author: HYDE, Judge.

text:
    In the Matter of Douglas DUNCAN and David Duncan, Minors. John T. DUNCAN, Petitioner, v. Bert PITTS and Jessie Pitts, Respondents.
    No. 49806
    Supreme Court of Missouri, En Banc.
    March 11, 1963.

      Gragg, Aubuchon & Walsh, by Eugene P. Walsh, St. Louis, for petitioner.
    Morie B. Soule, St. Louis, for respondents.
   HYDE, Judge.

Habeas corpus proceeding in which the St. Louis Court of Appeals sustained petitioner’s motion for judgment on the pleadings but transferred the case here for the purpose of re-examining the existing law under authority of Sec. 10, Art. V, Const., V.A.M.S. See In re Duncan, Mo.App., 360 S.W.2d 361.

Petitioner in his petition filed November 7, 1961, alleged detention of his children by their maternal grandparents; that he was granted a divorce on October 24, 1960, from the mother of the children and was awarded custody of the children by that decree, but that the respondents have refused to turn the children over to him. The children were boys, born April 21, 1957, and May 8, 1958.

The return is summarized in the Court of Appeals opinion as follows: “[Respondents alleged that the petitioner brought these children to their home in University City and requested respondents to support,, care for, and have custody of the children; that acting pursuant to his request,, the respondents have done so; and alleged ⅝ * * therefore, * * * the respondents herein, do not imprison, detain, nor restrain * * * ’ the children. The return also alleged that the petitioner was living with his wife at the respondents’ home-when he and his wife separated and knew she still resided there but nevertheless instituted service by publication; that no notice-was ever given to the mother of these proceedings which were ‘ex parte and uncontested’ insofar as custody of the children-was concerned. Respondents alleged that the circuit court did not have jurisdiction for this reason and its decree was ‘ * * * void, illegal, irregular and invalid.’ The-return further alleged that the petitioner is-not a resident of this state, does not maintain a home in this state, and intends to remove the children from the state, thereby-depriving ‘ * * * the State of Missouri of its inherent right of control of said' children’; and that the children ‘ since they were infants and are at the present time, wards of the Court of the State of' Missouri.’ The other allegations of the return deal with the fitness of the petitioner and allege that he is constantly traveling and does not maintain a home of any kind at any place; that he has not the means to care-for and support them; that he is a stranger to them with no love or affection for them;, that he habitually uses intoxicating liquor to excess and has beaten the children with an 18-inch oak ruler and has a violent and uncontrollable temper; that the children become emotionally upset at the mere sight of him or at his presence; that on occasion-they have required medical attention because of this fact; that petitioner ‘ * * * has had several encounters with the police- and was sought by the Internal Revenue Service * * that petitioner has. refused to care or provide for the children; that his conduct is ‘lustful, lewd and lascivious’ ; that by a previous marriage petitioner had another child which he did not •provide for either; and that petitioner only seeks to remove the children from the respondents and has stated his intention of placing them in a home if successful in doing so. The return also alleged the financial and moral fitness of the respond■ents.”

The return also alleged that “the Order •of Publication did not state the object or the general nature of said proceeding to show that the custody of the children would be in any way affected. As a matter of fact, the notice appearing in the publication was •completely absent of the fact that the custody of said minor children would be affected in any manner whatsoever.” Respondents have also filed a certified transcript of the testimony at the hearing on the divorce petition which only showed that petitioner said he was having his in-laws take care ■of the children and that he was asking for their control and custody. No testimony was offered as to fitness, ability to support or the welfare and best interests of the children

The Court of Appeals also summarized petitioner’s answer as follows: “The answer to the return admits he took the children to respondents’ home but alleges that this was when he came to live there with them and their mother, and further admits that there was no personal service on the mother when the divorce was granted. All the other allegations of the return are denied. As new matter, the answer alleges that the respondents cannot collaterally attack the divorce decree, and as grounds therefor alleges that the service on the mother was valid because she had ‘ * * absconded and absented herself from her usual place of abode * * * ’ at respondents’ home and ‘ * * * concealed herself so that the ordinary process of law could not be personally served upon her * * * ’; and that respondents cannot attack this decree because they are estopped to do so, having often told petitioner the mother was not living with them and they did not know her whereabouts. The answer further alleges his fitness and capabilities for caring for the children, and the respondents’ unfitness, in that they both work and the ‘children have been attended by a paid baby sitter during the day * * *. ’ ”

