author: ALVIN C. RANDALL, Special Judge.

text:
    James O. BUNYARD and Opal Bunyard, Respondents, v. J. M. TURLEY and Lucy Turley, his wife, Laura Robinson and E. T. Robinson, her husband, Appellants.
    No. 52780.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondents.
    Earl R. Blackwell, Hillsboro, for appellants.
   ALVIN C. RANDALL, Special Judge.

Plaintiffs’ action seeks an adjudication to the effect that they have acquired an easement by prescriptive use. The judgment in the trial court was for plaintiffs for part of the relief prayed for, and defendants appeal.

Plaintiffs own a tract of land lying immediately east of and adjacent to Jefferson County Highway JJ, also known as old Highway 61. J. M. and Lucy Turley own a tract of land adjoining plaintiffs’ land on the north. There is, and has been since about 1907, an unimproved roadway running generally east and west at or near the line dividing the two properties. Plaintiff James Bunyard testified that the north tract was owned by Mr. and Mrs. Turley and Mr. and Mrs. Robinson. The Robinsons are not again mentioned in the evidence; nor are they mentioned in the petition, although they are named in the caption. No answer on their behalf appears in the transcript and no order specifically naming them appears. The answer contained in the transcript is the separate answer of Mr. and Mrs. Turley. The judgment of the court is against “defendants”. Any further reference in this opinion to “defendants” should be taken to mean Mr. and Mrs. Turley.

In Count One of their petition plaintiffs allege that they possess an easement, by reason of adverse use for more than 10 years, of a 10 foot strip of land to which defendants hold record title. It is alleged that the strip of land extends from the east side of Highway JJ eastward for a distance' of 580 feet. It is pinpointed by an exact legal description by metes and bounds, with references to sections, townships, ranges and iron pins. Count One prays that the court declare title to the easement in plaintiffs and enjoin defendants from interfering with plaintiffs’ rights. Count Two alleges that in November 1961 defendants constructed a fence on the south side of said 10 foot strip of land, that plaintiffs removed the fence, and that defendants then reconstructed it. The court is requested to enjoin the defendants from maintaining the fence or otherwise obstructing the roadway. Count Three is for damages. Defendants filed a general denial. The judgment is to the effect that plaintiffs own an easement in the 10 foot strip of land, but only from a point commencing 141 feet east of Highway JJ and extending 126 feet to the east from that point. Defendants contend that the judgment should have been in their favor. Respondents assert in their brief that the judgment should have held that they are entitled to an easement in the strip for a distance of 400 feet.

The testimony of each witness is very confusing, and it is difficult to say that any fact is established with any reasonable degree of certainty. However, by carefully studying the entire transcript and by placing the implications of one witness alongside the approximations, suggestions and speculations of another witness, one is able to draw some reasonable inferences with regard to some of the facts.

About 1907 a Mr. Nick Decker, who lived somewhere east of the properties now owned by the parties to this action, “cut” a road from his house to Highway JJ. Plaintiffs say they have used the road since 1931, when they bought a piece of land somewhere in that general area. Plaintiffs bought the 32 acre tract on which they now live in 1933. They bought the 5 acre tract on which defendants now live in 1936, and sold it to defendants in about 1946. The deed to defendants made no reference to the road nor to an easement, according to the testimony of the parties, although the deed was not offered in evidence. Plaintiff Opal Bunyard testified that at the time of the sale her husband stated to Mr. Turley that the road was partly on each tract of land, and Mr. Turley said that he understood. Lucy Turley denied that there was any conversation about the road, and Mr. Turley did not testify. Sometime in the late 1940’s plaintiffs constructed a home on the 32 acre tract. From that time until 1958 plaintiff James Bunyard, according to his testimony, spent some time at the home, but actually lived and worked in St. Louis. He retired in 1958. Plaintiffs’ home and a carport are near the old roadway and to the south of it. The distance the buildings are east; of Highway JJ is not established. The Turleys live in a home north of the old roadway, and apparently fairly close to the Bunyard home. A few people who lived to the east of the parties’ properties used the old road many years ago. The number of users is not established by the evidence, but it was probably never more than three or four. Some witnesses said it was sometimes used to get to a school, but another witness said that it did not go1 as far as the school. At some time after the road came into existence a “county road” was established. The evidence does not reveal when it was constructed nor where it was constructed. However, since the witnesses state that this reduced the use of the road by residents to the east, we must assume that it was built in such a location that it was more convenient for the residents to use than it was for them to come down the old roadway to Highway JJ. When plaintiffs purchased the 32 acre tract in 1933, there were only two people other than plaintiffs using the road. At the time this controversy arose the only person using the road other than the plaintiffs was a Mr. Bequette. He owns some property to the east, but has no home on it. Since defendants constructed the fence, they permit Mr. Bequette to use the roadway to the north of the fence when he has occasion to come to Highway JJ.

At some place east of Highway JJ and west of plaintiffs’ home there is an oak tree, about two feet in diameter, somewhere near the middle of the old roadway. In 1952 or 1954 defendant J. M. Turley parked an old truck in the roadway near the tree. Defendants’ evidence is that it was about the center of the roadway, and plaintiffs’ evidence is that the truck was on the north edge, but in the roadway. The truck remained there for a few years, during part of which time there were no tires on it. Plaintiffs voiced no complaint about this obstruction. In approximately 1957 defendants complained that plaintiffs’ automobile had been brushing against some rocks which defendants had placed at the north bank of the roadway to prevent washing, and thereby dislodging them. Plaintiff Opal Bunyard arrived one day in her automobile and found that there were two large stones in the middle of the roadway. She asked Mr. Turley why he put them there and he told her he did not want her “driving on this road” and said, “Just drive over on yours”. She told him she could not get through because of the mud. In about 1960 defendants constructed a fence for a distance of 400 feet, east from Highway JJ. It is in line with the oak tree. Plaintiffs removed the fence. Defendants reconstructed the fence, and this action followed.

We hold that whatever use plaintiffs made of any part of defendants’ land prior to 1957 was permissive and could not ripen into a prescriptive right. Mr. Bun-yard testified that the roadway was 24 feet wide, and that the entire roadway “was used”. He did not expressly state that he used all 24 feet. Such testimony could not be accepted as the basis for imposing a burden on defendants’ property. A right of way of 24 feet is enough to accommodate a modern three lane highway. It is completely illogical and contrary to human experience to assert that a country road, with no permanent improvements and carrying an extremely limited amount of traffic, is used by all motorists, including plaintiffs, continuously for 10 years over the entire width of the 24 foot roadbed. Do the circumstances lead to the conclusion that there is one road, 24 feet wide, used in common by the two property owners, the use by each being of such character as to be adverse to the right of the other to have exclusive use of his own property? It is at least just as logical to infer from the circumstances that there are two roadways, one on each side of the property line. The fact that a tree was permitted to grow and remain near the middle is not consistent with the proposition that the parties considered it to be a single, indivisible, 24 foot roadway. We must not only, in determining whether the use was adverse or permissive, look to the conduct of the parties, but also to the physical facts. The conclusions to be drawn from the conduct of the parties where there is a driveway at or near a property line may he entirely different from the conclusions to be drawn from the same conduct of the parties in those cases in which one man establishes and uses a driveway through another man’s property. In the first type of situation, if one man strays across the line, it may be interpreted as an act of temporary convenience, or even of inattention. The acquiescence of the owner of the property upon which there has been an encroachment, may be permissiveness, within the meaning of the law, until there is some reason to believe his neighbor is acting in a manner adverse to the rights of the owner. In Anthony et al. v. Kennard Bldg. Co., 188 Mo. 704, 87 S.W. 921, 926, this court said:

“If the owner of the Ames property had stationed a guard to warn the Abadie tenants to keep within the limits of their own 2 feet 1¾ inches, the act could have been attributed to no motive except a desire to show an unfriendly or unneighborly feeling. If the tenants of the Abadie property, in passing through the alley, from the front to the rear of their premises, veered a little to the east and got on the Ames side of the line, how was it practicable, even if desirable, to keep them off?”

