author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Joe Henry McBRIDE, Appellant.
    No. 49569.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.

      William A. Richter, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James Wilson Spencer, Special Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

The information herein, after alleging two prior felony convictions of defendant under the habitual criminal act, in one count charged defendant with burglary in the second degree of and stealing from a shop of Alfred Aslanian, doing business as Aro Cleaners, situate at 2600 North Taylor Avenue, in the City of St. Louis. (See §§ 560.070 and 560.110 RSMo 1959, V.A.M.S., to which revision all statutory references herein are directed.) The jury returned a verdict finding “defendant guilty of Burglary in the second degree and Stealing as Charged.” The court, hearing evidence out of the presence of the jury, found that defendant had been priorly convicted of the felonies alleged and, upon return of the jury’s verdict, assessed his punishment at imprisonment in the State Penitentiary for a term of two years for the crime of burglary and two years for stealing, said sentences to run consecutively. Following hearing and overruling of defendant’s motion for new trial and proper allocution, judgment was rendered in accordance with the verdict and the term of imprisonment assessed by the court. He has appealed.

Among the errors assigned are the following: (a) the evidence does not show that the stealing was committed at the time of and in connection with commission of the burglary, but on the contrary shows that the burglary and stealing consisted of two separate and distinct felonies, which may not lawfully be joined and tried under one information; (b) the information did not describe the property which the State’s evidence tended to show that defendant stole and, therefore, does not warrant conviction of defendant of stealing the property shown by the State’s evidence; and (c) the court erred in failing to instruct the jury that it was required to find that defendant stole the property described in the information before it could convict him of stealing.

The evidence in behalf of the State warrants a finding of the following facts. The shop, known as Aro Cleaners, owned and operated by Alfred Aslanian, is located on the northeast corner of Taylor Avenue and Cottage Street. A narrow dead-end gangway separates the building in which the shop is located from a grocery store immediately to the north. On Saturday evening, February 17, 1962, about seven o’clock, Mr. Aslanian closed and locked the shop for the weekend. On that date and prior thereto an exhaust fan was affixed in the north wall of the shop about eight feet above the grade level of the gangway and five feet from its dead end. On Monday morning, February 19, 1962, Aslanian returned to the shop. His employee, Milton Brookins, and a police officer, Charles Ruengert, were there. They saw that the exhaust fan had been pushed into the inside of the shop and it was found underneath a clothes rack inside the shop. Clothing, usually kept on racks, was all over the place and much of it had been thrown upon the floor. It was evident that quantities of women’s clothing had been cast aside and that principally men’s garments, the value of which was estimated at $500, had been stolen. An electric drill, electric saw, coins from a peanut vending machine a typewriter, an adding machine, a German pistol and wrenches, the value of none of which items was shown, had also been stolen. A cabinet with a safe in it was broken open and money kept therein was missing. Some women’s clothing was found on Monday in a vacant lot across the street.

Following a conversation of Police Officer Elmer with one Ronald Scott on March 2, 1962, Elmer and Police Officer Cox on that day went to a dining room in Marquette Hall, St. Louis University, about 3 :00 p. m. There they found defendant at work in a white uniform. The officers placed the defendant under arrest, but permitted him to go to his locker in the building and change into street clothing, following which he came out wearing a man’s blue suit. That suit, upon examination by the officers, revealed the laundry mark of Aro Cleaners stencilled in one of the suit pockets and an “Aro tag” number on a label in the coat. Defendant told the officers he had bought the suit. The officers, with defendant in custody, started to the police station. As they proceeded in the police car, they questioned defendant. He finally told them that the suit he then wore came from Aro Cleaners and also told them that he had more clothing from Aro Cleaners at his home. At the request of the officers, he consented that they go with him to his home; upon arrival, defendant admitted them. There he showed them a three-quarter length coat and four sport coats that came from Aro Cleaners. He and the officers then resumed their journey to the police station, where he was “booked” and held as “suspected of burglary”. There defendant talked further with the officers, telling them that on Saturday night, February 17, at approximately 11:00 p. m., he and one James Taylor went to Aro Cleaners, and walked down the gangway to the exhaust fan; that Taylor took a screen door found nearby, leaned it against the building, climbed up the screen door and pushed the exhaust fan out with his feet and hands and entered the shop, which made some noise that defendant saw lights “come on” in living quarters above the grocery store,, became scared and ran away without having entered the shop; that on the following evening, Sunday, February 18, defendant, Taylor and Ronald Scott returned to the shop, at which time defendant and Scott entered the building and Taylor remained in the gangway; that defendant and Scott gathered up numerous articles of clothing in the shop, which they “pitched” through the hole in the wall and which they then and there apportioned between the three of them; and that they then left the area, each going his separate way.

Shortly after defendant had made the statement on March 2nd, Aslanian, in response to a call from the police, came to the police station. He identified the clothing produced by defendant and defendant reiterated in the presence of Aslanian the statement he shortly theretofore had made to the police officers. In the course of his testimony, Aslanian said that defendant also admitted that he, Taylor and Scott took all the “merchandise and equipment” out of the shop on Sunday evening. Thereafter, seven sweaters and a coat taken from the shop were recovered from Ronald Scott and were in custody of the police.

At the trial defendant denied that he participated in or was present at either the burglary or the stealing of anything from the shop and denied that he had made any statement to police officers or to any other person that he had participated in or was present at the burglary or the stealing. He also testified that he bought the clothing found in his possession from a casual acquaintance. He and others also testified that he spent the evenings of February 17 and February 18 at certain places in the city in the company of persons other than Taylor or Scott.

Section 560.070, defining burglary in the second degree, in substance here material, requires a finding of breaking and entering any building, in which any goods, wares, merchandise or other valuables are kept, with intent to steal. When the evidence shows beyond a reasonable doubt that the breaking and entry are made with the intent to steal, failure to consummate the intended stealing because of fright or any other reason does not exonerate any of the persons participating in the breaking and entry. State v. Wall, 339 Mo. 111, 96 S.W.2d 36, 39; State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 274-275; State v. Whitaker, Mo., 275 S.W.2d 316, 319. Where no stealing is shown, the intent with which the breaking and entry were made may and generally must be proved by circumstantial evidence. Oftentimes the circumstances under which the breaking and entry are shown to have been made, in and of themselves, warrant a finding of an intent to steal. State v. Whitaker, supra, loc.cit. 319; State v. Farris, Mo., 243 S.W. 2d 983, 985-986. In this case the oral admissions of defendant, as related by the police officers and Aslanian, and the manner in which the breaking and entry were shown to have been accomplished clearly support the verdict and judgment declaring defendant guilty of burglary in the second degree as charged.

Section 560.110 provides: “If any person in committing burglary shall also commit a crime of stealing, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, * * It does not require that the stealing must be charged or shown to have taken place at the time of the first entry. If the evidence shows that the breaking and entry are made with the intent to steal and the latter element of the crime is consummated by an act of stealing as an integral part of commission of the burglary, then, although the act of stealing does not take place at the precise time of the breaking and original entry, yet, obviously, the person or persons committing both burglary and stealing under those circumstances may properly be charged with and tried for both burglary and stealing in the same information. The evidence in this case clearly warrants a finding that defendant and Taylor broke into and entered the shop on Saturday night with the intent to steal, left the premises only because they became scared, and, on Sunday night, in consummation of the intent with which they originally broke and entered the shop, again entered and committed the crime of stealing property therefrom. The defense, other than the general issue, was an alibi. If defendant desired a converse of the instruction submitting in behalf of the State the issue of defendant’s stealing in commission of the burglary, he should have requested it. State v. Scott, Mo., 299 S.W.2d 526, 530[5]; State v. Worley, Mo., 353 S.W.2d 589, 595[4], In the instant case, counsel for defendant not only did not request the giving of any instructions, he expressly advised the court, “I do not have any instructions to offer the court.”

A more serious question is presented as to the validity of defendant’s conviction of stealing the property described in the information, in connection with the burglary. The only property alleged in the information to have been stolen in connection with the burglary were the following four items : "one hundred seventeen dollars, lazvful money of the United States of the value of one hundred seventeen dollars; one .32 caliber German Automatic Pistol, of the value of twenty dollars; one-fourth Will make Drill, of the value of twenty dollars; one Remington make Adding Machine, of the value of eighty dollars; all of the total combined value of two hundred thirty-seven dollars.”

As to the property alleged in the information to have been stolen, Aslanian testified that an “electric drill”, an “adding machine”, a “German pistol” and “some money” had been stolen. But he also testified that other items of property not described in the information were stolen, to wit: an “electric saw”, a “typewriter”, “some wrenches”, a large amount of men’s and women’s clothing of the approximate valúe of $500, the “title” to his automobile, certain shares of stock in “my laundry”, clothing “tickets” and a “peanut vending machine” which had “money” in it.

There is substantial evidence to support a finding that defendant stole a large amount of clothing from the shop on Sunday evening in consummation of the intent with which defendant was charged to have broken into the shop on Saturday night. The evidence favorable to the-State in that respect was that defendant expressly admitted those facts and that a considerable amount of the stolen clothing was found in the possession of defendant and Scott, was recovered from them and was in the custody of the police. But the evidence that defendant stole any of the four items of property alleged in the information to have been stolen in the commission of the burglary rests primarily upon inferences to be drawn from the evidence as to the burglary and the finding of some of the clothing in the possession of defendant and Scott. None of the items of property alleged in the information to have been so stolen, nor, for that matter, any of the other stolen property, except the clothing, was ever recovered from nor was possession of’any of it ever traced to defendant or Scott or Taylor; and, with the exception of the clothing stolen from the building, the evidence does not show that any attempt was ever made to trace any of the property shown to have been stolen from the building, whether described in the information or not.