The Court of Appeals believed that Wakefield case, In re., 365 Mo. 415, 283 S.W.2d 467, required it to enter judgment on the pleadings for petitioner because the divorce decree awarded custody to him, although it felt that to be an unconscionable result if the allegations of the return were true. In the Wakefield case, the mother of the child involved had brought suit for divorce but her husband, the petitioner for habeas corpus, was granted the divorce on his crossbill and custody of their child. The child was placed in the care of petitioner’s half sister and her husband, petitioner claimed temporarily until he could make other arrangements. Having remarried and established a home, he asked respondents for the child but they claimed that by a verbal order not incorporated in the divorce decree, custody had been awarded petitioner on condition that the child would be in their care and control. Prior to the habeas corpus, the child’s mother had filed a motion which was still pending in the divorce court to modify the decree to vest custody in respondents. The Court of Appeals held it could not review the propriety of the divorce court’s award of custody nor alter it but that modification could only be made by that court. On transfer we reached the same result saying (283 S.W.2d 1. c. 472) : “[T]he writ may not be employed to interfere with the inherent right and jurisdiction of our circuit courts to determine and award custody of minor children in divorce cases of which they have proper jurisdiction and in which they have exercised that jurisdiction by making a custody award of record.”

It is to be noted that in the Wake-field case there had been a full hearing in the divorce case on a petition and crossbill. Furthermore an application for modification of the divorce decree had been made by a party to the divorce decree and was pending in the divorce court. Thus there was a remedy available and a proceeding pending in a court in which the matter could be heard. In this case, respondents have no standing to proceed for modification of the decree in the divorce court not being parties in the divorce case. Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 772, and cases cited; Secs. 452.070 and 452.120 (statutory references are to RSMo and V.A.M.S.). As the Court of Appeals points out (360 S.W.2d 1. c. 365) : “[I]f the mother were deceased, we could then inquire into the charges made against the father because the divorce action would then be abated. In re Wakefield, supra. So far as the welfare of the children is concerned, she might as well be dead. It is also true that if the petitioner here were seeking to enforce his natural right as a parent, we could inquire into his fitness, if that issue were raised. His position is only altered by a decree granting him custody in a case where his fitness was never in fact a question in issue or a hearing had thereon. It would appear that the rule in relation to a court’s right to search out the truth, under pleadings such as those before us, should not be so limited. As we construe the Wakefield case, we would have no alternative but to turn the children over to a petitioning father who had a default decree of divorce granting him custody, even though it was alleged that the lives of the children would be endangered thereby.”

We agree that, where the whole future of the lives of children is at stake, the matter is too important to be decided solely on a legalistic presumption of fitness based on a default decree on a perfunctory hearing of which there was no actual notice, but only publication in which custody of children was not mentioned, when there is no one available to seek modification in the divorce court. In a similar situation, the Supreme Court of Mississippi held evidence should be heard in a habeas corpus case on the issue of fitness of the mother who had been given custody of children in a divorce decree based on publication, and was seeking to obtain the child from paternal grandparents. Neal v. Neal, 238 Miss. 572, 119 So.2d 273. The court held evidence should be heard which was offered to show changed conditions since the divorce decree “relevant to the welfare and best interests of the children” and to the parent’s fitness to have their custody. The court cited the statements in 25 Am.Jur. 207, Habeas Corpus, Sec. 82, and 39 C.J.S. Habeas Corpus § 46, p. 585, saying this was the majority rule. See also Roll v. Roll, 143 Kan. 704, 56 P.2d 61. Our decisions have not authorized such hearings except, as the Court of Appeals points out, when one of the parents has died or there has been no order of custody and the parent is seeking to enforce his natural right. Nevertheless, when as here children are in the actual custody of persons with whom both parents have left them and one parent has obtained an order of custody in a default divorce case in which there was only notice by publication with no actual hearing on fitness or welfare of the children, and the other parent has disappeared so that there is no one to seek modification of the decree, our view is that there must be opportunity to hear evidence on this issue, not for the benefit of the adult parties seeking custody but for the welfare and best interests of the children involved.

In McCoy v. Briegel, Mo.App., 305 S.W.2d 29, where a parent sought by modification of her divorce decree to obtain custody of a child who had been cared for by third parties for several years, the court, although ruling that the third parties could not intervene, appointed an amicus curiae to present to the court the interests of the child involved. By that method the issue of the child’s welfare was considered. The Court of Appeals approved this procedure and' affirmed the order of the trial court refusing to modify the decree because it found the best interests of the child required that he remain with the third parties.

In Ex Parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951, a habeas corpus proceeding by a parent seeking custody of her child from a third party on the basis of her natural right, the court said: “There is, however, a still further issue which inheres in the case by reason of its subject matter. This is the issue of the welfare of the child, which is an issue always to be kept in view in all legal proceedings involving the custody and control of a minor child as to which the state stands in the relation of parens patriae. In other words, whenever a minor child is brought within the jurisdiction of a court for an adjudication with respect to the question of its custody, the child becomes the ward of the court; and in determining the question of its ultimate disposition,, the child’s well-being is of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interests of the child. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286. * * * In such an instance the nature of the inquiry makes the proceeding one of an equitable nature; and the question of either party’s strictly legal right will be measured in terms of the welfare of the child. Ex parte Badger, supra; 25 Am.Jur., Habeas Corpus, secs. 78-80; 39 C.J.S. Habeas Corpus § 41.” By analogy with the situations in which a parent is claiming custody by natural right instead of by court decree, and on the same principles, where there is no other forum for determining this issue,, because no proper party is available to proceed in the divorce court, and there has never been an .actual hearing to determine a child’s welfare, our conclusion is that the court may hear and determine this issue in a habeas corpus proceeding. Otherwise stated, the children’s mother being absent and unavailable, with no interest in their custody, we hold that the scope of the hearing should be the same as where one parent is deceased.