And there is no proof that defendants ever knew, except in 1957 when plaintiffs’ “side” of the road was muddy at least at one point, that plaintiffs ever used that part of the road which is on defendants’ property. To establish a prescriptive right there must be proof of actual knowledge by the landowner, or use of such a character that knowledge will be presumed. Burnett v. Sladek, Mo.App., 251 S.W.2d 397, 400. Plaintiffs rely on the proposition that, in the absence of a showing that the use was permissive in its origin, proof that the use was open, continuous, visible and uninterrupted for a 10 year period casts the burden on the landowner to prove that the use was permissive, rather than adverse, citing Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, and Dalton v. Johnson, Mo., 320 S.W.2d 569. First, plaintiffs have not sustained their burden of proving that they used the northern portion of the 24 foot roadway “openly, continuously, visibly and without interruption” for the necessary 10 year period. Second, the physical circumstances were entirely different in the cases cited by plaintiffs. In both instances the passageway was across and over defendant’s land. There was also additional evidence indicating adverse use. In the Dalton case, for example, the passageway had been enclosed by a fence for many years, which had deteriorated and been replaced or repaired at various times. In the Fassold case it was conceded that the landowner had, sometime after plaintiff commenced using the passageway, requested and secured plaintiffs permission to move a wire fence closer to the passageway than it had been previously. And in both cases it was established beyond any question that the use had been open, continuous, visible and uninterrupted for the prescribed period.

If we accept as true, for the moment, the allegations of the petition, to the effect that the fence has been built at the south edge of the 10 foot strip in which plaintiffs claim an easement, it is apparent that plaintiffs at all times had 14 feet of roadway, under their own testimony, on which to travel. Therefore, considering the states of mind, attitudes, and motives which give meaning to the conduct of individuals, there would appear to be no reason, good or bad, selfish or unselfish, why plaintiffs would assert an adverse claim to any of defendants’ land, in order to drive to and from Highway JJ. When the issue must be determined from physical facts and the conduct of the parties, it may assist us in determining whether, in fact, the use was adverse if there was no necessity or reason for asserting an adverse claim. Jaeger v. Reynolds, Mo., 276 S.W.2d 182, 186.

Whether there exists in this case one roadway, or two roadways side by side, its—or their—comparatively impermanent character is a circumstance to be considered, although it is not conclusive in itself. Jaeger v. Reynolds, supra, 276 S.W.2d l.c. 187. Plaintiff James Bunyard testified that he has put ten loads of rock and gravel on the road from 1933 to 1963. There is no other evidence of maintenance. This is very little maintenance over a period of thirty years for a road that is 24 feet wide and 400, or 580, feet long. In 1957, when Mr. Turley put some stones in the road to keep Mrs. Bunyard off the north side of the road, it is a reasonable inference from Mrs. Bunyard’s testimony that the reason she protested was that there had been a lot of rain and the south side of the road was so muddy as to be impassable.

A finding of adverse use, which is essential to the acquisition of an easement by prescription, is not supported by the evidence in this case. White v. St. Louis Post Offices Corporation, 348 Mo. 961, 156 S.W.2d 695, 700.

There is another reason why plaintiffs are 'entitled to no relief in this case. There is no substantial evidence to prove what part, if any, of the alleged 24 foot roadway is on defendants’ property. There were no deeds, plats, nor surveys introduced into evidence. Nor did any surveyor testify. The oral testimony established that defendants’ property lies north of plaintiffs’ property. The existing fence, the construction of which precipitated this lawsuit, extends from Highway JJ due east a distance of 400 feet, but there is no testimony concerning the distance that defendants’ property extends east of the highway. Plaintiff James Bunyard testified that the roadway is 24 feet wide, with 14 feet being south of the existing fence and 10 feet north of the fence. The fence runs due east and west but the road is “not running truly east and west, it has some angles in it”. But where is the property line with respect to the road or the fence, or “the big oak tree” ? Mr. Bunyard made the general statement that the roadway is “along that boundary line”. He further testified as follows:

“Q How far over on your property did this roadway extend?
“A Well the way the fence is divided there, it’s 14 foot.
“Q I see. And how far over on the Turley property does it extend?
“A Ten foot.”

In view of the fact that the existing fence is in line with the oak tree, and in view of Mr. Bunyard’s subsequent testimony, it is reasonable to infer that Mr. Bunyard did not mean that the property line was where the existing fence is located, but only that the roadway itself extended 14 feet south and 10 feet north of the fence. And the subsequent testimony of Mr. Bunyard reveals that he has no idea where the line is with respect to the road. He testified as follows:

“Q You actually sold this property to the Turley’s didn’t you?
“A That’s right.
“Q When you sold it to them you told them that Black Oak Tree there was on the line, didn’t you ?
“A I did not. * * *
“Q This old fence that was there, is that along the same line now, the new fence?
“A A little south of that.
“Q A little more on you, this old fence was?
“A Yes, that’s right. * * *
“Q Where does this fence go to from that Old Black Oak, where does that go to?
“A It goes due east.
“Q Is that the same direction this other fence goes?
“A That is the fence, yes.
“Q Fm talking about that old fence you’re talking about.
“A That’s right.
"Q All right, what about it, which way did it go?
“A It went due east.
“Q When was that in there?
“A That was there when I bought this property from Mr. Turley that was about, or from Mr. Fraizer, I bought that about ’33.
“Q 1933 and then you took out the fence?
“A I didn’t take it out right away, no, it wasn’t taken out until I started to build up there, that was about, I forget, I think it was around ’44 or ’45. * * *
“Q Now you say it’s been a roadway for what, how many years ?
“A That I know of since 1931.
“Q 1931? Still you say when you went there in ’31 there was a fence there ?
“A This fence didn’t block the road the road wasn’t closed, there was a fence on each side of the road at that time, there was a fence over on the 32 acres and a fence over on the 5 acres.
“Q Where would this fence from this Black Oak go, which side was it on?
“A It was on the south side.
“Q It was on the south side, is that your north line?
“A Yes sir.
“Q That was your north line when you purchased it?
“A That’s right.
“Q Was the fence that run east from the Old Black Oak Tree?
“A That’s right.
“Q Then later you purchased that over south of the fence, is that right?
“A North of the fence.
“Q All right, you purchased north of the fence, who did you buy that from ?
“A I bought that from Mr. Pannell.
“Q Where did your line start north of the fence, did it start at the fence or where did it start?
“A No, it started over on the north side of this roadway.
“Q You bought that land?
“A I think that was about ’36. * *
“Q Does that fence at the present time occupy the same line that the old fence occupied?
“A No, it’s north of it.
“Q It’s north of it about how far?
“A I’d say a couple of feet.
“Q A couple of feet north ?
“A The survey we had made there when I bought this property, there’s a steel peg that the surveyor drove in the center, it’s about 4 foot north of this Black Oak Tree, so we come over here and couldn’t find the records of that survey that was made, but that was when I bought this property from Frazier that that survey was made and that peg is still standing there today right in the center of that road about 4 foot from that wall that he’s put up there. Now the surveyor that he brought there got a different survey on that, he goes about 4 foot south of that peg that we made in, I think it was, 1934 or ’35.”

If this testimony means anything at all, one might conclude that the property line is at the black oak tree, or that it is four feet north of the black oak tree, or that it is somewhere south of the black oak tree, or that there are two property lines, one at the north edge of the roadway and one at the south edge of the roadway. There was no other evidence concerning the location or description of defendants’ land.

The petition, as previously mentioned, referred only to a 10 foot strip of land which plaintiffs had allegedly used for more than 10 years. It was described only by references to ranges, townships, sections, quarter sections and iron pins. There was no effort to connect any of the physical conditions or objects mentioned in the evidence — not even the road itself — with the allegations of the petition.