The law is clear that: “While a person who commits a burglary and also commits a larceny is punishable for the larceny without regard to the value of the property stolen, as for grand larceny, yet when he is charged with the burglary and also with stealing certain property in the indictment it would be improper to direct the jury that he might be convicted of the larceny if he stole other property than that charged in the indictment to have been stolen.” State v. McGraw, 74 Mo. 573, 574. And in State v. Shapiro, 216 Mo. 359, 115 S.W. 1022, 1026, the same principle is stated: “The Constitution of this state [now § 18(a), Art. I, Const.Mo.1945] provides that ‘in criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation’ against him. He cannot be charged with stealing horses and convicted on proof that he stole hogs. Neither can he be charged with stealing copper and convicted on proof of stealing brass. * * * While our statute of jeofails cures many defects in evidence, it does not permit the state to charge a defendant with stealing specific articles of property of one kind and convict him of stealing other and distinct property. If it did it would be a clear violation of the constitutional provision above noted.” See also State v. Jones, Mo., 227 S.W.2d 713, 717[8],

These cases, however, do not mean that evidence of possession of property stolen at the same time of the stealing charged in the information may not be admissible upon a further showing “that there was some connection between it and the property charged in the indictment to have been stolen, as where it is shown that it was stolen at or about the same time and place. But if there is proof that such property was also stolen, and that there was some connection between it and the property which the accused is charged with stealing, the evidence is generally admissible. In such a case, it may be admitted for any or all of four purposes: (1) to prove felonious intent; (2) to prove that the alleged theft was a part of a continuous transaction or scheme of larceny; (3) to identify the defendant; and (4) to identify the allegedly stolen property.” 32 Am.Jur., Larceny, § 134, p. 1045. See also State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740, 742[4, 5], to the same effect. Consequently, the evidence of the theft of property shown to have been stolen under the circumstances shown by the evidence adduced in behalf of the State was competent for the reason and purposes above stated.

We are confronted, however, with defendant’s further contention that the court erred in failing to instruct the jury that it was required to find that defendant stole any of the property described in the information before it could convict him of stealing. The contention must be sustained. The transcript shows that the court, by instruction No. 2, submitted the issue of burglary in the second degree with the intent to steal “personal property of any kind and of some value, however small” kept in said shop. By instruction No. 3, the jury was directed that if it found defendant guilty of burglary as defined and explained in instruction No. 2 and “that after breaking into and entering said building the defendant, either acting alone or jointly with another or others, took and carried away from and out of said building, goods, wares, merchandise and personal property * * * ; and * * * took said goods, wares, merchandise and personal property, with the felonious intent at the time to steal same, then you will find the defendant guilty of stealing in connection with said burglary in the second degree, and so say in your verdict; * * *.” The mere reading of the instruction shows that it authorized a verdict finding defendant guilty of the felony of stealing committed in connection with the burglary if the jury found that he (either acting alone or with another) stole any of the personal property kept in said shop, irrespective of whether the jury found defendant had stolen any of the four items alleged in the information to have been stolen. In other words, to illustrate, the instruction authorized conviction of defendant if it found that he stole any of the clothing (of which there was highly substantial evidence), despite the fact that the information did not charge him with stealing clothing, or despite the fact that the jury may not have found beyond a reasonable doubt that he stole any of the items described in the information. In so instructing the jury, the trial court committed error prejudicial to defendant. State v. McGraw, 74 Mo. 573, 574; State v. Shapiro, 216 Mo. 359, 115 S.W. 1022, 1026; State v. Jones, Mo., 227 S.W.2d 713, 717[8], Consequently, the judgment convicting defendant of stealing in connection with commission of the burglary must be reversed and the charge of stealing remanded.

Inasmuch as other errors complained of may be easily avoided at any future trial of defendant for the stealing of which he is charged in the information, no beneficial purpose could be served by burdening this opinion with discussion of them.

The judgment of conviction of defendant for the crime of burglary is affirmed. The judgment of conviction of defendant of stealing in connection with commission of the aforesaid burglary is reversed and the charge of stealing as set forth in the information, or in any amendment thereof, is remanded for further proceedings in accordance with the views herein expressed.

All of the Judges of the Division concur and STONE, Special Judge, concurs.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    John C. RANDAZZO, Appellant, v. Phyllis POLIZZI, Respondent.
    No. 49338.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.

      Rosenblum & Goldenhersh, St. Louis, Emanuel Shapiro, Clayton, for appellant.
    Alexander & Robertson, L. A. Robertson and Leo C. De Voto, Jr., St. Louis, for respondent.
   HOUSER, Commissioner.

Action for $25,000 damages for personal injuries. Jury verdict for defendant. Plaintiff appealed from the ensuing judgment.

Plaintiff claimed his jaw was broken as the result of a fall on' an unsafe common stairway on defendant’s premises. Plaintiff and his family, tenants in defendant’s building, had lived there for 17 or 18 years. Plaintiff testified that he started to work on the night shift, and while descending a 30-inch-wide outside wooden stairway at 11 o’clock on an evening in early October, 1958 he stepped on a loose wooden tread, which moved or “flipped” and caused him to lose his balance; that he grabbed for the bannister on the left, but the bannister gave way and broke loose, causing him to fall down the stairs and strike his left jaw on a brick column near the foot of the stairs. There is no question that plaintiff’s jaw was broken, but the case was defended on the principal ground that his jaw was not broken by a fall on the stairs; that plaintiff’s case was a fraud “from the word ‘go’ ”; that plaintiff’s account of what happened was unbelievable. Defendant also pleaded and submitted the defense of contributory negligence.

On this appeal plaintiff claims he was prejudiced by defense counsel’s argument to the jury, comments in the presence of the jury, and by his cross-examination of plaintiff.

Alleged Improper Argument

In argument to the jury, after referring to the instruction on credibility of witnesses, defense counsel said: “How do you determine whether a witness has told the truth or not? Mr. Silverstein [plaintiff’s counsel] has taken issue with me that I have checked on poor John Randazzo. John Randazzo has worked there some thirty years in a business that’s not known for its niceties — down on Produce Row—

“Mr. SILVERSTEIN: I object—

“Mr. DEVOTO: (continuing) And I know whereof I speak. My father was down there for twenty-two years.

“Mr. SILVERSTEIN: I object to that, Court please. I think it’s improper. I ask that Mr. DeVoto be cautioned not to comment on that, and ask that it be stricken and a mistrial be declared.

“THE COURT: I’ll sustain the objection. It will be stricken and the jury will disregard it. Mr. DeVoto, you will confine yourself to the issues.”

Plaintiff considers this was an argument that plaintiff “was in a business known for dishonesty.” While this does not follow, the argument was outside the issues and evidence and was improper. The court, however, promptly sustained the objection made by plaintiff’s counsel, struck it from the record, admonished the jury to disregard it, and admonished counsel. Plaintiff was given all the relief requested, except a mistrial. Whether this improper argument constituted sufficient ground for a mistrial was a matter of discretion. We find no abuse of discretion in the failure of the court to sustain the motion for a mistrial.

Alleged Improper Cross-Examination

Plaintiff claims the court erred in permitting cross-examination with reference to cutting open some cabbage sacks. (His duties as a produce salesman sometimes required him to rip open crates, a sack of potatoes, or a package to show to a potential customer.)

Plaintiff was hurt on or about October 9, 1958. He testified he went back to work in six weeks, but at first was merely “around the place, and just watching everything went on the way it was supposed to”; that he was not doing any kind of heavy work until February or March, 1959. In order to show that plaintiff’s disability had not lasted that long, defendant’s counsel, who knew of a police report indicating that as early as January 8 or 9 plaintiff had been doing hard work on the job, asked plaintiff this question: “I’ll ask you specifically if you were ripping open any cabbage sacks with a knife on January 8, 1959 in front of No. 27 Produce Row?” An objection on the ground of immateriality was overruled and plaintiff admitted that he “was probably around the store, yes” but testified that he wasn’t well enough because of his jaw to do any work that required exercise such as ripping open heavy sacks. Later, in defendant’s case, defendant’s counsel placed a uniformed officer on the stand and inquired of the officer concerning “the record of an incident involving John Randazzo.” Plaintiff’s counsel objected and moved for a mistrial on the ground that this statement by defendant’s counsel gave the jury the impression that plaintiff was involved in a police incident, and that this was an improper method of impeachment. When the court overruled, a further objection was made that this was an attempt to impeach plaintiff on a collateral matter, as to which defendant was bound by plaintiff’s answer. Defendant’s counsel argued that it was not a collateral matter, but went directly to the issue of damages. The report involved an investigation of an incident in which John Randazzo was accused of stabbing another. It resulted in disturbance of the peace charges, later dismissed. Counsel agreed that the only material matter in the report was its recital that on January 8, 1959 John Randazzo made a statement that he was cutting open some cabbage in front of No. 27 Produce Row at 4:50 a. m., and that this portion only of the police report be read to the jury. Pursuant to the agreement defense counsel read only the portion agreed upon, but he prefaced it with the following statement: “It has been stipulated and agreed between counsel for plaintiff and myself in this police report involving John Randazzo, * * Plaintiff’s counsel moved for a mistrial because of the reference to a police report involving John Randazzo. The motion was overruled.