Also for consideration are the provisions of our Juvenile Court Acts of 1957 and 1959, now Secs. 211.011-211.511. By Sec. 211.031, the Juvenile Court is given exclusive original jurisdiction in proceedings “(1) [ijnvolving any child who may be within the county who is alleged to be in need of care and treatment” because of specified situations, including "(b) [t]he child is otherwise without proper care, custody or support.” See also Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 327, and cases cited. Sec. 211.051 provides: “Nothing contained in sections 211.011 to 211.431 deprives other courts of the right to determine the legal custody of children upon writs of habeas corpus or to determine the legal custody or guardianship of children when the legal custody or guardianship is incidental to the determination of causes pending in other courts. Such questions, however, may be certified by another court to the juvenile court for hearing, determination or recommendation.” Furthermore, Secs. 211.441 — 211.511 give the Juvenile Court authority to “terminate all rights of parents to a child when it finds that such termination is in the best interest of the child” and certain conditions exist, some of which are alleged in respondents’ return herein. As to adoption see Chapter 453. Therefore, the Court of Appeals, on the authority of Sec. 211.051, could certify to the Juvenile Court the questions of the fitness of petitioner to have legal custody of his children and what their best interests and welfare require as to custody.

The cause is remanded to the Court of Appeals for the purpose of hearing evidence on these issues, or in its discretion certifying them to the Juvenile Court for consideration as provided in Sec. 211.051, and making such orders as to custody as it shall deem proper.

All concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lelan D. SPROUT, Appellant.
    No. 49331.
    Supremo Court of Missouri, Division No. 2.
    March 11, 1963.

      Abe Goldman, S. S. Kalender, St. Joseph, for appellant.
    Thomas F. Eagleton, Atty. Gen., Allen J. Roth, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Leían D. Sprout appeals from a judgment imposing a sentence of fifteen years’ imprisonment for the murder in the second degree of Cledo Olvera. No brief has been filed here on behalf of the defendant. Many issues are raised or attempted to be raised in defendant’s motion for new trial. They relate to the evidence, the instructions and other alleged trial errors, and insofar as essential to a disposition of this appeal will be considered.

Several assignments question the submissibility of the State’s case. In ruling this issue the probative evidence favorable to the State is taken as true, as are all reasonable inferences to be deduced therefrom, and all evidence and inferences contrary thereto are disregarded. State v. Truster, Mo., 334 S.W.2d 104, 107 [2]; State v. Harris, 324 Mo. 223, 22 S.W.2d 802 [1-3]; State v. Concelia, 250 Mo. 411, 157 S.W. 778 [1, 4]. We omit some supporting and corroborative facts from our statement.

Olive Walker picked up Oliver Brewer about 9:00 a. m. Sunday, July 17, 1960, and proceeded to 219 Clayton Street, St. Joseph, Buchanan County, Missouri, where defendant, 59 years old, lived and Cledo Olvera, described by one witness as nothing more than a boy, stayed. Defendant and Olvera got in Walker’s car. He drove down the Atchison Highway about 3½ miles and stopped. Here all but Walker drank some wine, defendant having purchased two “fifth” bottles. Returning to 219 Clayton, all four entered the house, opened the second bottle and had a drink, defendant “a good, big drink.” Walker and Brewer departed between 10:00 and 11:00 a. m. Defendant and Olvera had been drinking but were not arguing or fussing at that time.

That afternoon defendant and Leroy Cooper were sitting on Nate Coleman’s stairsteps at 323 West Missouri Avenue. Coleman came down and noticed splotches of blood on defendant’s head and face, one up in his eyebrows. He asked defendant how that blood got on him and defendant said he had fallen down. Defendant was not drunk. Defendant had asked Leroy to his house for some wine, saying he had company. Coleman took them to 219 Clayton at Leroy’s request. Leroy testified that as soon as he and defendant got in the house, about 3:00 or 3 :30 p. m., defendant started “pulling off” his pants and shirt, which had “spots” (a term used in lieu of blood upon objection by defendant) on them; that defendant also had “spots” on his face and forehead, a large one above his right eyebrow. Leroy took a drink, looked in the back for Olvera and Walker, did not see them, then looked in the other room, saw the dead man on the bed, .ran out of the house and had the lady next door call the police.

