9 and 10, 1960, resulted in defendant’s conviction of murder in the second degree and his punishment was assessed by the jury at life imprisonment. On May 19, 1960, the defendant appearing in court in person and by attorney, his motion for new trial was overruled, allocution was granted, and he was sentenced in accordance with the verdict. There is no showing that he appealed or attempted to appeal.

Over a year later, on June 7, 1961, the defendant filed in the circuit court a motion for leave to proceed in forma pauperis which was granted and his motion to vacate the judgment and sentence was filed. The motion alleges generally that the conviction and sentence are rendered null and void because of infringement of the defendant’s constitutional rights. The Sixth and Fourteenth Amendments to the Constitution of the United States and Art. I, § 10, Constitution of Missouri, V.A.M.S., are specifically mentioned. Section 18a, Art. I, of the Missouri Constitution, providing that in a criminal prosecution the accused shall have the right to appear in person and by counsel, is not referred to but is comparable to Amendment Sixth of the federal constitution. The allegations of the motion will be further discussed during the course of the opinion.

On July 5, 1961, the trial court having examined the defendant’s motion and reviewed the files and record in his case found that the prisoner was entitled to no relief and overruled the motion to vacate. In due course the defendant appealed.

Both state and federal decisions have developed the purpose and scope of relief available under S.Ct. Rule 27.26 and the similar federal rule so thoroughly that it need not be repeated here. It is sufficient to say that the relief was not intended to be any broader than that obtainable by habeas corpus; hence it is only where the sentence is void or otherwise subject to collateral attack that relief will be granted. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806; Adams v. United States, 95 U.S.App.D.C. 354, 222 F.2d 45, 46; Hill v. United States, 82 S.Ct. 468.

The motion must state the facts essential to establish the illegality relied upon for relief so that the court may ascertain from the motion and the files and the records of the case whether a hearing is necessary. Mere conclusions are unavailing. A groundless motion may be summarily disposed of without a hearing. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807; State v. Ninemires, Mo., 306 S.W.2d 527, 530-531.

The motion to vacate is quite lengthy and at times vague and difficult to understand. The brief filed by the defendant in this court follows substantially his motion in form and substance. Both the motion and the brief were filed pro se. The questions presented fall generally into three categories. The first point relied upon by defendant is thus stated: “Failure of the Court to appoint counsel at the preliminary hearing”. The record does not show that the defendant requested the appointment of counsel at the preliminary examination. He concedes that he had court-appointed counsel at his trial in the circuit court. He relies chiefly upon Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398, in which the defendant, apparently on arraignment, after requesting but failing to secure the appointment of counsel, pleaded guilty to an indictment charging armed robbery. A preliminary examination was not involved and the decision is not controlling or persuasive in this case.

A person about to be arraigned upon an indictment or information charging a felony who is unable to employ counsel is entitled at his request to have counsel assigned to him by the court. Sections 545.020, 546.010 and 546.020, RSMo 1959, V.A.M.S. Unlike a prosecution started by an indictment voted by a grand jury, a preliminary examination is required before a prosecutor is authorized to commence a criminal prosecution by filing an information. S.Ct. Rule 23.02 and § 544.250.

Ordinarily, defects in the proceedings by which a criminal prosecution is commenced, whether by indictment or by information, must be taken advantage of by a pretrial motion in the circuit court which has original and exclusive jurisdiction of the trial and disposition of felony cases. Sections 541.020 and 545.010; State v. Young, Mo., 351 S.W.2d 732; State v. Hester, Mo., 331 S.W.2d 535, 537[5]; State v. Crouch and Jenkins, Mo., 353 S.W.2d 597.

A preliminary examination is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged and tried in the circuit court or discharged if probable cause is not found. A preliminary hearing is designed to prevent possible abuse of power by the prosecution and at the same time permit the arrest and detention of an accused in a proper case. Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination. S.Ct. Rules 23.02 and 23.08; §§ 544.250, 544.410 and 544.420; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46, 52[7]; Skiba v. Kaiser, 352 Mo. 424, 178 S.W.2d 373, 374 [2] ; Lambus v. Kaiser, 352 Mo. 122, 176 S.W.2d 494, 497[6]; State v. Young, Mo., 351 S.W.2d 732; State v. Crouch and Jenkins, Mo., 353 S.W.2d 597.