The court did not err in this respect. The cross-examination was relevant on the issue of damages. Plaintiff, having claimed that he was unable to perform hard work prior to February or March, was properly interrogated as to his performance of hard work in early January. This was not a collateral matter. Having denied that he did hard work that early in the progress of his recovery, it was competent to impeach his denial by the prior inconsistent statement given the police. Defense counsel’s reference to “an incident involving John Randazzo,” and “this police report involving John Randazzo,” do not justify appellant’s conclusion that the jury would thereby infer that plaintiff was “some kind of a police character, with a police record.” For one to have been involved in an incident concerning which a police report is made does not mean that he was the subject of the police investigation. Nothing revealed to the jury indicated that plaintiff was being investigated. The part of the report which might have been regarded as prejudicial (about the stabbing and peace disturbance charges) was not read to the jury. The part read to the jury was innocuous and nonprejudicial.

Appellant argues that testimony that he was not ripping open “cabbage sacks” was not impeached by a report that he was cutting open “some cabbage/’ but this exercise in semantics is insubstantial. Appellant further contends that the proof of the statement by calling to the stand the uniformed officer in charge of the record room had a “devastating effect” upon the jury, and that any probative effect of the officer’s testimony was far outweighed by the prejudice to plaintiff. This objection is not substantiated and is without merit. Furthermore, no such objection was made at the trial.

Next, plaintiff claims the court erred in overruling plaintiff’s objection to cross-examining plaintiff as to confidential communications between husband and wife. Plaintiff testified on direct examination that after the fall he rested a while, thinking he could go on to work, but because he continued to bleed and suffer pain he went back up the stairs and knocked at the door. His wife, who had been in bed, arose and opened the locked door to admit him. This occurred in the cross-examination of plaintiff :

“Q * * * Did you tell her what happened to you that night?
“A I didn’t say a word to her because—
“MR. SILVERSTEIN: I don’t want to get into conversation between husband and wife.
“THE COURT: Overruled. Proceed.
You didn’t tell your wife how you happened to fall and hurt yourself?
“MR. SILVERSTEIN: I object to that on the grounds it’s husband and wife privilege—
“THE COURT: Overruled.
“MR. DEVOTO: I believe he answered.
“Q You didn’t tell your wife how you had fallen down the steps?
“A I didn’t say nothing to her.”

This is said to have violated § 491.020, V.A. M.S., and the rule that “communications between husband and wife, which are not made in the presence of third persons, are confidential and privileged, and cannot be used without the specific consent of the parties involved absent waiver.”

There are three unusual factors in this situation. First, the question called for a disclosure of the fact whether or not a communication had been made, rather than calling for the substance of a disclosure that was made. Second, the testimony revealed that in fact no communication was made. Third, this was not an effort to exclude the testimony of one spouse that no communications were made by the other spouse, but was an effort to exclude the testimony of the noncommunicating spouse. Generally, the rule excluding communications from the other spouse has been held to prohibit only testimony as to the substance of the matter communicated, and not to prohibit a husband or wife from relating the fact that a communication was made by the other, without telling what was communicated. Anno. — Acts as Confidential Communications, 10 A.L.R.2d 1389, § 3, p. 1396. If the fact that a communication was made is not privileged the fact that a communication was not made would likewise be unprivileged. Idem, p. 1397. “Negative testimony by one spouse that his spouse had not told him a certain matter is not incompetent as a privileged communication.” 97 C.J.S. Witnesses § 270a, p. 774. In Thayer v. Thayer, 188 Mich. 261, 154 N.W. 32, a widow’s testimony that her husband had never accused her of unchastity in any way was held not a privileged communication. In Spaulding v. Albin, 63 Vt. 148, 21 A. 530, a wife’s testimony that in an interview with her husband the note in question was not mentioned was held not a confidential communication. In Spicer v. State, 115 Tex. Cr.R. 110, 28 S.W.2d 810, this question was asked the accused in a homicide prosecution, “Did your wife ever tell you that she shot deceased?” (in this case the wife claimed she, not he, did the shooting), to which the accused answered “No.” It was held that “the witness having answered the question in the negative, no privileged communication was elicited.” In United States v. Guiteau, (1882, D.C.) 1 Mackey 498, 47 Am.Rep. 247, testimony by the wife that the husband had not exhibited any acts indicating insanity was held not an infringement of the privilege. We hold that the privileged communication rule did not exclude the testimony of the husband that shortly after he was injured he saw his wife but did not say a word to her about what happened to him or that he had fallen down the steps; that the fact of not communicating what befell him was a proper subject for cross-examination.

Plaintiff next assigns error in permitting the cross-examination of plaintiff with respect to prior lawsuits, and inquiring into the confidential communications between attorney and client.

Plaintiff’s petition alleged injuries to his jaw, back, spine, hips, legs and entire nervous system. In his opening statement plaintiff’s counsel made no claims for back injury, and referred only to the injury to his jaw and loss of two teeth, and on direct evidence plaintiff adduced no evidence regarding injury to parts of his body other than his jaw and teeth. On cross-examination defense counsel asked plaintiff if he had ever previously brought suit for injuries to his person. An objection on the ground of immateriality was sustained. Plaintiff was then asked whether he had ever before brought a suit for injury to his back, arm or shoulder. Another objection was made, plaintiff’s counsel pointing out that plaintiff was not making claim for back, etc. injuries, but only for injuries to his jaw and teeth. The latter question was never answered. Defense counsel then insisted on the right to cross-examine the witness as to whether he “did not tell someone at some time he hurt his back,” in view of the allegations in the petition about back injuries. The court permitted the inquiry and plaintiff was asked whether he told his attorney about the accident . . . about the nature of his injuries. Plaintiff’s counsel objected on the ground that this was privileged as a confidential communication between attorney and client. The objection was overruled. Plaintiff then testified that he told his attorney that his arm, leg and hip, but not his back, were injured. Later plaintiff testified he told his attorney his back was hurt; that he had a bruise. Plaintiff testified that his arm, leg and hip were injured in the fall. Then plaintiff was asked whether he had ever made a claim or filed a lawsuit for injury to his arms or other injuries to his body, but this was not answered, the court sustaining objections to the latter questions.

We find no error in these rulings, as charged. Plaintiff claims these questions created the impression in the minds of the jury that plaintiff was a habitual filer of lawsuits, and that these were fraudulent, but we find no basis in these questions for ■such an inference. Plaintiff cites Cammarata v. Payton, Mo.Sup., 316 S.W.2d 474, and Marrah v. J & R Motor Supply Co., Mo. App., 165 S.W.2d 271, for the proposition that it is error to permit evidence to be introduced concerning prior lawsuits which involved injuries not involved in the present litigation. The difficulty with this position is that the trial court in the instant case excluded, instead of admitting, testimony with reference to prior lawsuits. Cross-examination of plaintiff with respect to injuries to his back, spine, hips, legs, etc. was not improper, where he alleged these injuries in his petition hut claimed lesser injuries at the trial. Defendant properly could show the inconsistency of plaintiff’s position. Plaintiff could not complain, where the evidence adduced by the cross-examination showed he suffered more injuries than those for which he was asking damages at the trial. We do riot find any violation of the rule that communications between attorney and client are privileged. Having alleged the injuries and testified as to their nature, plaintiff was open to inquiry as to their extent and whether he communicated the facts with reference thereto to his attorney. A client cannot avail himself of the privilege to shield himself from a disclosure of facts which are a legitimate subject of inquiry. Chellis v. Chapman, 52 Hun. 613, 7 N.Y.S. 78, aff. 125 N.Y. 214, 26 N.E. 308, 11 L.R.A. 784; 97 C.J.S. Witnesses § 276a, p 785, fn. 69.

Finally, plaintiff assigns error in •defendant’s statement and interrogation of plaintiff, on cross-examination, that plaintiff’s prior injury was “no accident.” On direct examination plaintiff was asked if he had any scars on his face as a result of his fall down the steps. He replied in the affirmative and was asked to turn his face toward the jury and show them. Two scars were evident. He pointed to one of them as the scar from this accident. On cross-examination defense counsel asked about the other scar, and plaintiff said it was ■“from another accident.” Defense counsel then said “Well, that was no accident — ” and “My question is this. Your fractured jaw of 1953 was no accident, was it?” This precipitated an objection and request for mistrial (out of the hearing of the jury) on the ground that “in 1953 the plaintiff’s jaw was fractured when he was assaulted by Captain John Dougherty of the St. Louis Police Department, and as a result of that assault there was a good deal of publicity for about three or four months in St. Louis. I think any mention of how he fractured his jaw in 1953 is completely immaterial and irrelevant * * * attempt to prejudice the jury * * *.” The objection was overruled, and the question was restated in this form: the first time you fractured your jaw it “wasn’t an accident like an automobile accident or an accident like you described here [a fall], was it?” Plaintiff answered “No” and that concluded the inquiry on this point. It was never disclosed to the jury that the first fracture was caused by a policeman striking him. Plaintiff says this created the wrong impression, and conveyed to the jury the idea that plaintiff lied when he said it was an accident, and that the real purpose of the inquiry was to refresh the minds of the jury about the “notorious” 1953 incident, and thereby prejudice plaintiff. There is no error here. Plaintiff having testified that the other scar was from an accident, defense counsel had the right to cross-examine and elicit the fact from plaintiff, in self-contradiction, that it was not an accident in the accepted sense of the word. We cannot say that the cross-examination had the necessary effect of resurrecting the eight-year-old incident in the minds of the jurors.

Finding no error, the judgment is affirmed.

COIL, C., not participating.

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Verne Nelson YOUNG, Appellant.
    No. 49507.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.

      Schrader & Schrader, Earl H. Schrader, Jr., Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Defendant was charged under the habitual criminal statute, Section 556.280 (all statutory references are to RSMo 1959, V.A.M.S.), with the offense of stealing property having a value of more than $50. After a jury verdict of guilty the trial judge sentenced defendant to confinement for six years. Defendant has appealed from the ensuing judgment, and he contends that he was entitled to have the punishment determined by the jury because there was no properly admitted evidence of a prior conviction.