The police arrived at 219 Clayton about 3:15 p. m. The house has four rooms. Two front rooms, each with a door, face south. Things in the house were thrown around, particularly in the front rooms. Olvera’s body was on its back on a bed in the east front room. The head had been severely beaten with some blunt instrument and the throat had been cut from ear to ear after death occurred. The face had been caved in by the blows. Blood was over everything. There were large and small “splattered spots” where blood had struck the furniture and wall near the bed, with some spots six or seven feet above the floor. Dr. S. E. Meluney, the Coroner, placed the time of death at 1:30 p. m.

Defendant was described as acting “very sorrowful” one minute and the next minute as talking about something else and acting as though nothing had happened. At 3 :25 p. m. he would not tell them when Olvera’s death occurred. Chief of Detectives Vern B. Starmer took charge when he arrived. Defendant was questioned for about one-half hour the afternoon of the 17th, and a search was made for the murder weapon.

Chief Starmer pulled a pair of trousers (marked plaintiff’s Exhibit A) out from between two mattresses on the bed in the west front room. According to one witness the trousers had twenty to twenty-five blood spots on them. Defendant at first denied owning the trousers but later admitted the trousers and a shirt (marked Exhibit B) he had taken off on Sunday were his, and had blood spots on them. He stated that the blood on the trousers and shirt and the spots on his face and forehead were from a fall he had on July 11th in which he sustained a cut on one of his eyes. A knife was taken out of the trousers in Chief Starmer’s office on the 17th.

Olvera’s body was taken to the Rupp Funeral Home. Defendant was taken to jail about 4:30 p. m., and the officers left the premises about 4:30 or 4:45 p. m. July 17, 1960.

Leroy Cooper testified that on Thursday, three days before Olvera’s death, defendant told Olvera “I am going to kill you,” saying Olvera was “greedy,” was drinking the wine too fast.

John Rupp, of the Rupp Funeral Home, took a sample of Cledo Olvera’s blood and placed it in a vial, plaintiff’s Exhibit U. Dr. Marvin W. Morse, with defendant’s consent, took a sample of blood from defendant’s arm vein and placed it in a test tube, plaintiff’s Exhibit S-2. He also removed brownish fragments from defendant’s forehead and placed them in a test tube, plaintiff’s Exhibit S-l.

Lieutenant James Rhodes of the Missouri State Highway Patrol and in charge of its technical laboratory testified that plaintiff’s Exhibits S-2 and U each contained samples of human blood and that Olvera’s blood, Exhibit U, belonged to type “O” group while defendant’s blood, Exhibit S-2, belonged to type “B” group. The fragments in Exhibit S-l were sufficient to determine the blood involved was human blood but were insufficient to determine the blood type. He examined and tested spots on defendant’s trousers and shirt, plaintiff’s Exhibits A and B, respectively, and testified said spots, in each instance, were of type “O” human blood.

Detective Tillman Nelson went back to search 219 Clayton for the murder weapon on Monday, July 18. He found the front and back doors shut, the back door being locked from the inside. He took the shirt, plaintiff’s Exhibit B, from a chair in defendant’s west front room and turned it over to Chief Starmer at the police station.

The jury could find from the evidence favorable to the State that decedent’s blood was not only on the furniture and wall near the bed on which the body lay but also upon defendant’s clothing, for instance, his trousers, and it is not within our province to interfere with findings supported by substantial evidence. State v. Dickson, 78 Mo. 438, 444(1); Harris and Concelia cases, supra.

Defendant complains of the admission in evidence of his trousers (Exhibit A) and shirt (Exhibit B).

The trousers were seized when found between two mattresses while searching the premises as an incident to defendant’s arrest. Defendant’s position is not well taken as the trousers were properly seized without a search warrant being necessary. State v. Brookshire, Mo., 353 S.W.2d 681 [7-9]; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743 [2, 3]; State v. Hands, Mo., 260 S.W.2d 14 [21].

The situation, however, is not the same with respect to defendant’s shirt. The record shows that defendant was taken to jail about 4:30 p. m., at which time the officers departed from the premises and the investigation ceased on July 17, although one witness put the time at 7:30 p. m. The State seized the shirt on Monday, July 18, when Officer Nelson went to defendant’s home, found the doors shut, but entered and took the shirt from a chair in the front room. The State treats the issue as respects both exhibits as being the same factually as well as legally, relying upon the same authorities. The Car-enza and Brookshire cases are the nearest in point of fact; but in each of said cases the officers did not abandon but remained in the possession of the premises after defendant’s arrest until the search was completed. Searches and seizures made a day after an arrest has been completed have been considered not an incident of the arrest. Lancaster v. State, 188 Miss. 374, 195 So. 320, 321; Walker v. State, 89 Okl.Cr. 66, 205 P.2d 335, 338 [1]. It has also been considered that an arresting officer who completes his search and transfers his prisoner from the dwelling to the jail may not ■return and again search the home as an incident of the arrest. Rippy v. State, 122 Tex.Cr. 101, 53 S.W.2d 619 [7, 8]; State v. McClendon, 64 S.D. 320, 266 N.W. 672; 79 C.J.S. Searches and Seizures § 26, p. 797, n. 23; Id., § 67, p. 842, n. 86; 47 Am.Jur. 515, § 19.