This cause is reversed and remanded with instructions to the trial court to set aside the judgment for plaintiffs and enter judgment in favor of defendants.

FINCH, P. J., and EAGER, J., concur.

DONNELLY, J., not sitting.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael Alvin THOMPSON, Appellant.
    No. 52958.
    Supreme Court of Missouri, Division 1.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Austin B. Speers, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Daniel P. Reardon, Jr., St. Louis, for appellant.
   WELBORN, Commissioner.

This is an appeal from a judgment of conviction for possession of narcotic drugs, with punishment, under the second offender act, of seven years’ imprisonment.

On July 26, 1966, at around 9:30 in the evening, the appellant, Michael Alvin Thompson, was noticed by St. Louis police officers as he started his 1964 Oldsmobile convertible at the stop light at Delmar and Goodfellow. Because Thompson “squealed” his tires as he made a left turn from Goodfellow onto Delmar, the police officers, riding in a police car, pursued Thompson, with their red spotlight flashing. Thompson made a right turn into DeBalivi-ere Avenue, one block east of Goodfellow. The officers noticed Thompson throw a small package out of his auto after he turned onto DeBaliviere. Shortly after he did so, his auto came to a stop with the police vehicle behind it and one of the officers got out and told Thompson that he was under arrest for “improper starting.” The other officer walked back some seventy feet to the vicinity of where Thompson had thrown the object from his auto and found a small envelope containing a substance which he believed was marijuana. The officer returned to where Thompson and the other officer were at the automobile and Thompson was told that “he was going to be charged with the additional charge of possession of marijuana.” Thompson was taken to a police station where he was booked on that charge. At the police station, his clothing was taken from him. Subsequent examination at the police laboratory of the shirt and trousers which Thompson wore revealed traces of marijuana.

After an information had been filed, charging Thompson with illegal possession of a narcotic drug, based upon the quantity of the contents of the package found in the street, Thompson filed a motion to suppress the use in evidence of marijuana in the hands of the police on the grounds that such evidence had been obtained in a search at a time when appellant had not been subject to a lawful arrest. A hearing was held on the motion, at which it was shown that, in addition to the marijuana found in the street, a search of Thompson’s auto at the scene of his arrest had uncovered a quantity of the drug which was then in police hands. The judge who heard the motion to suppress concluded that there was no valid basis for an arrest of the appellant for “improper starting,” there being no evidence that the start had endangered persons or property. The court held that the evidence obtained in the search of the vehicle should be suppressed, but that the contents of the package were not the result of any search incident to an arrest and overruled the motion as to that item.

When the case came to trial, the motion to suppress was renewed with respect to the defendant’s clothing and the evidence obtained on analysis thereof. The motion was overruled by the trial court, apparently on the theory that at the time that defendant’s clothing was taken he had been made the subject of a valid arrest for possession of marijuana and the taking of the clothing was a proper incident of such arrest.

At the trial the two police officers testified to the circumstances of the arrest. They identified the package which they saw defendant throw from his auto and which was found by the police laboratory technician to contain 2.59 grams of “Cannabis Sativa, known as marijuana.” The laboratory technician also testified that “microscopic examination of debris removed from the shirt pocket and the pants pockets showed the presence of marijuana.”

The case was submitted on such evidence, the defendant electing to stand on a motion for acquittal at the close of the state’s case. The jury returned a verdict of guilty. The court fixed the punishment at seven years’ imprisonment. After motion for new trial had been overruled, this appeal followed.

The first assignment of error on this appeal relates to the court’s failure to suppress the evidence found in the street and in defendant’s clothing. Appellant contends that the arrest, search and seizure were illegal. The foundation of his complaint is the court’s finding on the first submission of the motion to suppress that the arrest for “improper starting” was invalid because there had been no violation of the ordinance on which that violation was allegedly based. The appellant’s theory is that, if such arrest was illegal, so was the pursuit which preceded it, and that, if the defendant did throw the package into the street, “he was forced to do so * * * because the police indulged in an illegal pursuit and arrest of the defendant.”

Appellant cites no authority which supports, even remotely, the ingenious argument which he advances. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, is cited for the well-known proposition that illegally obtained evidence- is excluded in state criminal proceedings by virtue of federal constitutional protections. The facts of Mapp are in no way comparable with this situation.

McNeely v. United States, CCA 8th, 353 F.2d 913, cited by the state, closely resembles the situation here presented. In McNeely, a policeman saw a suspicious looking automobile at night. When the driver did not stop at the officer’s order, the police car gave chase. During the pursuit, a kit of tools was jettisoned by a person sitting on the passenger side in the front seat. Eventually the vehicle was stopped and the occupants placed under arrest for littering. A short time later the jettisoned tools were found to be adapted for use in burglary and the defendants were arrested for possession of burglary tools. Subsequent investigation showed that the tools had been used in a post office burglary and the occupants of the auto were tried for that offense. McNeely, the driver, argued that only his passenger could have been guilty of littering and that therefore McNeely’s arrest was illegal and the burglary tools could not be introduced in evidence against him. The court concluded that there would have been reasonable grounds for inclusion of McNeely in the littering arrest. However, the court also stated:

“Due to this additional discovery [of the jettisoned tools], we do not believe that the first arrest of McNeely a few minutes before, regardless of its legality, had any effect on the legality of this second arrest. The search and seizure of which McNeely complains did not take place until after this second, obviously valid, arrest on the charge of possession of burglary tools.” (emphasis supplied) 353 F.2d 918 [12].

We are of the opinion that appellant’s arrest here for the marijuana stood on a sound basis, without regard for the validity of the “improper starting” arrest. As one of the officers went to appellant’s auto and advised him of his arrest on that charge, the other went back and found the package in the street which he recognized as containing marijuana. He immediately returned to the presence of the appellant and told him that he would also be booked on the marijuana charge. Although there is no testimony that the officer stated explicitly that he placed the appellant under arrest on the marijuana charge, the statement testified to was sufficient to advise appellant of that fact. See Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976, 979 [5].

The alleged “illegal pursuit” would not taint the discovery of the packet in the street. At the time that he threw away the package, the appellant would not have had any knowledge of the reason for the police signalling him to a stop. What he did is reaction to the police order and his reason therefor was wholly within the control and knowledge of the appellant. Tossing the package into the street was the product of the appellant’s knowledge of matters with which the police were not then concerned. He cannot avoid responsibility on the grounds that it was the police who were at fault.

Appellant also argues that the arrest was based in part upon the marijuana found in the defendant’s car and which the trial court suppressed. He contends that it is impossible to determine whether the arrest for marijuana possession was based solely upon the packet found in the street. However, the only evidence in the record is that defendant was placed under the second arrest after the police officer examined the contents of the packet found in the street. There is nothing to support the contention that such arrest followed a search of the defendant’s automobile. The fact that the trial court suppressed the evidence obtained from the automobile does not, standing alone, show that the arrest was based upon such evidence as well as the packet in the street. The trial court’s ruling was based solely upon his conclusion that the arrest for “improper starting” was illegal. There was no evidence before him of the time at which the auto was searched and he did not consider whether there had been a second arrest which might have afforded a proper basis for such search. We, therefore, do not consider that his ruling had any binding effect insofar as the validity of a second arrest is concerned.

The arrest having been legal, the seizure of appellant’s clothing in connection therewith and its subsequent microscopic examination by the police laboratory personnel and the introduction into evidence of material thereby obtained was not prohibited. State v. Wragg, Mo.Sup., 395 S.W.2d 196, 198-199 [1-3]; State v. Menard, Mo.Sup., 331 S.W.2d 521, 525 [8, 9], See Margeson v. United States, CA 1, 361 F.2d 327, cert. den. 385 U.S. 830, 87 S.Ct. 68, 17 L.Ed.2d 66.