The defendant’s second and sixth points involve the related contentions that his court-appointed counsel was ineffective and the defendant was thereby denied due process of law in that his attorney suppressed evidence favorable to him and “made no lawful defensive efforts in the case.” The defendant purports to recite the testimony of two of the state’s witnesses who were in the defendant’s room at the time that he stabbed Leroy Hamilton to death. The so-called suppression of evidence charged by the defendant consists of his counsel’s failure to cross-examine these witnesses in the manner that defendant thinks counsel should have. Further the defendant asserts that the prosecuting attorney in his closing argument to the jury improperly and prej-udicially implied that the defendant was guilty of murder and that his court-appointed attorney could have brought out the cause of the fight and shown that he was acting in self-defense. Giving defendant’s assertions a most liberal construction, the charge is wholly without merit and does not tend to charge a denial of due process of law.

The accused is entitled to a fair trial but not a perfect one. The fact that counsel did not offer certain evidence, cross-examine witnesses in the manner defendant desired, or make certain objections, is not a denial of due process of law. These are matters normally within the realm of counsel’s judgment and do not constitute allegations of ineffectiveness entitling defendant to relief under Rule 27.26. State v. Warren, Mo., 321 S.W.2d 70S, 709; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 789 [1, 2]; 16A C.J.S. Constitutional Law § 591, p. 675.

The final three points are also related. In connection with them, the defendant makes this revealing statement: “Petitioner makes no complaint on the ground he was charged with a greater offense but found guilty of a lesser one; but on the ground that all the testimony at trial adduced no evidence nor testimony supporting nothing except self-defense.” At best the complaints in this category could amount to nothing more than trial errors. In general he asserts that perjurious testimony was knowingly used by the prosecutor, that the state did not establish a motive, and that the state’s witnesses practiced a fraud upon the court and the jury, but his factual allegations do not support his conclusions. As to the perjury charge, defendant asserts that state’s witnesses Clarence Steawart and Nora Taylor testified that the defendant stabbed Leroy Hamilton five or six times, whereas the coroner testified that he found only two stab wounds, one of which caused death. The fraud alleged to have been practiced was that Nora Taylor was not a cousin of Clarence Steawart and not the wife of Leroy Hamilton. The defendant in the course of his brief invites the court to take judicial notice that the testimony complained of is “perjurious and conflicting”.

Testimonial conflicts of this sort do not tend to establish perjury or that the prosecutor had any more knowledge of these understandable discrepancies in the number of stab wounds or in the kinship and marital status of Nora Taylor than anyone else in the courtroom. See State v. Ninemires, Mo., 306 S.W.2d 527, 531 [9, 10]. Other matters complained of in this category were that the defendant’s counsel failed to object to the prosecutor’s question of whether a witness saw “Earl Turner the day he murdered Hamilton”, that one witness testified there were people drinking in defendant’s room while others denied it, and perhaps other assertions of a similar sort which are difficult to ascertain accurately because the motion is often vague and indefinite. Also, it is not clear whether some of these matters occurred at the trial in the circuit court or at the preliminary examination before the magistrate.

The matters complained of in this category are at best errors of law which do not go to the jurisdiction of the trial court. They are not within the purview of a motion to vacate under Rule 27.26. It is not the object of this rule or the intent of the courts applying it to afford the defendant a belated review as on a motion for a new trial. State v. Johnstone, Mo., 350 S.W.2d 774, 777 [4]; State v. Eaton, Mo., 280 S.W.2d 63; Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982; United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 249, 98 L.Ed. 248.

The punishment assessed by the jury and pronounced by the court was within the limits provided by law. Section 559.-030, RSMo 1959, V.A.M.S. We have considered all of the defendant’s contentions and find them without merit.

The judgment is affirmed.

All of the Judges concur.


author: WESTHUES, Presiding Judge.

text:
    The CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Respondent, v. William GREEN, Defendant-Appellant.
    No. 48508.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Feb. 12, 1962.
    Ordinance of city of St. Louis requiring that use zoning district be indicated on all “for sale” signs placed on realty by real estate agents did not violate broker’s constitutional rights and was reasonable regulation of business of real estate brokers under city’s police powers and city had power under its charter to enact such ordinance. Section 84.010 RSMo 1959, V. A.M.S.; V.A.M.S.Const, art. 1, §§ 8, 10; U.S.C.A.Const. Amends. 1, 14.
    Jackson F. Adains, Clayton, Max Sigoloff, St. Louis, for appellant.
    Thos. J. Neenan, City Counselor of the City of St. Louis, Aubrey B. Hamilton and Eugene P. Freeman, Assoc. City Counselors, St. Louis, for respondent.
   WESTHUES, Presiding Judge.