Defendant’s shirt, Exhibit B, was obtained by an illegal search and seizure under the above authorities and the court’s refusal to suppress said evidence and the evidence based thereon constituted prejudicial error calling for a new trial.

Defendant contends his trousers should not have been received in evidence because they were not in the same condition as when seized by the officers. Lieutenant Rhodes, the State’s expert witness on blood types, testified that he had cut some areas out of defendant’s trousers and shirt in order to make the necessary laboratory examination to determine whether the spots involved were human blood stains, and the type of blood involved. The two articles were positively identified as defendant’s trousers and shirt. Defendant so admitted to the officers. We quote the following from 32 C.J.S., Evidence, § 607: “In order that an article may be so introduced it must be satisfactorily identified, and it must also be shown to the satisfaction of the court that no such substantial change in the article exhibited as to render the evidence misleading has taken place. However, it is not necessary that the article be identically the same as at the time in controversy. It is unnecessary to show an absence of tampering on the part of every person through whose hands the article has passed; as long as the article can be identified it is immaterial in how many or in whose hands it has been.” We conclude defendant has failed to establish that his trousers should have been excluded on the ground assigned.

An assignment alleges error in admitting Lieutenant Rhodes’ evidence of the results of his blood-grouping tests because defendant asserts, “he destroyed” the pieces of cloth cut and blood taken from defendant’s trousers to make his laboratory blood-grouping tests, leaving defendant unable to defend against Rhodes’ testimony. Conclusions asserted in defendant’s motion do not prove themselves. State v. Robertson, Mo., 328 S.W.2d 576, 583 [9]; State v. Burks, Mo., 257 S.W.2d 919 [5]. On January 20, 1961, the State was ordered to turn over certain exhibits to defendant’s counsel, and it appears that these exhibits including said trousers, were delivered to defendant’s counsel. We do not understand that Lieutenant Rhodes cut out any more pieces of cloth from defendant’s trousers than were necessary to make his tests or that he cut out all of the blood stains on said trousers. There is no showing that he destroyed said pieces of cloth or blood. The affirmative testimony is that he did not destroy this evidence, and defendant’s assertion stands refuted by the record. In the circumstances of record the State is not to be charged with prejudicial error if this evidence were inadvertently lost or misplaced. State v. Meyers, 354 Mo. 277, 189 S.W.2d 279, 281 [5].

A complaint common against plaintiff’s Exhibits A, B and U (defendant’s trousers and shirt and sample of decedent’s blood, respectively) is the assertion the State did not prove who had possession of the respective articles from the time they were taken until offered in evidence. Defendant does not point out in his motion for new trial where any link in the chain of possession of any exhibit is missing. It is not the duty of trial or appellate courts to search through a record and speculate as to what defendant had in mind in vague assignments in a motion for new trial. Supreme Court Rule 27.20, V.A.M.R.; State v. Mason, 322 Mo. 194, 14 S.W.2d 611, 617 [15]; State v. Martin, Mo., 56 S.W.2d 137 [10]. Our reading of the record is to the effect the possession of the exhibits mentioned was disclosed insofar as need be shown. The State should be in a position to meet any specified deficiency upon a new trial.

Notwithstanding defendant’s defense that he was not the murderer and his admissions as to how decedent met his death, we are of the view that the trial court did not abuse its discretion and we may not find prejudicial error resulted from the admission in evidence of certain photographs, including that of the body of the deceased in the position found at the scene. The photographs, the one mentioned in particular, tended to refute defendant’s defense and to corroborate the State’s contention that the blood of the deceased was on the clothing and person of the defendant. 23 C.J.S. Criminal Law § 852(1), p. 342 ; 26 Am.Jur., Homicide, 465, § 449, appendix; Annotations, 73 A.L.R.2d 769, §§ 8, 10, 13, 21-26; 159 A.L.R. 1413. Defendant stressed State v. Long, 336 Mo. 630, 80 S.W.2d 154, 160 [9], in the trial court. See also State v. Robinson, Mo., 328 S.W.2d 667, 671.

Assignments that the court failed to instruct on motive (see State v. Brown, 168 Mo. 449, 68 S.W. 568, 576(10); State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734 [7]) or other specified subjects, without more, are insufficient to preserve any issue for review (Sup.Ct.R. 27.20; State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 437 [8]).