The second point on this appeal urges that there was no evidence to support the verdict finding appellant guilty of the possession of a narcotic drug. The charge against the appellant was based upon § 195.-020, RSMo 1959, V.A.M.S., making unlawful the possession of “any narcotic drug.” (§ 564.090, RSMo 1949, to which the state’s brief refers, was repealed, Laws of Mo., 1953, p. 418, § 1.) The information charged the possession of “a narcotic drug, to-wit: 2.59 grams of the plant Cannabis Sativa, commonly called marijuana.” The police chemist identified the material in the packet as “Cannabis Sativa, known as marijuana.”

Instruction No. 1 called for the jury to find the defendant guilty if they found that he had “in his possession and under his control a certain quantity of a narcotic drug, to-wit: 2.59 grams of the plant Cannabis Sativa, commonly called marijuana, and if you further find that said drug was a narcotic drug, * * Appellant’s contention is that there was no evidence presented to the jury that Cannabis Sativa is a narcotic drug, and therefore there was no evidence upon which the jury could base a finding on that issue.

We find no direct testimony to the effect that Cannabis Sativa is a narcotic drug. However, subparagraph (17) of § 195.010, RSMo 1959, V.A.M.S., defines “narcotic drugs” to mean, among other things, “cannabis.” Subparagraph (5) of that section states: “ ‘Cannabis’ includes all part of the plant Cannabis Sativa L. whether growing or not;” etc. Appellant states that these definitions do not aid the state because there is no evidence that the material here in evidence was part of the plant “Cannabis Sativa L.”, the only evidence being that it was from the plant “Cannabis Sativa.” However, there is no doubt that “Cannabis Sativa L.” and “Cannabis Sativa” are one and the same. The addition of the abbreviation “L.” in § 195.-010(5) merely serves, for purpose of botan-nical classification, to identify the source of the recognized botannical name as the Swedish taxonomist, Carl von Linné, Vol. 22, The Encyclopedia Americana (1957 ed.), Plants and Plant Science, p. 154, § 11. Nomenclature, pp. 219-220. See 12 C.J.S. “Cannabis” p. 1111; State v. Romero, 74 N.M. 642, 397 P.2d 26. The law has included Cannabis Sativa as a narcotic drug. § 195.010(5) (17), supra. The requirement that the jury find it to be such is surplusage, in view of the statutory provisions above noted. See Massiate v. State, Tex.Cr.App., 365 S.W.2d 802, 803 [4]; State v. Weber, 221 La. 1093, 61 So.2d 883, 884 [2].

Appellant’s next assignment of error relates to the closing argument of the prosecuting attorney. Appellant contends that the prosecutor was permitted to comment upon the failure of the defendant to testify. The entire argument is not in the transcript. However, the three references upon which the objection here is based are set out as follows:

(Prosecutor) “I don’t understand the defense in this case; nowhere did Mr. Rankin explain how marijuana fragments could have gotten in his client’s pants or shirt, if in fact the object recovered by the officers was marijuana.”

The transcript shows that this argument was objected to on the grounds that it was “beyond the scope of the charge.” No objection on the ground now urged was made and we do not consider the new ground raised for the first time on appeal.

The other two statements, to which objection was made on the ground here urged, were as follows:

“At the close of the State’s case the defendant had an opportunity to introduce any evidence he had, at that time he had the right—” (objection).

With the exception of the fact that the prosecutor then was allowed to complete his statement, the argument here is practically identical with that found not objectionable on the grounds here urged in State v. Hodge, Mo.Sup., 399 S.W.2d 65, 67-68 [5], The objection here is without merit.

The third portion of the argument which is the subject of claim of error in the statement by the prosecutor: “At that time, when we closed, there was no evidence at all to refute that evidence that the State had put on. We had two officers identify the evidence that the lab had. That’s the State’s case, and against that you have got nothing; absolutely nothing. And I say—” (objection). Argument to the effect that the state’s evidence was un-contradicted, the essence of this argument, is not subject to the objection here raised. State v. Hayzlett, Mo.Sup., 265 S.W.2d 321, 324 [5, 6]; State v. Thomas, Mo.Sup., 393 S.W.2d 533, 537-538 [12]; State v. Kennedy, Mo.Sup., 396 S.W.2d 595, 598-599 [4, 5],

The appellant suggests that the three statements above in their “cumulative effect”, (State v. Varner, Mo.Sup., 329 S.W.2d 623, 633 [18]) violated the appellant’s constitutionally protected privilege to remain silent. We do not agree with this contention. The context of the first statement is incomplete and we would not relate it to the subsequent remarks. The last two statements apparently followed each other in the prosecutor’s argument, with a fairly lengthy interruption in which defendant’s counsel expressed his obj ections to the first portion. Possibly as a result of the objection, the prosecutor then somewhat tempered his remarks in the concluding portion (see State v. Hodge, supra). We find no such cumulative effect here as would call for application of the rule set out in Varner, supra.

The last two objections on this appeal relate to Instruction No. 3 and to the admission into evidence of the container in which the police department had placed the packet of marijuana and the defendant’s clothing. These matters were not preserved in the motion for new trial and therefore are not here available to appellant. S.Ct. Rule 27.20(a), V.A.M.R.; State v. Madden, Mo.Sup., 394 S.W.2d 317, 320 [2, 3]; State v. Meiers, Mo.Sup., 412 S.W.2d 478, 481 [6,7].

Matters of record examined pursuant to S.Ct. Rule 28.02, V.A.M.R., are free from error.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court. All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Raymond KEENEY, Jr., Appellant.
    No. 53117.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Don B. Sommers, St. Louis, for defendant-appellant.
   HIGGINS, Commissioner.

Appellant, charged by information with robbery in the first degree, was convicted by a jury which assessed his punishment at 5-years’ imprisonment in the penitentiary. Sentence and judgment were rendered accordingly.

John Mavrakos, president of the Mav-rakos Candy Company, testified that on January 3, 1967, his company operated a store at 524 North Grand (Grand and Washington), St. Louis, Missouri.

Beatrice Miller was employed by Mav-rakos at the 524 North Grand Avenue store on January 3, 1967. Her hours were 2:30 p. m. to 9:00 p. m., and she was alone from 6:30 p. m. to 9:00 p. m. At approximately 6:35 p. m., “this fellow” came in and asked for broken milk chocolate. After some conversation about the amount desired, “He turned around and said no, he didn’t want that. He just wanted all that was in the register. * * * He had his hand in his pocket and pushed it up on the counter when he asked for the money.” She did not know what he had in his pocket hut thought it was a gun. He also said, “We have your boss down on the corner” which she knew to be untrue. In response to the gestures and command of the man, Mrs. Miller gave him the money from the cash register. She recalled the amount as “a five-dollar bill and singles (10 to 15) and quarters * * * all I could pick up in my hand.” The man then left by the Washington Avenue door, after which Mrs. Miller called the police and gave them a description of her assailant as “a white man about 25, five foot six, 145 pounds. * * * He went east on Washington * * *. He was a little dark, had green khaki trousers. * * * A gray hat, he had on a plaid jacket. * * * His skin was rough, like pock marked, and he had brown hair.” She identified Exhibits 1, 2, 3, and 4 as the trousers, plaid shirt, coat, and hat worn by her assailant. These items were further identified by arresting officers as clothes worn by and taken from appellant upon his arrest.

Shortly after Mrs. Miller’s call to the police, “it couldn’t have been over 15 minutes,” two officers brought appellant into the store and Mrs. Miller identified him as the holdup man. Subsequently, around 9:15 p. m., at the police station, she identified appellant as the holdup man and she also identified appellant as the holdup man at trial. A television camera was brought to the store but Mrs. Miller thought it was after the officers took appellant away.