Out of the presence of the jury the State offered three exhibits, admitted in evidence over the objection of defendant, as proof of a prior conviction of a felony in the State of Kentucky. Exhibit 8 is a photostatic copy of a document entitled “Judgment of Conviction” which purports to be the record of a conviction and sentence in the Circuit Court of Christian County, Kentucky, of Verne Young on July 22, 1958, for “Storehouse Breaking.” The record purports to show allocution and sentence of imprisonment for a period of five years. On the original record the name of the judge is typed thereon, and there appears the following certificate: “I, Durwood Walker, Clerk of the Christian Circuit Court, certify that the above is a true and correct copy of the judgment of conviction in this case of the Commonwealth of Kentucky against Verne Young as appears of record in my office. Witness my hand, this 22nd day of July, 1958.” The name of Durwood Walker is typed thereon, and below that in writing appears, “By Mary Ann Brannock,” followed by the printed initials “D. C.” If there was a seal on the original document it does not show on the photostatic copy offered in evidence. On the reverse side of the photostatic copy, and not as a part of the original document, is typed the following: “This is a true and certified [hole in paper] this Commitment order as it appears on record in this office as of November 9th 1961.” There then appears the signature of “H. R. Patterson” and below that is typed “Senior Records Clerk Kentucky State Penitentiary Eddy-ville, Kentucky.” There also appears an impression of a seal of “H. R. Patterson Notary Public State of Kentucky at Large.” Exhibit 7 is a photostatic copy of a document entitled “Commutation of sentence” wherein it is shown that on December 3, 1959 a sentence of five years imposed on Verne Young for “Storehouse Breaking” was commuted “to time served.” The original document was signed by “Thelma L. Stovall, Acting Governor Commonwealth of Kentucky,” and attested by “Edith M. Whit-worth, Secretary of State.” If the seal of the Commonwealth of Kentucky was on the original document it does not appear on the photostatic copy, but it appears that there is a place for such seal. On the reverse side of the photostatic copy, and not as a part of the original document, is typed the following: “This is a true and certified copy of this Commutation Order as it appears on record in this office as of November 8, 1961.” There then appears the signature of H. R. Patterson with the typed identification as “Senior Records Clerk Kentucky State Penitentiary, Eddyville, Kentucky,” and the same notary seal as appeared on Exhibit 8. Exhibit 6 is a photograph of a man with a sign on his chest reading as follows: “Ky State Pen Eddy-ville Ky 22221 7 22 58.” On the reverse side there is typed the name of .Verne Young, and various information which obviously was taken from other records. The “Date of Info” is stated to be November 9, 1961, the date of the certificate on the back of Exhibit 8. At the bottom appears the signature of H. R. Patterson, and typed below it is “Senior Record Clerk.”

The habitual criminal statutes do not prescribe how proof of a former conviction shall be made. State v. Baugh, Mo., 323 S.W.2d 685, 690. The record is the best evidence, “plus evidence identifying the accused as the convict.” State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1081. However, it is not always possible to produce the original record in court, particularly, when the prior conviction occurred in another state, and in that event the proof of the fact of a prior conviction and sentence must conform to the requirements for the proof of any other fact. Section 1739, 28 U.S.C.A., provides that certain documents which have been authenticated as therein set out shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of the State from which they are taken. Without detailing their deficiencies, it is sufficient to say that none of the three exhibits in this case met the authentication requirements of the above federal statute. However, the federal statute does not prescribe the only basis for the admission in evidence of documents, and a state may by statute provide that in its own courts documents shall be admissible as evidence when attested or authenticated in a prescribed method which may be less formal than that required by the federal law, if such method does not exclude documents authenticated as prescribed by the federal act. State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76, 79. Missouri has done this, and we shall now consider those statutory provisions.

Section 490.130 provides that the records and judicial proceedings of any court of the United States, or of any state, “shall have such faith and credit given to them in this state as they would have at the place whence the said records come,” when they are (1) “attested by the clerk thereof, with the seal of the court annexed, if there be a seal,” and (2) “certified by the judge, chief justice or presiding magistrate of the court to be attested in due form.” There then follows a less exacting provision for the admission into evidence of copies of the record of proceedings of any court of record of this state. Only Exhibit 8 purports to be a copy of the record of a judicial proceeding, and it is readily apparent that it does not meet the minimum requirements of Section 490.130 to be admissible into evidence. The most glaring deficiency is that it is not “certified by the judge * * * to be attested in due form.”

In addition to the above statute, Section 490.220 provides that “All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.” Exhibits 7 and 8 and the photograph portion of Exhibit 6 purport to be copies of records kept in the office of the Kentucky penitentiary at Eddyville. It would appear that only the photograph was prepared in that office. The other two were prepared someplace else and forwarded to the penitentiary office, and presumably kept there as a part of the penitentiary records.

We need not rule whether under these circumstances Exhibit 8 is a record “not appertaining to a court” because even though it is not, neither it nor either of the other two exhibits qualify for admission into evidence pursuant to Section 490-220.

The precise question we have here was presented and ruled in State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76. In that case in order to stay the running of the statute of limitations it was essential that the State prove that during a given period of time the defendant was continuously a fugitive from justice and a nonresident of this State, and as proof of that fact the State offered in evidence a certificate of “R. D. Payne, secretary to the warden of the Kansas State Penitentiary,” and a document acknowledged by “R. A. Shackleford, Bertillon Expert and Record Clerk.” These documents were offered to show that the defendant was in the Oklahoma penitentiary during a certain period and in the Kansas Penitentiary during another period. This court pointed out that “no statute of Oklahoma or Kansas was introduced showing what records, if any, are required by law to be kept by those in charge of the penitentiaries, who is by law required to keep them or what facts are to go into such records.” It was then stated that “Even if we might assume that the keeper of a penitentiary must, from the nature of his duties, keep a record of the reception and discharge of prisoners, though no statute commands it * * *, and that his office might therefore be treated without proof as a public office within the meaning of our statute [Section 490.220], we are still left without any showing that the persons who made the certificates in question were the keepers of the records they purported to attest. The statute requires attestation to be by the keeper of the records or books and the seal of his office, if there be a seal. When the statutory mode of authentication is relied upon, the attestation should comply substantially with the statutory requirements. Where copies of records are offered, it should appear that the officer by whom they purport to be certified had the right to the custody of the records and was the person who had the right to furnish authenticated copies.”

The Hendrix case was written before the enactment in 1949 of the Uniform Judicial Notice of Foreign Law Act, Sections 490.-080-490.120, which provides that “Every court of this state shall take judicial notice of the * * * statutes of every state, * * *,” and that “Any party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” It is not clear that this act applies to criminal proceedings, but an identical act was so applied in State v. Jackovick, 56 Wash.2d 915, 355 P.2d 976. Assuming for the purpose of this opinion that it does, and that the allegation in the information of the previous conviction in Kentucky constituted “notice * * * to the adverse parties * * * in the pleadings,” the State did not “present to the trial court any admissible evidence” of the applicable law of Kentucky. Assuming, also, that the offer into evidence of the three exhibits constituted a request that the trial court take judicial notice of the statutes of Kentucky, or that the trial court took judicial notice of the Kentucky statutes without a request, its determination of the law “shall be reviewable,” Section 490.100, and our examination of the Kentucky statutes reveals no mention therein of a “senior record clerk” at the Kentucky Penitentiary at Eddyville, and we find no statute from which it may be inferred that a person by that title is the “keeper” of the records of that institution. On the contrary, from Sections 196.160 and 196.180, Kentucky Revised Statutes 1962, it appears that the “keeper” of the records of the Kentucky State Penitentiary at Eddyville is the superintendent thereof. In the absence of proof of the applicable law of Kentucky, and in the absence of any statute or other rule of law of that Commonwealth, of which we may take judicial notice, which declares or establishes the senior record clerk and not the superintendent to be the “keeper” of the records within the meaning of Section 490.220, we must necessarily conclude that upon the showing made by the State, upon whom the burden rested to establish the admissibility of the exhibits, none of the three exhibits was admissible in evidence pursuant to Section 490.220, or by reason of any other statute including The Uniform Business Records as Evidence Law. Sections 490.660-490.690.

We note that most of the information contained on the back of the photograph, Exhibit 6, obviously was prepared by the clerk from other records at the time the exhibit was prepared, and such information constituted his conclusion as to what was shown by those records. “It is not competent, * * * for the certifying officer to certify his conclusion of what the record shows,” State v. Hendrix, supra, and that portion of Exhibit 6 was inadmissible for this reason in addition to the other reasons.

The record in this case contains no competent evidence from which it may be found as a fact that the defendant had previously been convicted and sentenced for a felony, and therefore he was entitled to have the jury and not the trial court determine the punishment. He was prejudiced by the erroneous procedure followed because the jury may have imposed a lesser punishment than that imposed by the trial court. See State v. Kiddoo, Mo., 354 S.W. 2d 883.

The judgment is reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Johnnie W. MESSLEY, Appellant.
    No. 49556.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1963.
    Rehearing Denied April 8, 1963.

      Edward V. Sweeney, Monett, Frieze & Crandall, Carthage, for appellant.
    Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

Johnnie W. Messley, a retired air force sergeant whose hobby is firearms, has been found guilty of assault with malice with a deadly weapon and his punishment fixed at four years’ imprisonment. V.A.M. S. § 559.180. Throughout the trial Messley has been represented by experienced and resourceful counsel, therefore it is necessary to note but briefly the circumstances of the shooting and to consider only such assignments of error as have been properly briefed and argued upon this appeal. Sup. Ct. Rule 28.02, V.A.M.R.; State v. Mason, 339 Mo. 874,, 98 S.W.2d 574; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304.