Assertions of error in the court’s refusing to give designated instructions to the effect that the instruction was a proper instruction and defendant was entitled to it to guide the jury in its deliberations and the instruction should have been given are too general to conform to Supreme Court Rule 27.20. State v. Linders, Mo., 224 S.W.2d 386, 390 [15]; State v. Baker, Mo., 293 S.W.2d 900 [6, 7]. Consult State v. Kelly, Mo., 107 S.W.2d 19, 21 [7]. Furthermore, it appears that defendant’s refused instructions are sufficiently covered insofar as need be, in the instructions given by the court.

Defendant claims the evidence did not justify an instruction on murder in the first degree or an instruction on manslaughter. He is in no position to urge prejudicial error on the asserted grounds because he was not convicted of murder in the first degree and if the evidence did not call for an instruction on manslaughter (he was convicted of murder in the second degree) the error was in his favor and against the State.

There is no occasion to extend this opinion. Sundry other points are presented or attempted to be presented in defendant’s motion for new trial. Defendant is entitled to a new trial. Several assignments will cease to be live issues from the fact a new trial is ordered. Some matters assigned as error should not recur. Counsel for the State no doubt will review the .record in the light of defendant’s motion for new trial and the brief presented on behalf of the State; and we think may readily eliminate other matters assigned as error insofar as defendant’s assignments possess merit.

The judgment is reversed and the cause is remanded.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Matthew DAVIS, Appellant.
    No. 49427.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1963.

      Jack L. Koehr, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Burton H. Shostak, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   STORCKMAN, Judge.

The defendant was found guilty of murder in the second degree, Section 559.020, RSMo 1959, V.A.M.S., and was sentenced to imprisonment for a term of ten years in accordance with the verdict of the jury. He has appealed but has filed no brief, so the case is before us on the transcript of the record and the brief of the state.

In this situation we review the assignments of error properly preserved in the motion for new trial and the essential parts of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Weindorf, Mo., 361 S.W.2d 806, 808 [1]. The assignments of error properly preserved are that the court erred in overruling defendant’s motion for a judgment of acquittal filed at the close of the entire case; that the court erred in giving two instructions offered by the state and in refusing two offered by the defendant.

In determining the sufficiency of the evidence to sustain the conviction, we consider as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom, and evidence to the contrary is rejected. State v. Reagan, Mo., 328 S.W.2d 26, 29 [5].

At about midnight on September 23, 1961, the defendant killed his wife by shooting her with a 4/10 shotgun in front of their home at 1400½ Glasgow in the City of St. Louis. When arrested that night the defendant admitted the shooting. The next day he was further interrogated by the circuit attorney and signed a written statement which was introduced in evidence. The defendant also testified at his trial.

On the night in question the defendant’s wife gave him money with which to buy three quarts of beer and he left home to go to a liquor store at about 8:30 or 9 p. m. At the store he met friends with whom he talked until about 11 o’clock during which time the defendant and his friends consumed a couple of half pints of vodka. The defendant then made his purchase, went -outside, set the package on the sidewalk, and talked further for about a half hour. When he picked up the paper bag containing the bottles, one of them fell through and broke. He took the other two bottles home and told his wife about the broken ■one. She called him a liar, cursed him, and an argument ensued. The wife not believing his story decided to go to the liquor store to see the place where the bottle was broken. She went to their automobile, a 1956 Ford, which was parked in front of their house on the east side of the street facing north. She got into the car on the driver’s side and the defendant undertook to enter on the passenger’s side, thereupon the wife took a butcher knife from her purse and shoved the defendant out of the car. The defendant testified that she' threatened to kill him. He left the car and walked towards the house and the wife, according to the defendant’s statement, walked as far as the front steps with him at which place she held the knife at his back.

The wife stayed outside but the defendant went into the house, got his 4/10 shotgun and three shells, two of which he placed in his pocket and the other he loaded into the weapon. When he returned to the car his wife was seated on the driver’s side and he went to the other side and told her he was going to shoot her. The wife got out of the automobile and ran to the front of it where the defendant met her and fired a shot that struck the wife in the right groin. The wife fell to the street and as she attempted to rise the defendant reloaded the shotgun in order to shoot her a second time, but she again collapsed. During this time the wife screamed for help and her neighbor, Eveline Sharp, who resided at 1402 Glasgow, called to her and heard the defendant say that he had shot his wife. However, Mrs. Sharp did not go to the wife’s assistance because she was afraid to go out because the defendant had a gun. The defendant left his wounded wife in the street calling for help and went into the house. Police officers arrived shortly and found the deceased lying on the sidewalk bleeding. She died from hemorrhage caused by the gunshot wound. The police officers went into the house where they found the defendant and arrested him. They took the shotgun and the two remaining shells. They found on the street a butcher knife about 9½ inches long.