Cross-examination showed that Mrs. Miller had been held up on three previous occasions and, in answer to whether she was put “in fear at all,” she stated, “Well, it isn’t a wonderful feeling. Q I appreciate that, but did you really think he had a gun in his pocket? A I really thought he did. Yes, sir.”

Mrs. Miller was cross-examined also on her ability to give a description of her assailant to the police following the robbery.

“Q Now, were you in any way, Mrs. Miller, * * * upset at all or shaken up, that might in any way affect your description of this man? A No, sir. No, sir. Q You weren’t at all upset by this experience? A That happens so fast you don’t have time to get afraid, sir. Q Well, I don’t mean at the time. I mean after it had a chance to sink in on you and you knew what happened. Weren’t you a little upset and agitated? A I was upset, yes, but not that much. Q And, could that in any way have affected your description of this man? A No, sir. * * * I would never forget his face.”

Detective William Franklin and his partner, Officer Alexander Boone, at approximately 6:30 p. m., January 3, 1967, received a “robbery 900” radio broadcast from their dispatcher which was the dispatcher’s description of a holdup. The description given was that of a “white male, approximately 25, 30 years of age, about five foot six or seven, wearing olive green trousers, dirty plaid car coat with a plaid shirt * * and a dark hat.” The officers were then entering the intersection of Channing, Lin-dell, Locust, Olive Streets, and “we observed a white male looking up and down the street and walking east on Locust Avenue from Channing. * * * he was looking back up toward Grand Avenue and then he would look in the other direction. * * * As we approached him, we observed him take his hat off and put it in his inside part of his coat.” They then arrested that man, the appellant. He was identified in court as the man arrested, as were Exhibits 1, 2, 3, and 4 as being the clothes worn by appellant when arrested. Théy also searched appellant. “In his trouser pocket we found a number of quarters, a five dollar bill and some ones and some other change. * * * 26 quarters, one five dollar bill, 11 one dollar bills, two dimes, and two one-cent pieces ($22.72).” Appellant was not armed. The arrest was made at “approximately 3422 Locust * * two and a half blocks — something like that” from 524 North Grand Avenue. “ * * * we immediately took him up to the store and we entered the store. The clerk who was there was talking to officers, and — relative to the case, and I think we were about maybe a couple of feet or so in the door, and she looked up and she said, ‘That’s the man.’ ” She pointed to the defendant without hesitation. Detective Franklin saw no television cameras in the store.

Detective Boone’s testimony corroborated that of Detective Franklin. In particular, he described the identification following the arrest. “After he was advised of his rights by my partner, we placed handcuffs on him and proceeded to the scene of the robbery with him. * * * Entered the Mavrakos Candy Store, at which time the clerk who had been held up — she was talking to some more police officers, and we walked inside the door with Mr. Keeney. She stopped in her conversation and stated, ‘That’s the man there,’ sir.” She volunteered the identification.

Elsie Koerber, manager of the Mavrakos Store, testified that on January 4, 1967, following the robbery, she established, through comparison of register tape figures, a shortage of “twenty-one dollars and thirty-five cents.”

Appellant testified in his own behalf. He admitted that in his 34 years he had been previously convicted of a larceny in connection with bad checks in 1953, again in 1959, and again in 1966 on a charge of burglary involving checks. All three convictions were on guilty pleas and resulted in one 5-year probation and serving terms of one year at the Illinois State Penitentiary and six months in jail. He admitted wearing Exhibits 1, 2, 3, and 4 at the time of his arrest by Officers Franklin and Boone. He also admitted being in the vicinity of Grand and Washington but denied the holdup of Mrs. Miller and the Mavrakos Store. He claimed the money in his pocket as his own and as $20 paid him by one Frank Crockett on a debt. His version of Mrs. Miller’s identification was that she was asked by the officers, “ ‘We’ve got this man. Is this the man that robbed you?’ And, she said, ‘Yes it is.’ ” He also stated “there were an awful lot of police officers and a couple of men with cameras. * * * I believe they were television.” He stated Mrs. Miller was 25 to 30 feet from him when making her identification. He stated that upon his arrest he was told he had a right to remain silent but denied he was given any advice on his right to be supplied a lawyer. Officer Franklin, called in rebuttal, said that he advised appellant that he could remain silent; that anything he said would be held against him; that he was entitled to a lawyer, and that “a lawyer would be provided for him, provided he couldn’t afford to get one.” This advice was given him prior to taking appellant to the store. Appellant gave no statement or confession.

The case was submitted under an instruction authorizing conviction of robbery in first degree if the jury found that defendant robbed Beatrice Miller of money belonging to Mavrakos Candy Company “by then and there putting the said Beatrice Miller in fear of an immediate injury to her person.”

Appellant’s Points I and II go to the sufficiency of the evidence. By them he contends his motions for acquittal should have been sustained on the theory there was not sufficient evidence to show a robbery by placing the victim in fear of immediate injury to her person, and that if there was any taking of money from Beatrice Miller “there was affirmative evidence that * * * the victim was not put in fear of immediate injury to her person” and therefore the court erred in failing to instruct on the lesser offense of stealing. State v. Adams, Mo., 406 S.W.2d 608, 611 [6]; State v. Herron, Mo., 349 S.W.2d 936, 940 [5]; State v. Whitley, 326 Mo. 226, 36 S.W.2d 937, 938 [4].

“ * * * ‘Fear need not be shown expressly.’ State v. Thompson, Mo.Sup., 299 S.W.2d 468, 474. ‘A presumption of fear will arise from evidence showing reasonable grounds therefor * * *.’ 77 C.J.S. Robbery, § 45(b), p. 487.” State v. Ray, Mo., 354 S.W.2d 840, 843 [7].

The evidence is sufficient to warrant the jury in finding that appellant, a man 34 years of age, five and a half feet tall, weighing 145 pounds, entered the Mav-rakos Candy Store with his hand in his coat pocket; that he pushed or directed his pocket upward toward and onto the counter tended by Mrs. Miller, who was then alone in the shop, and demanded that she give him the money in the cash register. She described her emotion at this time, “it isn’t a wonderful feeling,” and she really thought appellant had a gun. These circumstances reasonably permit an inference of fear of immediate injury in Mrs. Miller pursuant to which she gave money from the register to appellant. Even if her testimony on cross-examination that she was not so agitated after the holdup that she could not accurately describe her assailant be considered in any way, as argued by appellant, a denial of fear at the holdup itself, her whole testimony does not force a construction that she was shown to be completely or affirmatively without fear when she was robbed. That she complied with her assailant’s demand is indicative of her fear of consequences which reasonably could result from failure to accede to the demand, and there is no evidence suggesting that she would have handed over her employer’s money had she not been motivated by fear. State v. Ray, supra.

Appellant argues that State v. Ray, supra, and State v. Thompson, Mo., 299 S.W.2d 468, are not authority supporting a finding of fear in this case because they involved guns and audible threats of violence. Those cases did involve guns, but the principles cited from those cases are applicable here; and, contrary to appellant’s assertion, Missouri has held that robbery in first degree “might be accomplished without an assault by putting him (victim) in fear of personal injury when there was no actual possibility of it, as where the robber flourishes a harmless imitation pistol or falsely pretends to be pointing a pistol supposedly concealed in his pocket.” State v. Medley, 353 Mo. 925, 185 S.W.2d 633, 634 [1,2]; State v. Scarlett, Mo., 291 S.W.2d 138, 141 [6]. See also Cooper v. State, 201 Tenn. 149, 297 S.W.2d 75, 61 A.L.R.2d 993, 995 [2], and Anno. 61 A.L.R.2d 999.