Sometime after 11 o’clock and after 8, 10, or 12 beers since 3 o’clock in the afternoon, Johnnie left Sadie Wrobleski’s beer tavern in Pierce City, got in his automobile parked in the rear parking lot and proceeded out Commercial Street to its intersection with Highway 60. There, Johnnie says, he stopped for a stop sign, traveled about two miles south on Highway 60 toward his home in Monett. But, realizing that he was being followed by Constable Gasche, he drove on until he came to a side road, turned around and “went back from the way I came,” five or six miles into Newton County. Gasche was the constable in Pierce City and had been commissioned deputy sheriff by the Sheriff of Lawrence County. He had stopped Messley on two prior occasions, one of them resulting in his pleading guilty in Lawrence County to a traffic offense involving intoxicants. He had followed him about the streets of Pierce City on 12 or 15 occasions and, according to Johnnie, “I could see that he had it in for me.” Gasche says that when Johnnie crossed Commercial street he did not observe the highway stop sign. When Johnnie realized that he was being followed, he “slowed up enough that I could recognize him, why I just drove on; and he didn’t follow me, he just slacked off. * * * I hadn’t done anything, and he was on my back all the time; and I figured he didn’t have no right to stop me when I wasn’t doing nothing.”

In any event, instead of proceeding on to Monett and home, Johnnie turned his white Cadillac around and Gasche followed for about a mile and a half with his siren sounding and his red police light flashing. He stopped and when Gasche walked up Johnnie inquired what he wanted. Gasche said, “I j ust want you to set here in the car until the other officers get here.” Instead of waiting Johnnie drove off and Gasche followed for five or six miles until, near the Smackout store in Newton County, a Monett police car drove in front of the Cadillac and again it stopped with Gasche’s automobile in the rear, all three vehicles headed west. Then, this is Johnnie’s version of what followed: “They slowed up and all three cars stopped; and Mr. Gasche got out of his car and he was parked fairly close behind me, and I didn’t get out or anything, and he walked up to the side and he had his revolver in his hand; and when he walked up to the side, I figured this was the time, and I shot him, when he walked up with a gun in his hand.” He says now that he did not intend to kill Gasche, that he saw the gun and was in fear of his life and “I shot him before he could shoot me.” He does not claim that Gasche shot at him and he does not know how many shots he fired from the .25 caliber automatic after he took it out of the glove compartment. On the other hand, this is the contrary version of the shooting, the Monett police did not see a gun in Gasche’s hand as he walked up to the Cadillac and Gasche says that he did not have his gun in his hand. He walked up to Johnnie’s automobile and said, “Get out of the car.” And then, with no words spoken, “He just laid the gun over right on the door and went to shooting.” Three shots were fired from a clip of six shells and they all took effect in Gasche’s right side and abdomen as he backed away and fell into a ditch on the south side of the road. Messley “took off at a pretty good rate of speed” and for the first time Gasche drew his gun and fired three times as the automobile drove away. At least one of the Monett police officers also fired at the vanishing vehicle and one bullet struck Johnnie’s shoulder. Subsequently, in Mt. Vernon, a highway patrolman and others said that after Johnnie had been arrested someone inquired as to Gasche’s condition and Johnnie said “he hoped the son-of-a-bitch died,” if he didn’t “he would have to do the job over again.”

It is not necessary to note the several inferences permissible from these circumstances, upon this appeal the serious objections are to the instructions and the facts are thus detailed in order that the instructions may be considered in context. There is one assignment of error concerned with testimony, more precisely with the refusal of the court to permit a certain line of cross-examination. After the close of the State’s case the defendant again called Mr. Gasche and asked several questions designed to show bias or to embarrass if not impeach him. Then defendant’s counsel inquired whether it was true that “on a great many occasions you have followed Sadie Wrob-leski late at night after she had closed her place up clear out in the county toward her home?” Then counsel inquired if in October 1960 he had not followed Lucy Looney out on Highway 37. The court sustained objections to these questions and then the defendant proposed to call Lucy Looney and prove that on one occasion Gasche had stopped her and had “violently attacked and manhandled” her but offered to let her go “provided he could have his way with her.” It is now urged that the court erred in excluding these questions and offers, that it was an improper restriction upon the right of cross-examination and that the proffered evidence was admissible to impeach Gasche.

Admittedly, counsel may in good faith ask discrediting questions for the purposes of impeaching the character of a witness. State v. Bagby, 338 Mo. 951, 964, 93 S.W.2d 241, 248. But when, as with the questions involved here, the inquiries relate to collateral matters counsel is bound by the answers and the latitude of such cross-examination is for the most part in the court’s discretion. State v. Winn, Mo., 324 S.W. 2d 637. There are several possible distinctions in the cases relied on but they need not be noted, as to extraneous collateral matters it is not permissible to impeach the witness by proof of a contrary fact. Here these two questions were not answered but the court permitted counsel to inquire fully into Gasche’s previous arrests of Johnnie, and his following him on various occasions. The defendant was also entitled to ask questions designed to test Gasche’s veracity or accuracy and thereby shake his credibility by injuring his character. But there was no manifest prejudicial abuse of discretion in the court’s refusing permission “to go into collateral specific incidents, remote from the day of the shooting of deceased.” State v. Brotherton, Mo., 266 S.W.2d 712, 715; State v. Hewitt, Mo., 259 S.W. 773, 782; State v. Dees, Mo., 276 S.W.2d 201.

As to instructions, the first objection is to given instruction 11, one of a series of 14 given instructions: “The jury are instructed that the law of self-defense does not imply the right of attack; and if you believe from the evidence, beyond a doubt, that the defendant shot J. Y. Gasche unnecessarily, and when he did not have reasonable cause to believe that J. Y. Gasche was then about to kill him, or to do him some great bodily harm or some personal injury, then there is no self-defense in the case, and you cannot acquit the defendant upon that ground.” The objection is to the phrase “that the law of self-defense does not imply the right of attack.” Specifically, it is said that this particular phraseology in the instruction “unduly narrowed, restricted and limited his right of self-defense in view of the testimony surrounding the shooting in question.”

As the State points out, there were at least two other instructions dealing directly with the subject of self-defense and there is no objection to them. In the first place there was the principal self-defense instruction, number 6, which rather fully hypothesized the appellant’s theory. And, in connection with the defendant’s apprehension of “great personal injury to himself” there was an instruction as to Gasche’s “rash, turbulent and violent disposition.” There was an instruction on communicated threats and a delimiting instruction, number 10, on reasonable apprehension of danger. It is not necessary to again carefully distinguish and reconcile the cases, where the right of attack may have been necessary to the right of self-defense the language objected to should not be employed unless clearly qualified by facts, definition and further hypothesization. State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503. But instruction 11 does not stand alone (State v. Daugherty, Mo., 196 S.W.2d 627), it is one of a series, and the excerpted language is qualified by a hypothesis to which there is no objection— that Messley shot Gasche unnecessarily and when he did not have reasonable cause to believe that Gasche was about to kill him or do him some great bodily harm. State v. O’Leary, Mo., 44 S.W.2d 50. And from the State’s point of view there was an evidentiary basis for that particular factual hypothesis. State v. McCollum, 119 Mo. 469, 24 S.W. 1021, a murder case, but it may have been the case from which instruction 11 was adapted. Strangely enough very few of the instructions on this subject are in identical language, but most recently the language obj ected to was employed in a felonious assault case, State v. Finnell, Mo., 280 S.W.2d 110. There as here the instruction was one of a series and they were read together and following State v. O’Leary, supra, it was held that the instruction was not prejudicially erroneous. As stated, in this case the objectionable phraseology is qualified by further hypothesization and read in the series of which it is a part is not prejudicially erroneous for the reasons now urged. State v. O’Leary, supra; State v. Finnell, supra.

The other assignments of error are related and have to do with the court’s refusal to give defendant’s offered instructions 15, 16 and 17. Gasche was marshal of a city of the fourth class and instruction 15 stated that he did not have authority to make or attempt an arrest without a warrant, certainly not for a “quasi-criminal” offense, outside the city limits of Pierce City. City of Advance ex rel. Henley v. Maryland Casualty Co., (Mo.) 302 S.W.2d 28. The instruction then hypothesized, if the jury found that Gasche “attempted to unlawfully arrest the defendant” (presumably for running the stop sign), that the defendant had the right to resist, “meet violence with violence * * * even to the extent of taking the life of his assailant Likewise instruction 17 told the jury that as deputy sheriff of Lawrence County he had no authority to arrest in Newton County and if he attempted to make an arrest there for running a stop sign in Pierce City “the defendant would be justified in resisting such an arrest.” It is said that the court’s refusal to give instruction 15 "had the effect of ignoring the defense of resisting an mt-authorized and tmlazvful arrest(Italics supplied.) It is said that there was no “instruction of any kind on this question” and that “the right of the complaining witness to arrest the defendant was a vital issue going to the very heart of the prosecution.”

In part the appellant’s argument misconceives the theory and force of the right to resist an unlawful arrest. In homicide at least resisting an unlawful arrest does not “furnish a complete excuse for slaying the aggressor.” 26 Am.Jur., Homicide, Sec. 223, p. 308. And in the assault cases “the right to resist an unlawful arrest is a phase of the right of self-defense.” 6 Am.Jur.2d, Assault & Battery, Sec. 79, p. 72. As the appellant urges, however, if there is no evidence that he has committed a crime and the officer is making an illegal arrest, it is error to not instruct the jury upon the subject at all, certainly in homicide where resisting the trespass would reduce the offense to manslaughter. Roberts v. State, 14 Mo. 138; State v. Burnett, 354 Mo. 45, 50, 188 S.W.2d 51, 54. But this is not a homicide case, there is no problem here of reducing the offense in degree or grade, and the right to resist an unlawful arrest is not an unqualified right. 6 Am.Jur.2d, Sec. 79, p. 72. And if in his character as constable Gasche was about to arrest Johnnie for the rather minor offense of running a stop sign in Pierce City at midnight; it would seem that shooting the constable three times from the recesses of an automobile is disproportionate to the threatened trespass.