The defendant testified that although his wife threatened him with the knife she did not make any swipes at him at any time; that at the time the shot was fired she had her hand on the gun barrel and “jerked the gun toward” him; and that his wife got to her feet before she collapsed the second time. The firearm used was a single-shot, breech-loading shotgun. The hammer had to be cocked and the trigger pulled before the gun would fire. The defendant admitted that he had pulled the trigger when the shot was fired which fatally wounded his wife.

The defendant charges that the court erred in overruling his motion for acquittal made at the close of the state’s case and again at the close of all of the evidence. Where the defendant offers evidence and testifies in his own behalf, the error, if any, in overruling his motion for judgment of acquittal entered at the close of the state’s case is waived, and the sub-missibility of the case must be considered upon the entire evidence. State v. Vincent, Mo., 321 S.W.2d 439, 440 [2].

Murder in the second degree is the killing of a human being willfully, premedi-tatedly, and with malice aforethought, but without deliberation.' Section 559.010 and section 559.020, RSMo 1959, V.A.M.S.; State v. Strong, Mo., 339 S.W.2d 759, 764 [4]. The evidence showed that after Mrs. Davis had threatened the defendant he went into the house, got his shotgun, loaded one of the three shells into the gun and cocked it. He then went outside with the loaded gun and found his wife seated in the driver’s seat of the automobile. He went to the passenger’s side and told her he was going to shoot her. She jumped out, ran towards the front of the car where he met her, pointed the gun at her and pulled the trigger. The evidence shows that the defendant had ample opportunity to withdraw from the affray. When considered in the light most favorable to the state, the evidence is clearly sufficient to support a finding of every essential element of murder in the second degree. State v. Strong, Mo., 339 S.W.2d 759, 765 [5]; State v. Vincent, Mo., 321 S.W.2d 439,442 [7]; State v. Tourville, Mo., 295 S.W.2d 1, 5 [8]; State v. Finn, 326 Mo. 662, 243 S.W.2d 67, 70 [2].

The defendant further contends that the evidence established that the shooting was accidental or in self-defense. The jurors were entitled to believe or disbelieve and reject those parts of the defendant’s statements and testimony which tended to exculpate him just as they were privileged to weigh and determine the credibility of all other evidence in the case. State v. Tourville, Mo., 295 S.W.2d 1, 5 [4]. The evidence did not establish as a matter of law that the shot was fired accidentally or that the defendant was acting in self-defense. The court did not err in denying the motion for a judgment of acquittal at the close of the entire case. The issues of accident and self-defense were submitted to the jury under instructions which are unquestioned.

Instruction 2 submitted murder in the second decree and on three occasions used the term “feloniously, willfully, pre-meditatedly, and with malifce aforethought”. The defendant asserts that the instruction is erroneous in that it failed to define the technical legal meaning of “feloniously” in terms which would be understood by a layman. Generally, the use of the word “feloniously” in an instruction without explanation of its meaning is not prejudicial since it is merely descriptive of the grade of the offense. State v. Scott, 109 Mo. 226, 19 S.W. 89, 90; State v. Weber, 156 Mo. 249, 56 S.W. 729, 731; State v. Harris, Mo., 313 S.W.2d 664, 669 [4]. Second degree murder is a felony. In the circumstances of this case it is not possible that the defendant was prejudiced by the use of the word.

That part of instruction 5 which deals with the presumption of innocence and reasonable doubt concluded with this direction: “If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.” The defendant contends that the instruction is erroneous because it creates an inference that something more than a reasonable doubt is necessary for an acquittal and fails to define the term “substantial doubt”. It is clear from the context that “substantial” is used in the sense of “Not seeming or imaginary; not illusive; real; true”. Webster’s New International Dictionary, Second Edition. The use of the word without further definition did not render the instruction erroneous. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343 [14]. Any attempt to make the meaning of the term plainer would probably have the opposite effect.

Furthermore the instruction does not create an inference that something more than reasonable doubt is necessary for acquittal and it does not take away defendant’s right to have his guilt proved beyond a reasonable doubt. State v. Sanders, Mo., 358 S.W.2d 45, 48 [4]; State v. Velanti, Mo., 331 S.W.2d 542, 545 [4]; State v. Hutsel, 357 Mo. 386, 208 S.W.2d 227, 232 [12]. The Hutsel case gives a brief résumé of the decisions of this court holding instructions of this kind to be correct declarations of the law. For other cases so holding, see Mo. Digest, Criminal Law, Key Nos. 789(7) and 789(16). The assignment of error is denied.