Appellant urges that the confusion in the testimony of Elsie Koerber destroys the proof of a robbery of any money. Mrs. Koerber did show some confusion in her cross-examination but she stated the loss to be $21.35. In this, she was corroborated by the testimony of Mrs. Miller that a five-dollar bill, some “singles,” and a handful of quarters were taken by appellant, and by the officers’ testimony that when arrested appellant had $22.72 in his pocket consisting of a five-dollar bill, eleven ones, 26 quarters, two dimes, and two pennies.

Since the proof was sufficient in these questioned respects and in all others under the statute on robbery in first degree, it was not necessary to instruct on any lesser offense. State v. Thompson, supra, 299 S.W.2d 1. c. 474 [14-16].

Appellant claims in Point IV that his failure to have counsel before and during pretrial confrontation by an identification witness (Mrs. Miller) rendered her testimony inadmissible and it was error, therefore, not to exclude her testimony at trial. This contention of right to counsel at pretrial confrontations as a matter of law is urged under United States v. Wade, June 12, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and the point is denied without discussion because Stovall v. Denno (June 12, 1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, held that the ruling on this point in United States v. Wade was not retroactive. State v. Blevins, Mo., December 11, 1967, 425 S.W.2d 155. John Raymond Keeney, Jr., was tried March 22 and 23, 1967.

Appellant’s Point III is also a claimed denial of due process by denial of right to counsel before and during pretrial confrontation by a witness. The argument is that the pretrial confrontation with the prosecuting witness (Mrs. Miller), “especially at the scene of the crime, created an opportunity for unnecessary suggestion and * * * invited an irreparable mistaken identification” and that the procedure followed by the arresting officers was “unnecessary and unfair.”

This contention raises the question whether appellant “although not entitled to the application of (United States v. Wade, supra), is entitled to relief on his claim that in any event the confrontation * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (CA 4th Cir 1966).” Stoval v. Denno, supra, 388 U.S. 1. c. 301, 87 S.Ct. 1. c. 1972, 18 L.Ed.2d 1. c. 1206 [2]. See also Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

This involves ascertainment of the “totality of circumstances,” and absence of a lineup for purposes of alternative choices for identification is but a single factor in the totality of circumstances. State v. Blevins, supra.

The totality of circumstances surrounding appellant’s pretrial identification by Mrs. Miller shows that appellant was arrested two and a half blocks from the crime scene within minutes of the commission of the crime. Although denied by appellant, the officers stated appellant was advised of his rights, including right to remain silent, right to counsel, and right to have counsel appointed if he were unable to afford a lawyer of his own choosing. He made no demand for a lawyer and was taken immediately to the store where, according to the officers, Mrs. Miller, without any suggestive statement or question, voluntarily stated, “That’s the man” and pointed to appellant. There were no cameramen or other confusing circumstances. The arrest itself was made pursuant to an accurate detailed description of appellant given the police immediately following the robbery by the identifying witness. No implantation or suggestion was necessary to her identification. These circumstances simply are not suggestive of any pre-Wade case denial of due process because the evidence shows the witness had prior opportunity to observe the accused during the act of robbery; there were never any discrepancies between the original description and later identifications; there was never a failure to identify, and the lapse of time between observation, description, arrest, and identification is insignificant. This “totality of circumstances” is not demonstrative of an unfair trial. State v. Blevins, supra.

Matters of record for examination and Criminal Rules 28.02 and 28.08, V.A.M.R., are free of error.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner. STORCKMAN, Judge.

text:
    Richard GOUSETIS and Geraldine Gousetis, Appellants, v. John Anthony BANGE, Respondent.
    No. 52727.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.
    Morris A. “Shenker and Frank B. Green, Jr., St. Louis, for appellants.
    Lloyd E. Eaker, Clayton, for respondent.
   HIGGINS, Commissioner.

Action for $25,000 damages for wrongful death. Plaintiffs appeal from verdict and judgment for defendant.

Richard Michael (Rickey) Gousetis, plaintiffs’ 8-year-old son, died as a result' of a collision between his bicycle and an automobile owned and operated by defendant. The casualty occurred at approximately 6:00 p. m., July 10, 1964, at the intersection of Lindbergh Walk and Lindbergh Drive in the 7600 block of Lindbergh Drive in Richmond Heights, Missouri. Rickey rode his bicycle north on Lindbergh Walk and, after entering the eastbound-traveled portion of that street, was struck by the right front of defendant’s eastbound automobile.

Appellants seek a new trial contending reversible error in giving Instruction No. 3 and, in addition to an attempted defense of Instruction 3, respondent contends that error, if any, in the instruction is harmless because he should have had a directed verdict at the close of all the evidence in that plaintiffs failed to show any negligence of defendant was the proximate cause of plaintiffs’ injury and plaintiffs’ son was guilty of contributory negligence as a matter of law.

Lindbergh Drive is a generally east and west street in a residential neighborhood. It consists of two eastbound traffic lanes with a total width of 20 feet curb to curb and two westbound lanes, also of 20 feet total width. The east and west lanes are separated by a 50-foot parkway. The eastbound portion of the street is straight and fairly level in the vicinity of the casualty. Lindbergh Walk is a concrete walkway running generally north and south connecting four other east-west streets. It is for public pedestrian travel and intersects and crosses Lindbergh Drive at a point about midway of the 7600 block. There was no stop sign at the crossing. The part of the walk involved runs south to north between Hiawatha and Lindbergh Drive and lies between a house on the east side of the Walk at 7616 Lindbergh Drive and one on the west side at 7628 Lindbergh Drive. 7628 Lindbergh Drive was occupied by a Graham family whose son Paul was a playmate of plaintiffs’ deceased son. The walkway had a regular street name, “Lindbergh Walk,” on a standard located at the south curb of the street. A white picket fence paralleled the east side of the Walk. It was 24 inches high at its north or street end near the sidewalk and 26 inches high at the end nearest the house at 7616 Lindbergh Drive. There were some shrubs along the west side of the Walk between the sidewalk and the Graham house at 7628 Lindbergh Drive. As one came north on Lindbergh Walk to Lindbergh Drive the grade was downhill.

The building line for homes fronting the south side of Lindbergh Drive was fairly uniform at 40 to 46 feet south of the south curb of the street. The Graham home was set back 40 feet from the south curb and the garage attached to the east side of the house was set back 46 feet. The surface of the driveway to Graham’s garage was higher than Lindbergh Walk which it paralleled. The maximum difference of 26 inches occurred near the building line.

The weather was clear and the sun was shining at the time of the casualty. Defendant, aged 18, was driving his 1953 Chevrolet east on Lindbergh Drive with a friend, Robert Stewart, a front-seat passenger. As he approached Lindbergh Walk, defendant was driving in the eastbound lane nearest the parkway at a speed of 20 to 25 miles per hour.

Rickey was four feet, five inches tall and was coasting northward and downgrade on Lindbergh Walk toward Lindbergh Drive on his sister’s 26-inch, 2-wheel bicycle. William E. Trampier and his son Craig were at this time riding bicycles westwardly in the westbound lanes of Lindbergh Drive approaching the crossing of Lindbergh Walk. Rickey became visible to them as he cleared the front building line of the two houses adjacent to the Walk. His head was “down” as he coasted toward the street.

Defendant first noticed Rickey when his automobile reached a point in the street “about even with the walkway.” At that time Rickey’s speed was about nine miles per hour and he was a foot north of the south curb of the street. Immediately the front of the right headlight and hood struck the front wheel of the bicycle. The impact threw the boy about IS feet ahead and ■clear of the car. Defendant applied his brakes immediately on impact and brought his automobile to a stop within 15 feet without running over the boy’s body.

Defendant had lived all his life at 7659 Lindbergh Drive, four houses west of the Walk and on the westbound side of the •stheet. He was aware of the likelihood of children in the area and recalled riding his bicycle on the Walk as a child. He did not look toward the building line for children on the Walk on this occasion. He could not say why he did not see Rickey until he was just north of the south curb. He and Robert Stewart returned to the scene the following day and examined it because he could not imagine how Rickey could have gotten out into the street so suddenly without his seeing him. His vision was not obscured by any parked cars at the south curb.