And attention must be called to the fact that Hacker v. City of Potosi, (Mo. App.) 340 S.W.2d 166, was overruled by the court en banc in Hacker v. City of Potosi, 351 S.W.2d 760. That decision indicates, at least inferentially, that there are other qualifications on the right to resist an unlawful arrest and that police officers in cities of the fourth class may lawfully perform certain functions or duties outside the city limits — as investigate the presence and identity of a motor vehicle. In the beginning no doubt Gasche pursued Messley because he ran the stop sign, but by the time he approached the stopped automobile in a fusilade of bullets the situation had indeed changed. There is no testimony as to Gasche’s purpose at that moment, he had only said, “Get out of the car.” Then, in addition to being constable of Pierce City, Gasche was also a deputy sheriff of Lawrence County, and even though outside his territorial jurisdiction could have been acting in a dual capacity on “a dual purpose mission.” And here, even though as deputy sheriff he was outside Lawrence County and had no warrant, if there was no offense in connection with the loaded gun (State v. Bordeaux, (Mo.) 337 S.W.2d 47), there was a serious offense by the time the appellant, without warning, shot three times and fled in a barrage of shots. State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Cantrell, Mo., 310 S.W.2d 866. And finally in this case unlike in State v. Browers, 356 Mo. 1195, 205 S.W.2d 721, there were a series of instructions relating to self-defense. And if the principal self-defense instruction erroneously failed to mention or in some manner correctly hypothesize the right to resist an unlawful arrest, the appellant has not objected to that instruction in his motion for a new trial, and in the particular circumstances of this record is in no position to now invoke the plain error provision of Rule 27.20 in support of his claims of error.

Proffered instruction 16 is an abstract instruction relating to and emphasizing the subject of “reasonable doubt.” No cases are cited in support of the appellant’s claim that the court erred in refusing to give this instruction. And in his brief the argument is that the instruction correctly “defined the law of reasonable doubt” and that his rights were adversely affected by the court’s refusal to give it. But in the principal instruction hypothesizing and defining the offense reasonable doubt is appropriately interpolated and preceding this the conventional abstract instruction on the subject was given and the court did not prejudicially err in refusing to give another on the same subject. 24B C.J.S. Criminal Law § 1923(2), p. 218; State v. Howard, 324 Mo. 86, 96, 23 S.W.2d 16, 19; State v. Hicks, 319 Mo. 28, 37, 3 S.W.2d 230, 234.

In addition to these specific assignments there is no error with respect to those matters the court is required to consider upon the record before it (Sup.Ct.Rule 28.-02) and for the reasons indicated the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    James B. REYNOLDS, Respondent, v. Elnorah M. LENGER and Frederick C. Lenger, Appellants.
    No. 49217.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 8, 1963.
    Charles D. Tudor, Jack Fleischaker, Roberts & Fleischaker, Joplin, for appellants.
    Ben F. Putnam, Henry Warten, Joplin, for respondent.
   BARRETT, Commissioner.

The trial court has entered a decree in favor of James B. Reynolds, age 79, in this his action against his daughter, El-norah, and her husband, Frederick C. Lenger, to have a quitclaim deed declared a mortgage, at the same time permitting him to redeem the property upon the payment of $400, together with interest from February 12, 1940. There were but two witnesses to the essential facts, Mr. Reynolds and Elnorah, and the reasonably permissible inferences from their testimony is indeed the crux of the matter. As of course the review of the appeal is anew (Sup.Ct. Rule 73.01, V.A.M.R.) but in view of the conflict in the oral testimony deference is accorded the findings and conclusions of the trial court. Miller v. Miller, 353 Mo. 884, 891, 184 S.W.2d 1011, 1014.

In April 1938 Mr. Reynolds and his wife made a down payment of $400 and purchased the property at 2202 Kentucky Avenue, Joplin, from the Home Owners’ Loan Corporation for the price of $4,000. To secure the balance of the purchase price Mr. and Mrs. Reynolds executed a note for $3,600, secured by a deed of trust on the property. The note was due in fifteen years, May 10, 1953, and was payable in monthly installments of $28.46. The Reynolds family then consisted of ten members, Mr. and Mrs. Reynolds, his mother and seven of their children. Elnorah, then 21 or 22, was the eldest of the children then at home and was employed in the post office. Mr. Reynolds says that in making the down payment of $400, "We both got all together we had and made the down payment.” He says that Elnorah furnished some of the money for the down payment and after-wards, from 1938 to 1940, when Mr. and Mrs. Reynolds gave her the quitclaim deed that she contributed further sums, “I figure she contributed $400 borrowed money.” Neither he nor Elnorah kept a record of their dealings and he does not remember the precise sum she contributed to the down payment or how much she thereafter advanced, “Well, if she felt like it. You know how children is.”

In any event, on February 12, 1940, Mr. and Mrs. Reynolds executed a quitclaim deed and conveyed the property to Elnorah for a recited consideration of “One Dollar and Other Valuable Consideration.” As to the circumstances of its execution, Mr. Reynolds says, “It was just on the spur of the moment. We were just getting up from breakfast * * * She had the blank deed herself.” As to the reason for executing the deed, he said, “I was just trying to make her money safe for her in case I would happen to drop off or the Mrs., why she could get her part, that was all I was trying to do. I guess I done it wrong.” On direct examination he had said, “I gave it to her to guarantee her payment of this money I borrowed from her.” He said she had loaned him $400 and “She wanted security for her money that I borrowed from her and I gave her that.” They did not then agree on a specific sum, but “Four hundred dollars is what I borrowed from her,” and “She just wanted a guarantee of what I owed her.” As to when the $400 was to be repaid, there was “No certain date. * * * Whenever we got ready to sell the place she would get her portion of it.” Thus the arrangement continued until 1959, when the family at home was reduced to Mr. Reynolds (Mrs. Reynolds died in 1946) and one adult son and he desired to sell the property and purchase a smaller place. In 1959 he made a trip to Elnorah’s home in California and made his wishes known. “Oh, about ’59 I got the thing paid for and I thought it was time then to sell and settle up.” Upon returning to Joplin he wrote her a letter and sent her a quitclaim deed but “She said she had a deed to it, that’s about all she said,” and she refused to let him sell the property. Thereafter Mr. Reynolds would not talk to El-norah, “In fact, I didn’t know children done that-a-way.”

Elnorah likewise did not keep any records and did not remember the purchase price, but as to the down payment said, “To the best of my knowledge I paid all of it.” She says that there were no family discussions as to whether her advances were a loan, but every month from then on, June 1938, to the date of her marriage, 1941, and even after moving to California, until “approximately 1943,” she contributed $60 a month to her father and mother. She says that she had nothing to do with the preparation of the deed, “I only remember that my father and mother signed this paper and gave it to me because they felt I had bought the house and it was mine when they finished with it.” As to her father’s possession of the property throughout the years, “It was his as long as he lived and when he was gone and had no further use for it, it was to be mine — that’s always been my understanding.” She said that his living in the property during his “lifetime” was not discussed, “it was understood. * * * I understood it and he understood it and my mother understood it. It was bought for them.” Nevertheless, she was given the deed “Because I bought it, that’s why.”

Mr. Reynolds’ testimony as to the indebtedness and its amount is not as definite and certain as might be desired, but in the circumstances is understandable, and in view of corroborating factors is sufficient to establish the requisite debtor-creditor relationship. Stafford v. McDonnell, 359 Mo. 925, 931, 224 S.W.2d 951, 955. There is no denial that some money was advanced, the only problem is the amount and the appropriate accompanying inference. Mr. Reynolds says the advances were a loan, Elnorah emphatically claims that “I had bought the house.” But in this connection even she concedes that there was a condition attached to her purchase and transfer, —“It was mine when they finished with it.” He says the condition was that when the house was no longer needed as a home and it came time to sell she was to be repaid. Unlike Bobb v. Wolff, 148 Mo. 335, 49 S.W. 996, this is not the usual or common commercial transaction, this was a family affair — father and daughter. Cobb v. Day, 106 Mo. 278, 17 S.W. 323. And if the transaction was as Mr. Reynolds described it, a loan of $400, a purchase price of $4,000 and now a value of $6,000, “[I]t is hard to understand why the father would deed the tract to them (son and wife) outright for $2,000 when it was worth over twice that.” Miller v. Miller, 353 Mo. 1. c. 891, 184 S.W. 2d l. c. 1014.