Defendant Green was convicted in the Court of Criminal Correction of the City of St. Louis, Missouri, of a violation of Ordinance No. 49394 of said City. This ordinance required any real estate agent when placing a “For Sale” sign on any parcel of real estate to indicate clearly on such sign “ ‘The Use Zoning District,’ under the Comprehensive Zoning Ordinance of this City in which such parcel of real estate is located * *

The trial court assessed a fine of $25.00 and costs against the defendant. An appeal was taken to this court.

The defendant filed a motion to dismiss the charge “on the ground that Ordinance No. 49394 of the City of St. Louis under which he is charged is in violation of the rights guaranteed to him under the First and Fourteenth Amendments of the Constitution of the United States and Sections 8 and 10 of Article 1 of the Constitution of the State of Missouri.”

The trial court overruled the motion to dismiss and defendant has preserved the constitutional questions for our review. This court, therefore, has appellate jurisdiction of the case.

The facts are not in dispute. The parties filed a stipulation in the trial court which reads:

“1. That William Green defendant herein, was employed by the owner of a parcel of real estate known and numbered as 5819 Cates Avenue, City of St. Louis, State of Missouri, to sell said parcel to such buyer as could be found.

“2. That said defendant Green pursuant to said employment did on October 17, 1959 cause to be placed a sign publicly advertising said .real estate as being for sale on the said parcel;

“3. That said sign so placed by said defendant, at such time and place as aforesaid, did not have any indication, legend or lettering thereon of ‘The Use Zoning District,’ under the Comprehensive Zoning Ordinance of the City, in which such parcel of real estate is so situated.”

The principal points briefed on this appeal are that the ordinance in question is unconstitutional; that the City of St. Louis does not possess the inherent police power to enact such an ordinance; that the State of Missouri has not delegated such power to the City of St. Louis; that the ordinance is unreasonable; and that the ordinance is not a proper exercise of a police power.

We shall first dispose of the constitutional questions presented for our review. Defendant, in his Points and Authorities, stated that “I. Ordinance 49394 deprives appellant of the right of free speech in the ordinary pursuit of his lawful business, and the right of due process of law guaranteed to him under the First and Fourteenth Amendments to the Constitution of the United States and Sections 8 and 10 of Article I of the Constitution of the State of Missouri, and is, therefore, unconstitutional and void.

“City of St. Louis v. Evraiff [301 Mo. 231], 256 S.W. 489, 495; State v. Julow [129 Mo. 163], 31 S.W. 781 [29 L.R.A. 257]; City of St. Louis v. Dreisoerner [243 Mo. 217], 147 S.W. 998, 1. c. 1000 [41 L.R.A.,N.S., 177].”

There is no merit in defendant’s contention that the ordinance in question violates any of the constitutional provisions mentioned in Point I of his brief.

Defendant was engaged in the business of selling real estate as an agent. He was a real estate broker. Such occupation has long been the subject of regulation by state statutes and by city ordinances where authorized. The general rule may be found in 12 C.J.S. Brokers § 7, pp. 11, 12, where it is stated that “It is within the police power of the state to regulate the business or occupation of a broker, and statutes making such regulations have generally been held constitutional and valid. Under authority granted by the state a municipal corporation may regulate the occupation of brokers. The business of buying or selling real property by real estate brokers and real estate salesmen on commission for a percentage of the agreed price or a specified fee to be paid by the purchaser or seller is a proper one for police regulation, and it is within the power of the state, by a statewide act, to make reasonable regulations with regard to such business.” See also 12 C.J.S. Brokers § 8c, pp. 13, 14. In Ahern v. Florida Real Estate Commission, 149 Fla. 706, 6 So.2d 857, 1. c. 858(3, 4) (5), in upholding a statutory regulation of real estate brokers, the court stated that the law was designed to protect the public and “the real estate business has become a highly specialized one and the real estate broker is now the confidant of the public in much the same manner as the lawyer and the banker.” See also Alford v. Raschiatore, 163 Pa.Super. 635, 63 A.2d 366, 1. c. 368, 369(3); Massie v. Dudley, 173 Va. 42, 3 S.E.2d 176, 1. c. 181, 182(9, 10) (11) ; Tanenbaum v. Sylvan Builders, Inc., 29 N.J. 63, 148 A.2d 176; Firpo v. Murphy, 72 Cal.App. 249, 236 P. 968; Mapes v. Foster, 38 Wyo. 244, 266 P. 109. In a number of those cases, the courts held .regulation of the business of real estate brokers was not violative of the Fourteenth Amendment of the U. S. Constitution.