Plaintiffs’ evidence on the effect on visibility of the shrubbery on the west side of Lindbergh Walk consisted of photographs which Mrs. Gousetis testified accurately depicted the condition of the shrubs on the day of the casualty. Defendant had testimony unsupported by photographs to the effect that the shrubbery was taller, denser, and more continuous than the condition depicted by the photographs. They were evidence that the shrubbery shown by the pictures would not obscure persons using the Walk from the vision of an eastbound motorist.

Also in evidence were photographs taken from 50 and 85 feet west of the Walk showing an eastbound motorists’ opportunity to see the Walk and street when looking to the east and southeast. These, too, were evidence that persons using the Walk would not be obscured to a motorist at those distances by either the shrubbery or the elevation difference between the Walk and the driveway and terraces to the west.

This evidence is sufficient for the jury to say whether defendant, by keeping a proper lookout, could have seen plaintiffs’ decedent in time to have avoided the collision. Support for this conclusion may be found in many cases but because of its many similarities, see Hildreth v. Key, Mo.App., 341 S.W.2d 601, 605-608[3-14].

In support of his contention that plaintiffs failed to show any negligence of defendant to be the proximate cause of their injury, respondent cites Zalle v. Underwood, Mo., 372 S.W.2d 98, 102[3] : “Negligent failure * * * to keep a proper lookout cannot be established in the absence of substantial evidence from which a jury could find that in the exercise of the highest degree of care he could have seen (decedent) * * * in time thereafter to have taken effective precautionary action”; Harris v. Lane, Mo.App., 379 S.W.2d 635, 639[9]: “Absent evidence as to when and where defendant could have seen plaintiff, and where his automobile was at the time, the charge that defendant failed to keep a proper lookout rests on nothing more than surmise and conjecture”; and Williams v. Boone, Mo.App., 413 S.W.2d 36, 40[3]: “* * * it is error to submit a case based upon alleged failure to keep a lookout unless there is evidence from which the jury could find that in the exercise of the required degree of care the party so charged could have seen the person or object before he did see it.”

Respondent’s argument is that his view of the walkway was obstructed by terraces, parked cars, and shrubbery, preventing him from seeing decedent until he came out into the street; that there was no evidence of the bicycle’s speed; that there was no evidence to show where his car was when he could first have seen the bicycle, or that he could have seen the boy sooner than he did.

There was evidence depicting and describing the terraces and shrubbery in relation to the Walk from which the jury could find that a motorist in defendant’s situation could have seen persons or objects of decedent’s height in the 46 feet of Lindbergh Walk running northward from the building line of the Graham house to the street for as much as 85 feet of his approach on Lindbergh Drive to its intersection with the Walk. Defendant himself stated that his vision was not blocked by any parked cars. The 9-miles-per-hour speed of the bicycle was defendant’s own estimate, and there was abundant evidence upon which a jury could find that the boy could have been seen sooner by defendant if he had but looked in the direction from which decedent came. In further answer to respondent’s argument and in satisfaction of the rules of his citations, the evidence, and particularly that of defendant’s stopping within 15 feet after he did see decedent, was sufficient to permit a jury to find that defendant could have taken effective avoiding action if he had but fulfilled his duty to look in such an observant manner as to enable him to see and discover such conditions as one in the exercise of the highest degree of care for the safety of himself and others would be expected to see under like or similar circumstances. Riley v. Young, Mo.App., 218 S.W.2d 805, 808[1]; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 937-938[2-6].

Respondent’s continued emphasis that shrubs and terraces prevented a clear view of the decedent is answered in that “ ‘Negligence is ordinarily a question for the jury. It is always so when the evidence on material points is conflicting, or where, the facts being undisputed, different minds might reasonably draw different conclusions from them.’” Fortner v. St. Louis Public Service Co., Mo., 244 S.W.2d 10, 13[1].

Respondent’s argument that plaintiffs’ decedent was guilty of contributory negligence as a matter of law is that the boy “had his head down” and that such is a conclusive showing that the boy failed in his own duty to keep a lookout.

Rickey did have a duty to keep a lookout but he was not required to look constantly to one side, nor did he need to keep turning his head from side to side, Combellick v. Rooks, Mo., 401 S.W.2d 460, 463[4], The only evidence on the issue was the testimony of Mr. Trampier that Rickey had his head “down” when he saw him, and different minds might reasonably draw different conclusions from that fact, thus giving rise to a jury question on the matter. Fortner v. St. Louis Public Service Co., supra.

Instruction No. 2 directed a verdict for plaintiffs if the jury found “defendant failed to keep a careful lookout and * * * was thereby negligent.” MAI 20.01 and 17.05. Defendant’s affirmative defense of contributory negligence of plaintiffs’ son was submitted by Instruction No. 3 purporting to be MAI 28.01:

“Your finding under Instruction No. 2 must be for the defendant whether or not defendant was negligent if you believe:

“First, plaintiffs’ son Rickey Gousetis failed to keep a careful lookout, and

“Second, their son’s conduct was negligence, and

“Third, such negligence of plaintiffs’ son directly caused or directly contributed to cause any damage plaintiffs may have sustained.”

Appellants argue the giving of Instruction No. 3 was reversible error because it did not follow MAI for submission of a single act of negligence a,s contributory negligence in that paragraph Second did not contain any language to refer and restrict the jury’s consideration of the general hypothesis, “their son’s conduct was negligence,” to the specific hypothesis in paragraph First that the son “failed to keep a careful lookout,” and that the omission of such reference and restriction gave the jury a roving commission to speculate and base a verdict on whatever conduct the jury felt would constitute negligence on decedent’s part.

Under Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255, 259[3], “* * * where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” Instruction 3 contains a deviation. It fails to follow MAI 17.01 and 28.01 for submission of contributory negligence predicated upon a single negligent act and the deviation results in a situation in which the negligence mentioned in paragraph Second is not referred to the negligence in paragraph First, and the jury was thus not restricted to determining whether decedent’s conduct was negligent on the single charge of failure to keep a lookout but was given a roving commission. In contrast to Instruction 3 as given, paragraph Second of the submission should have followed MAI 28.01 to read: “Second, plaintiffs’ son’s conduct, in the respect submitted in paragraph First, was negligent, and * * *.”

Even prior to Missouri Approved Instructions, instructions of this nature which submitted specific acts of negligence together with language submitting general negligence and which failed to limit the jury’s determination to specific acts of negligence were prejudicially erroneous and grounds for reversal. Endermuehle v. Smith, Mo., 372 S.W.2d 464; Heimos v. Bruce, Mo., 393 S.W.2d 477. For a similar ruling under MAI, see Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622.

Respondent, as the proponent of Instruction 3, attempts to meet his “burden of establishing nonprejudice,” Murphy v. Land, Mo., 420 S.W.2d 505, 507[6], citing Hustad v. Cooney, Mo., 308 S.W.2d 647, and Johnson v. West, Mo., 416 S.W.2d 162, both of which are distinguishable. In Hustad v. Cooney, supra, the contributory negligence instruction did not present a roving commission to the jury because it referred and restricted the jury specifically to the negligence “in any manner, as submitted and defined in other instructions herein, and that such negligence was a contributing cause (etc.) * * 308 S.W.2d 1. c. 650[3]. Johnson v. West, supra, is not in point because it did not deal with failure to have adequate reference and restriction between paragraphs First and Second of an instruction under MAI 17.02. It held only that failure to include “either” before “or” in submitting alternative charges of specific negligence, and use of “on” for “in” any of the submitted respects, did not make the instruction preju-dicially erroneous because the instruction retained its sense and was “substantially correct in form and substance.” 416 S.W.2d l. c. 164[1,2].

For error in giving Instruction 3, plaintiffs are entitled to a new trial.