But it is not necessary to dwell upon the conflicting oral testimony, to ponder credibility or characterize particular testimony, there are many indisputable, compelling factors. Mr. and Mrs. Reynolds and their family moved into the premises in 1938, children left as they married until when this suit was instituted in December 1959 only Mr. Reynolds and one son remained. The undisputed fact is that Elnorah has never been in possession of the property and has never asserted any of the rights of either ownership or possession. On the other hand, Mr. Reynolds has been in continuous possession of the property for more than twenty years and during his occupancy has exercised, without the slightest suggestion from his daughter, all the prerogatives of absolute ownership. To briefly enumerate, he has put on “new asbestos” siding, built a wall around the porch and “three sets of steps,” put in two furnaces, put on two roofs and throughout the years has paid all taxes and insurance premiums. Elnorah has never paid any of these obligations or contributed to the improvements. And then for fifteen years there were the monthly payments of $28.46, all made by Mr. Reynolds. Incidentally, in 1951 Elnorah borrowed $500 from her father and repaid it shortly, she says with interest and he says without interest. In addition to his continuous possession and the improvements, in view of the relationship of the parties (father and daughter), there is the pertinent factor that Mr. Reynolds thought the transaction was a loan. Cobb v. Day, supra. Compare Holmes v. Fresh, 9 Mo. 201, a commercial transaction. And here there are no intervening rights of third parties, as between Elnorah and her father there has been no change in position and by redemption she will be made whole for all advances found by the court but without the onus of unjust enrichment. It is not necessary to indicate the further permissible inferences or to consider and distinguish the cases, for the reasons indicated the trial court appropriately decreed the quitclaim deed to be a mortgage. In addition to the cited cases numerous illustrative cases are collected in Powell v. Huffman, 358 Mo. 138, 213 S.W.2d 473, and the annotations L.R.A.1916B, p. 18; 79 A.L.R. 937; 155 A.L.R. 1104; 90 A.L.R. 953.

In addition to her claim that the evidence is insufficient to support the finding of a mortgage, it is urged that the court erred in finding (a) that laches did not apply, and (b) that she could have foreclosed the equity of redemption when the plaintiff asserted his claim and instituted this action. This matter was not a part of the decree, it was considered, however, in the court’s “memorandum opinion.” The latter point is somewhat obscure but the appellant states it in this language: “the plaintiff would be barred from recovery if he delayed in bringing such action until after the defendant’s right to foreclose had been barred by the statute of limita-' tions.” The various limitation statutes are cited, V.A.M.S. §§ 516.120, 516.150, 516.320, and it is said that the oral or other promises to pay were barred in either five or ten years, and the debt being barred, of course, the mortgage could not be foreclosed.

In part these arguments are answered by the inferential finding upon the essential merits of the cause, particularly by the finding as to the nature and duration of the obligation. Elnorah claims that the transaction was a purchase but even under her theory there were conditions and the transaction did not mature until “they were finished with it,” or “It was his as long as he lived and when he was gone and had no further use for it, it was to be mine — that’s always been my understanding.” Mr. Reynolds’ version was that the transaction was a loan and was not to be paid until the property was no longer needed as a home and was to be sold. But as to lapse of time in general, an equitable mortgage is a device of equity and likewise the doctrine “of laches and stale demands are applicable to a suit to secure such relief.” Annotation 28 A.L.R. 554; 19 Am.Jur., Equity, Secs. 490, 501, pp. 339, 346. As stated, Mr. Reynolds has remained in possession of the property from the date of purchase in 1938, he has made and paid for extensive repairs and improvements, paid all taxes and insurance premiums and for fifteen years made the mortgage payments — all these matters have their inferential bearing on laches. Niehaus v. Shetter, 78 Or. 447, 153 P. 486. It is repeating, perhaps unnecessarily, but other than the repairs and improvements by Mr. Reynolds there has been no change in either the property or the relationship of the parties. It is true that Mrs. Reynolds died in 1946, but it does not appear that she could have added to the known facts and Elnorah does not assert that her mother could have supplied additional information. Thus there has been no material loss of either record or oral testimony by reason of the lapse of time. Compare: Younger v. Evers, 333 Mo. 931, 64 S.W.2d 936; Brandt v. Manson, Mo.App., 207 S.W.2d 846, 853.

With respect to the second phase of the argument, Elnorah’s reciprocal right to foreclose, “if the right of the grantee to extinguish the equity of redemption by foreclosure is barred by limitations, the right of the grantor to have the deed declared a mortgage and redeem therefrom is likewise barred” (28 A.L.R., 1. c. 559), the obligation was not in fact barred. In the cases relied on, as well as those cited in the annotation, the obligations, there notes, were all barred by the applicable statutes of limitation and of course thereafter the security devices could not be foreclosed. Then, as the respondent urges, there is this inherent inconsistency in Elnorah’s position; from May 10, 1938, until Mr. Reynolds made the final payment on May 10, 1953, the property was encumbered with the $3,600 Home Owners’ Loan Corporation mortgage and she did not so much as offer to make one of the 159 payments or inquire whether they were made. In these circumstances in this proceeding in equity the appellant’s plea of laches is not compellingly impressive.

For the reasons indicated the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. William Elmer KNICKER, Appellant.
    No. 48852.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Motion for Rehearing and for Transfer to Court En Banc Denied April 8, 1963.

      William Elmer Knicker, appellant, pro se.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

Defendant, William Elmer Knicker, and his brother, Albert Frederick Knicker, were jointly charged with the crimes of burglary in the second degree of and stealing from the drug store of Grover C. Finley in the City of St. Louis certain property of the value of at least fifty dollars. The information invoked the provisions of the habitual criminal act and alleged that each had been priorly convicted of certain felonies. After both had pleaded not guilty, this defendant, William Elmer Knicker, was granted a severance. Trial of that case to a jury resulted in a verdict finding him guilty of stealing property of a value of at least fifty dollars and not guilty of burglary. After hearing evidence out of the presence of the jury, the trial court found that he had been priorly convicted of three felonies and determined that he be committed to the Department of Corrections for imprisonment for a term of ten years. Following hearing and overruling of his motion for new trial, he was granted allocution and, the court finding that he had failed to show legal cause why judgment should not be pronounced as assessed by the court, he was adjudged guilty and sentenced to the term of imprisonment assessed by the trial court. He appealed, following which counsel who had represented him and was present at all stages of the trial and after trial proceedings, by-leave of court, withdrew from furthej representation of him. Defendant has filed in this court a brief pro se. We shall make use of it to the extent of the errors properly assigned in the motion for new trial. S.Ct. Rule 27.20, V.A.M.R.

The evidence adduced in behalf of the State warranted a finding of the following facts. Grover C. Finley, a registered pharmacist, was the owner and operator of a drug store located at 5616 Delmar Avenue. His son, Jack Finley, was associated with him in the business. On Sunday afternoon, August 14, 1960, Jack was at the store for about half an hour. Upon leaving, he checked the two entrance doors, front and rear, and saw that the store was securely locked. At that time an iron safe weighing about 300 pounds was in the rear of the store. In the safe were certain personal papers, nine rolls of pennies, one roll of dimes, “possibly” a roll of nickels and other silver coins, all of which money totalled approximately thirty dollars. There were also narcotics and other drugs in the safe of approximate value of $18.00. The money, narcotics and other drugs belonged to Grover C. Finley. There were also-in the safe thirty dollars in money orders of the Consumers Money Order Company which had been placed in the care and custody of the Finley Drug Store. Jack Finley described these money orders as “cash,” “folding money,” “paper money [belonging] to Consumers Money Order Company.” Grover C. Finley described them as “cash — four or five money orders.”

About 3:15 on Monday morning, August 15th, Patrolman Raymond Auld of the St. Louis Metropolitan Police Department “tried” the doors of the drug store and found them secure, back and front. When Jack Finley came to the store later that morning, he observed that the rear door was broken open, its lock was broken and the iron safe and its contents had been stolen from the store.

About 11 o’clock that morning, police detectives O’Connell and Harmon began surveillance of a two-door, grey 1954 Ford automobile, which they were told was the property of defendant’s brother, Albert, and which was parked near Seventh and Lynch Streets. After watching the car for about one and one-half hours, Harmon called the police station and police officers Molloy and Spiess came out to Seventh and Lynch. O’Connell and Molloy investigated the vicinity for about 30 to 45 minutes, during which time Harmon and Spiess maintained surveillance of the car. The latter two officers saw three men approach the car from the direction of an alley. As these men approached the car, Spiess recognized defendant and his brother, Albert, both of whom he knew. He did not know the third man, later identified as Edward Stuckmeyer. As the three men approached the car, both officers saw defendant carrying a brown paper bag which they saw him place inside the car through an open window on the right side of the car. The officers thereupon arrested defendant, his brother, Albert, and Stuckmeyer. They then searched the car and found in the right front seat the brown paper bag which they had seen defendant place inside the car. In that bag, which was the only bag in the car, they found bottles with labels bearing the names of opium, cocaine and other narcotics, approximately $31.00 in silver, consisting of nine rolls of pennies, one roll of dimes, one roll of nickels, about 68 quarters and other loose coins. These were initialed and placed in a box by Spiess. Defendant and Albert were taken to the police station.

Later that afternoon, O’Connell and Harmon went out to the “foot” of Branch Street, where they found the stolen safe. It had been broken open and the contents removed. A hoist and tow truck were used to take it to the police laboratory. The safe so found and the articles in the brown sack in the right front seat of the car were identified by the Finleys as the safe stolen from the store and some of the contents of that safe when stolen. Later, the same afternoon, defendant, Albert and Stuck-meyer were taken singly into the police laboratory, where debris from their clothing was microscopically examined. Nothing of significance was found in the debris taken from defendant’s or Stuckmeyer’s clothing. Examination of the debris from Albert’s trousers by William Storer, an admittedly qualified chemist for the St. Louis Police Department, revealed a fragment of two-layered paint, pink over green in color. Microscopic examination of that fragment showed it to be identical in color, texture and layering sequence with a fragment of paint which Storer had removed from the rear door of the drug store at the point of the “pry marks” where the lock was broken. A color photograph of the paint specimens as taken by the witness was then, over objection of defendant, displayed through a projector to the jury.

The evidence in behalf of defendant consisted of the testimony of his wife, which was to the effect that defendant and she were together in the home of her sister all day, Sunday, August 14th, throughout the night of August 14 — 15th and until midmorn-ing of the 15th.