The cases cited by defendant in support of his contention do not support his position.

Does the City of St. Louis have the authority to regulate real estate brokers? Our opinion is that the City does have that power by virtue of subsections (25) and (33) of Sec. 1, Art. I, of the City Charter. Subsection (25) authorizes the City to “ * * * license and .regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the city and all nuisances and causes thereof.”

Subsection (33) reads: “To do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants.”

The subsections just quoted, in general terms, granted the City broad powers covering a multitude of subjects. Certainly included therein is power to license and regulate real estate brokers. Sec. 84.010 RSMo 1959, V.A.M.S., applicable to the City of St. Louis, likewise in general terms granted the City broad police powers so long as the regulations did not conflict with the Constitution and the statutes.

In the case of City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, the validity of an ordinance prohibiting advertising the sale of goods without stating that the person advertising the sale was a dealer in goods was upheld. It was there contended that the ordinance impaired the freedom of speech and for that .reason it was unconstitutional. It was further urged that the ordinance was unreasonable and was class regulation. This court ruled all those contentions to be without merit. See 8 S.W.2d 1. c. 1003(2) (3) (4).

In the case before us, the ordinance cannot be said to be class legislation. It applies to all persons dealing in the sale of real estate as brokers. The requirement by the ordinance that “The Use Zoning District” be indicated on all “For Sale” signs placed on property is certainly intended to promote the convenience and welfare of the inhabitants of the City.

We note that by the “Comprehensive Zoning Ordinance” the permissive uses to which land may be used in the City were divided into eleven categories. They are:

“'A’ Single-Family Dwelling District.
‘B’ Two-Family Dwelling District.
‘C’ Four-Family Dwelling District.
‘D’ Multiple-Family Dwelling District.
‘E’ Multiple-Family Dwelling District.
‘F’ Local Business District.
‘G’ Commercial District.
‘H’ Commercial District.
‘I’ Central Business District.
‘J’ Industrial District.
‘K’ Unrestricted District.”

It certainly would be a great convenience for a person intending to purchase property if, when a location was viewed, the “For Sale” sign would indicate the permissive use for which the property was zoned. Further, such an indication on signs would likely lessen the disputes between sellers and purchasers as to representations made as to the zoning of the property. Such disputes do arise as may be noted in one of the cases cited by the defendant. Sachs Steel & Supply Company v. St. Louis Auto Parts & Salvage Company, Mo.App., 322 S.W.2d 183. In that case, no real estate agent was involved. However, the case illustrates that disputes do occur as to representations made about the use of property under the zoning ordinance. Defendant also cited City of St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 998. That case involved an ordinance prohibiting the erection of manufacturing plants within 600 feet of Tower Grove Park located within the city. This court held that the city had no power to declare, by ordinance, that to be a nuisance which was not so in fact. The case is not in point on the question before us.

The ordinance now under consideration in no way suppresses in part or in toto the business of a real estate broker. Nor does the ordinance declare such a business to be a nuisance. It merely requires an agent or broker when placing a “For Sale” sign on property to include in whatever information may be on the sign the use to which the property may be subjected under the zoning ordinance.

In the case of City of St. Louis v. Southcombe, supra, 8 S.W.2d 1. c. 1003(3), this court, in considering the legality of the ordinance requiring a merchant to state in advertisements that he is a dealer in goods, said: “It is apparent that such statement would assist the city officials in discovering persons doing business as merchants without a merchant’s license, and so promote the morals, peace, government, welfare, trade, and commerce of the city, and that the enactment of the ordinance is within the powers granted to the board of aldermen.” That statement of the law is applicable to the present case.

It may be noted that we have examined cases from other jurisdictions as well as cases by the courts of this state, 12 C.J.S. Brokers § 8, pp. 12 to 19, inclusive, the Charter of the City of St. Louis, the Zoning Ordinance, and the Ordinance under consideration.

We are of the opinion that Ordinance 49394 does in no way violate any of defendant’s constitutional rights; that the Ordinance is a valid regulation of the business of real estate brokers; that it is reasonable and not oppressive; that it is a regulation under the police powers of the City; that the City of St. Louis under its Charter has the power to enact such an ordinance.

The judgment of the trial court is hereby affirmed.

All concur.