The defendant assigns error in the refusal of the court to give instruction B offered by him reading as follows: “The jury are instructed that they will take into consideration the evidence as to the quarrelsome, turbulent and dangerous character of deceased, and give it such weight as you deem it entitled to. You may consider such evidence for the purpose of throwing light upon the conduct and demeanor of deceased during the difficulty between her and the defendant, and also for the purpose of throwing light upon the defendant’s apprehensions, if any, at the time of the shooting.” In response to a question on direct examination whether he had any reason to fire at his wife the defendant testified that about 1956 she stabbed him in the back, as a result of which he was in serious condition and hospitalized for about three weeks; that about two weeks after he returned to work she tried to stab him again with a butcher knife. This evidence falls in the category of previous hostile acts or conduct on the part of the person killed or assaulted rather than evidence of such person’s general character or reputation for turbulence. It does not bear on the issue of accidental homicide. State v. Woods, 274 Mo. 610, 204 S.W. 21, 23 [3]. It could only have been admissible on the issue of self-defense. State v. Laspy, Mo., 298 S.W.2d 357, 360 [6]; State v. Wilson, 250 Mo. 323, 157 S.W. 313, 315 [4].

The court gave an instruction on self-defense which advised the jury that if the defendant at the time he shot his wife “had reasonable cause to believe and did believe” that she was about to take his life or do him some great bodily harm and if it further found “from the evidence that he had reasonable cause to believe and did believe that it was necessary for him to shoot” her in order to protect himself then he ought to be acquitted on the ground of self-defense. The instruction further told the jury that the questions presented must be determined “from all of the evidence in the case”. The self-defense instruction permitted the jury to consider the evidence of the previous attacks in connection with the only issue on which it was material.

There was no evidence in the case of the victim’s general reputation or character for turbulence. In a prosecution for homicide, proof of the general character and reputation of the person killed for turbulence and violence cannot be made by evidence of specific acts. State v. Allen, 290 Mo. 258, 234 S.W. 837, 843 [4]; State v. Colvin, 226 Mo. 446, 126 S.W. 448, 461 [19] ; State v. Green, 229 Mo. 642, 129 S.W. 700, 703-704 [7]. The specific acts about which the defendant testified did not justify the assumption in the instruction that there was evidence that Mrs. Davis was generally quarrelsome, turbulent and dangerous; and in the circumstances of this case the kind of instruction offered would have been an unwarranted comment on the evidence. State v. Clough, 327 Mo. 700, 38 S.W.2d 36, 39 [4], 40 [10] ; State v. Rozell, Mo., 225 S.W. 931, 934 [7]. The court did not err in refusing instruction B or in failing to give another instruction dealing with the subject matter.

The defendant also offered instruction A which authorized the jury under the facts hypothesized to find the defendant guilty of manslaughter. Section 559.070, RSMo 1959, V.A.M.S. The defendant contends that the court erred in refusing to give this or another suitable instruction submitting the offense of manslaughter. The defendant says an identical instruction was given in State v. Foster, Mo., 338 S.W.2d 892, but the instruction is not set out in the reported case and its correctness does not seem to have been determined. The Foster case does hold, however, that homicide is a graded offense but that manslaughter is a distinct offense, not a degree of murder. 338 S.W.2d 892, 896 [5].

In order to justify reducing homicide from murder to manslaughter, there must be a sudden and unexpected assault or provocation tending to excite the defendant’s passion beyond control and the defendant must have entered the conflict without intending to commit a felony. State v. Haynes, Mo., 329 S.W.2d 640, 645 [6]; State v. Finn, Mo., 243 S.W.2d 67, 72 [12] ; State v. Smith, Mo., 240 S.W.2d 671, 674 [6] ; State v. Clough, 327 Mo. 700, 38 S.W.2d 36, 38 [1, 2]. The facts in the Finn case are remarkably similar on this issue to those in the case at bar. The defendant’s own testimony was that he left his wife at the first step, went into the house, got the gun and shells, loaded the gun, and when he returned to the street his wife was in the driver’s seat of the automobile. The defendant went to the car door on the passenger’s side to shoot his wife and told her he was going to do so. When she got out of the automobile and ran, he met her at the front of the car and fired the shot which caused her death. The evidence does not justify submission of the offense of manslaughter and we need not be concerned with the correctness of the instruction.

■ The defendant further urges that the court erred in failing to instruct on manslaughter through culpable negligence. The defendant was either guilty of murder under the state’s evidence or was innocent under his own. There was no evidence of negligence on which to base an instruction on manslaughter through culpable negligence. Section 559.070, RSMo 1959, V.A.M.S.; State v. Whipkey, 361 Mo. 1008, 238 S.W.2d 374, 377 [2]. There was no room in the case for an instruction on manslaughter of any kind.

The final specifications in the defendant’s motion for new trial are that the verdict of the jury was against the weight of the evidence and against the substantial evidence in the case. These are so general that they present nothing for appellate review. S.Ct. Rule 27.20, V.A.M.R.; State v. Howard, Mo., 360 S.W.2d 718, 721 [2]; State v. Tourville, Mo., 295 S.W.2d 1, 4 [1].

We have considered all of the specifications of error properly preserved in the motion for new trial and find them to be without merit. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be in proper form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.