Defendant contends that, inasmuch as he was acquitted of the charge of burglary and that (he further contends) there was no “positive” proof that the value of property stolen was at least fifty dollars, the court of its own motion should have given an instruction to the jury as to the punishment prescribed for the stealing of property of the value of less than fifty dollars. See § 560.161, RSMo 1959, V.A.M.S., (to which revision all statutory references herein are made). None of the cases cited by defendant in support of his contention are even remotely in point under the facts here shown. All of the evidence (there was none to the contrary) was that the property stolen from the safe consisted of at least thirty dollars in coins, narcotics and drugs of the value of eighteen dollars, and money orders in the care and custody of the Fin-leys of the cash value of thirty dollars, a total of at least seventy-eight dollars. There was no evidence as to the value of the safe, but, inferably, it was of some value. There being no evidence tending to show or warranting a finding by the jury that the property was less than fifty dollars in value, there was nothing in the case upon which the court lawfully could predicate such an instruction. State v. Jordan, Mo., 235 S.W. 2d 379, 383; State v. Brewer, Mo., 338 S.W. 2d 863, 868. The contention cannot be sustained,

Defendant’s brief further asserts that the evidence tending to show his brother Albert’s complicity in the burglary was “intended to determine * * * the guilt * * * of [defendant], without giving due notice of such intention * * * in order that he might have prepared a defense to such unorthodox procedure.” That contention is without merit. In this connection it should be noted that the motion for new trial alleges that the admission of the fragments of paint into evidence permitted the jury to determine the guilt of another rather than the guilt of defendant and that the relevance of the evidence was slight and its value was greatly outweighed by the prejudice which it introduced into the trial. The evidence in those respects, which we need not restate, tended strongly to show that defendant had in his possession some of the property which, under the circumstances shown in evidence, he knew to have been stolen. The recent, exclusive and unexplained possession of portions of the property stolen in the course of the burglary clearly warranted the finding that defendant was one of the thieves. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 453; State v. Hite, Mo, 298 S.W.2d 411, 412; State v. Dobson, Mo, 303 S.W.2d 650, 651. Furthermore, the fact that the jury did not find defendant guilty of burglary demonstrates that it was not prejudiced against him by the evidence which tended to show that Albert physically participated in the burglary. These contentions are denied.

A further contention is that the court erroneously “allowed the introduction of evidence of another crime to be interjected into said trial, to-wit: possession of narcotics.” The narcotics shown to have been in the possession of defendant were those shown to have been in the safe stolen from the store. They were a part of the corpus delicti and therefore competent, relevant and material.

A further contention is that the court, over objection of defendant, erroneously allowed the chemist, William Storer, to display a “slide” through the projector to the jury, for the reason that although Storer was an admittedly qualified chemist, he was not shown to be an expert in the production and development of the photograph shown through the projector. There is no suggestion in the record that the slide did not accurately portray the specimens as the witness had described them. In fact, he pointed out on the picture the colors of each specimen as he had observed and orally described them to the jury. Under the circumstances here shown, admission of the picture was not prejudicially erroneous. State v. Brown, Mo, 312 S.W.2d 818, 822. It was not necessary that the witness qualify as an expert photographer. The fact that the slide portrayed his observation of the specimens as he had orally described them made it admissible. State v. Duncan, Mo., 316 S.W.2d 613, 619. See also State v. Moore, Mo., 303 S.W.2d 60, 65 [1], [2],

A further contention is that “the trial court erred in the giving of instruction number one in that it injected into the trial the guilt or innocence of a person not then on trial.” The portion of that instruction to which defendant refers, in essential part, reads:

“The State of Missouri by the Amended Information * * * charges the defendant, WILLIAM ELMER KNICKER and ALBERT FREDERICK KNICKER with the offense of Burglary in the Second Degree and Stealing. A severance has been granted and the defendant WILLIAM ELMER KNICKER is now alone on trial, and he pleads not guilty, thereby raising an issue of fact between said Defendant and the State of Missouri, which you must determine from all the evidence in the case.
“It is the duty of the Court to instruct you on all questions of law arising in this case and it is your duty to receive such instructions as the law of the case, and to find the defendant William Elmer Knicker, guilty or not guilty, according to the law as declared by the Court.”

The identical point here raised was considered by this court in State v. Deppe, Mo., 286 S.W.2d 776, 780-781, wherein it was said: “In a case where several have been jointly charged, although it would seem to be unnecessary, it is not necessarily prejudicial to a defendant who has been granted a severance to allude or instruct as to the fact, upon his separate trial, that he had formerly been jointly charged with others.” Again, we suggest that the giving of the portion of the instruction above quoted served no purpose, but we do not find it to have been prejudicial. The contention is overruled

A further contention is that “the court erred in refusing to give an alibi instruction in accordance with the evidence of defendant.” The court gave instruction No. 8, reading as follows:

“You are instructed that one of the issues in this case is what is known as an alibi; that is, it is claimed that the defendant was at another place at the time the alleged crime was committed. If, from all of the evidence you have a reasonable doubt as to whether the defendant was present when the crime was committed, then you should give the defendant the benefit of such doubt, and find him not guilty.”

That was sufficient. State v. Howe, Mo., 343 S.W.2d 73, 75, and cases therein cited.

A further contention is that the trial court erred in giving instructions Nos. 2, 3 and 4 “for the reason that said instructions * * * assume that there were two or more persons guilty of committing the crime, whereas there [was] no evidence offered by the state to warrant such assumption and * * * the court invade [d] the province of the jury, and instructed[ed] the jury as to alleged facts not established by the evidence.” Instruction No. 2 stated:

“All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly, is the act of all and of each one so acting. However, the mere presence of one at or near the scene of a crime who does not render him liable as a participator therein. If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal or otherwise, and should be acquitted. If, however, a person be present, and by words or actions, aids, abets, assists, advises or encourages the crime with the intent that the words or acts should encourage and abet the crime committed, then that person is equally guilty with the person or persons who actually commit the physical deed.”

Instruction No. 3, which submitted the issue of defendant’s guilt of the burglary charged in the information, included as one of the hypothesized findings that “the defendant, either acting alone or jointly with another, did” etc.; and further therein hypothesized a finding that the defendant “was present aiding, abetting, assisting or encouraging another if necessary, in wrongfully, forcibly and burglariously breaking” etc. Instruction 4, which submitted the issue of defendant’s guilt of stealing in connection with the burglary charged, also hypothesized findings similar to those above ■quoted from Instruction No. 3.

Defendant is in error both in asserting •that either of these instructions assumes there were two persons guilty of committing the crime of which he was found guilty :and that there was no evidence to warrant ■such assumption. None of these instructions assumes any fact whatsoever. They merely correctly declare the law applicable to evidence such as was shown. The evidence with reference to the paint fragments tended to show that Albert was present and physically participated in breaking into the drug store. The weight and dimensions of the safe warrant an inference that more than one person engaged in its removal from the store and transportation to the point where it was found. The fact that defendant and Albert were together as they approached the car under surveillance and that defendant was carrying some of the stolen property which he placed into the car warranted and required the giving of the series of instructions, Nos. 2, 3 and 4. Instructions such as these, given under the circumstances here shown, are proper and have been many times approved. State v. Russell, Mo., 324 S.W.2d 727, 732; State v. Reece, Mo., 324 S.W.2d 656, 660; State v. Johnson, Mo., 347 S.W.2d 220, 223; State v. Harris, Mo., 351 S.W.2d 713, 717; State v. Ruffin, Mo, 286 S.W.2d 743, 748; State v. Present, Mo, 344 S.W.2d 9, 10-11; State v. Siekermann, Mo, 367 S.W.2d 643. The contention is without merit.

A further contention is that instructions Nos. 4 and 5 “are so contrary as to what they respectively charge that the jury could not reasonably have followed them and were left to their own conjecture as to the verdict.” S.Ct. Rule 27.20 requires that the “motion for a new trial * * * must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” It is readily seen that the assignment states the bald general conclusion of conflict in the instructions which, he contends, renders them not reasonably understandable by the jury, without any specification whatever as to the manner in which the conflict allegedly exists. Instruction No. 4 hypothesizes the issue of defendant’s guilt of stealing in connection with commission of the burglary. No. 5 hypothesizes a finding that if the jury finds defendant not guilty of burglary and then submits the issue of his guilt of stealing property of a value of at least fifty dollars. We find no conflict in them. The contention is denied.

Defendant’s pro se brief also contains a “point” insisting that the court erred in refusing his motion for a verdict of acquittal for reasons that “by the states failure to establish by substantial evidence the body of the crime, the essential elements thereof, or the corpus delecti of the case, including the essential elements of the agency of the defendant therein, or to establish by circumstantial evidence, sufficient evidential facts to warrant a reasonable presumption of guilt, the Court erroneously and prejudicially abdicated its duty to decide all points of law in the case, and did, in effect by such denial of said motion and request inform the jury that according to the law, the state had submitted sufficient proof to warrant a guilty verdict, all of which is in violation of the due processes of law clauses of the Constitution of Missouri, as well as the Constitution of the United States.” Suffice to say that no such assignment was made in the motion for new trial. Furthermore, all of the alleged specifications of error therein set forth, and which he for the first time contends deprived him of due process of law in violation of the State and Federal Constitutions, have been hereinabove considered and ruled adversely to him.

Examination of the amended information under which defendant was tried shows it to be in due form. Sec. 560.156; State v. Zammar, Mo., 305 S.W.2d 441, 442-445; State v. Brewer, Mo., 338 S.W.2d 863, 866. The verdict is sufficient in form and responsive to the issues under which defendant was charged and tried; the punishment assessed is within the limits provided by law, §§ 560.161, 556.280; and the judgment is in due form of law.

The judgment is affirmed.

All of the Judges of the Division and HUNTER, Special Judge, concur.