Judgment reversed and cause remanded.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM.

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

HENLEY, P. J., and SEILER, J., concur.

STORCKMAN, J., concurs in separate concurring opinion filed.

Concurring Opinion

STORCKMAN, Judge.

In a similar situation I concurred in result only because: “S.Ct. Rule 70.01(c) says the prejudicial effect of an error arising out of a departure from an approved instruction will ‘be judicially determined’, while the opinion states that ‘prejudicial error will be presumed’ unless it is made perfectly clear that no prejudice could have resulted.” Brown v. St. Louis Public Service Company, Mo., 421 S.W.2d 255, at page 260. My views as stated in Brown have not changed. Furthermore, we are admonished by other decisions of this court and by S.Ct. Rule 83.13(b) that: “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.”

Nevertheless, the law now is as declared by this court en banc in Brown v. St. Louis and by it I am bound. Having reiterated my view, I will now and henceforth concur without further ado.


text:
    STATE ex rel. 807, INCORPORATED, a Corporation, Appellant, v. Milton SAITZ (now Harry Wiggins, Newly Appointed), Supervisor of Liquor Control, State of Missouri, Respondent.
    No. 53342.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Sam Goldman, Clayton, for appellant.
    Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.
   HIGGINS, Commissioner.

Appeal from judgment affirming revocation of liquor license by Acting Supervisor of Liquor Control, a state officer. Pinzino v. Supervisor of Liquor Control, Mo., 334 S.W.2d 20, 22[1].

On June 9, 1966, the Supervisor of Liquor Control of Missouri notified appellant through its registered agent, in writing, of a hearing on June 28, 1966, for consideration of revocation or suspension of its 5%-beer-by-the-drink license on these, among other charges, that on May 28, 1966, appellant did unlawfully:

“1. * * * fail and refuse to and did not at all times keep an orderly house or place, in that * * * (it) did employ or allow prostitutes to loiter upon the licensed premises * * * contrary to Section 311.680, R.S. Missouri, 1959 [V.A.M.S.].

“2. * ‡ * violate Regulation 14, subsection (a) of the Rules and Regulations of the Supervisor of Liquor Control, I960, * * *:

‘“(a) * * * No holder of a license to sell intoxicating liquor by the drink, shall sell or give any intoxicating liquor * * * to any female who shall solicit another to buy said intoxicating liquor * * *, nor shall he permit any such female person to solicit the purchase of intoxicating liquor * * * by another on the premises of said licensee.

“3. * * * violate Regulation 14, subsection (b) of the Rules and Regulations * * *:

“ ‘(b) No retail licensee shall allow in or upon his licensed premises any improper disturbances, lewdness, immoral activities * * *.

“4. * * * violate Regulation 15, subsection (k) of the Rules and Regulations * * *:

“‘(k) No licensee shall employ or allow the loitering upon or about the licensed premises of any * * * prostitute * * *.”

Appellant appeared at the hearing by its registered agent and managing officer, Daniel Averbuch, who, on behalf of appellant, denied the charges.

Robert Fodde, agent of the Department of Liquor Control, was working with Agent Bernard Brown on May 28, 1966. They went to appellant’s tavern at 4054 Olive, St. Louis, Missouri, about 4:55 p. m., seated themselves at the bar, and purchased drinks from the bartender. There were three women and two other men in the tavern. Agent Fodde asked the bartender about the women and he said, “Oh, they’re prostitutes.” Two of the women approached the agents and one asked “us to buy them each a drink.” The bartender was about two or three feet from this solicitation. Agent Fodde asked the bartender to give the girls a drink and the bartender served the drinks. After the drinks were served, one of the women solicited the agents for purposes of prostitution. Before leaving, the agents purchased another round of drinks and left two one-dollar bills on the bar for the girls at their request. They wanted to do some more drinking until the agents returned.

Agent Bernard Brown corroborated Agent Fodde. He described their seats as being in the center of a U-shaped bar. Their drinks were beer. The girls who approached the agents seated themselves one by each agent. The bartender was directly opposite them when the girl next to him asked him to buy her a drink. The bartender served the drinks. Agent Brown heard the solicitation for prostitution of Agent Fodde by the girl seated next to Agent Fodde. Agent Brown had previously asked the bartender about the girls when they were playing the jukebox. The bartender told him the girls were “available if the price is right.” The conversation with the girls established the price for the proposed prostitution at $5.00 for each agent.

Richard Jansen of the St. Louis police Department had observed known prostitutes in appellant’s tavern seven or eight times in the six months preceding the agents’ investigation and had so advised the bartender. The neighborhood had a general reputation for prostitution and solicitation and the tavern was known as one frequented by prostitutes. He had made arrests in the tavern with the bartender’s knowledge of known prostitutes.

The supervisor made Findings of Fact:

“ * * * 2. That on May 28, 1966, (appellant) did allow a prostitute * * * to loiter upon or about the licensed premises.

“3. * * * did allow lewdness, immoral activities * * * on the licensed premises in that he allowed the solicitation for prostitution to have occurred.

“4. * * * did permit a female person to solicit the purchase of a drink on his licensed premises and * * * did give drinks to a female who solicited such drinks.”

The supervisor also drew Conclusions of Law:

“1. That Regulation 14(a) of the Rules and Regulations of the Supervisor of Liquor Control provides that the (appellant) shall not give drinks to females who solicit said drinks from others and * * * shall not permit any female person to solicit drinks on the licensed premises.

“2. That Regulation 14(b) of the Rules and Regulations * * * provides that the (appellant) shall not allow lewdness, immoral activities * * * on the licensed premises.

“3. That Regulation 15(k) * * * provides that the (appellant) shall not allow prostitutes * * * to loiter on the licensed premises.

“4. That Regulation 15(a) * * * make (sic) the (appellant) responsible at all times for the conduct of his business and also responsible for the act of any employee * * * in violation of the laws governing the sale of intoxicating liquor * * * in Chapter 311, RSMo.

“5. That Section 311.660, RSMo. 1959, authorizes the Supervisor of Liquor Control to establish Rules and Regulations for the conduct of the business carried on by each specific licensee * * * under Chapter 311, RSMo.

“6. That Section 311.680, RSMo. 1959, authorizes the Supervisor of Liquor Control to suspend or revoke licenses for failure to keep an orderly place.

“7. That Section 311.660, RSMo. 1959, authorizes the Supervisor * * * to revoke or suspend licenses for failure to obey Rules and Regulations.”

Upon the evidence adduced at the hearing and pursuant to his Findings of Fact and Conclusions of Law, the supervisor entered an order finding appellant guilty of the charges against it and revoked its license.

An appeal was taken to the circuit court for review of the supervisor’s decision and a transcript containing the charges, evidence, findings of fact, conclusions of law, and order of revocation was certified and filed there by the supervisor. After consideration of all transcripted items, the circuit court entered its judgment affirming the findings and decision of the supervisor.

On this appeal, as on the appeal in the circuit court, the appellate function is to determine if there is competent substantial evidence on the whole record to support the decision of the Supervisor of Liquor Control and, in cases such as this where the supervisor must hold a hearing, the reviewing court may reverse or modify the decision only if “such decision is not supported by competent substantial evidence on the whole record.” Section 311.700, V.A.M.S.; Crooms v. Ketchum, Mo., 379 S.W.2d 580, 584-585; State ex rel. Favazza v. Ketchum, Mo., 367 S.W.2d 542, 546[2, 3]; Burke v. Coleman, 356 Mo. 594, 202 S.W.2d 809, 811[2, 3].

Appellant’s first point is that the supervisor’s decision was not based on competent substantial evidence. He- contends that “The hearsay statements of the two agents * * * with reference to conversations with the two women and the bartender are not competent to bind the appellant,” and that if a case was to be made on their conduct they had to Jje summoned as witnesses and subjected to cross-examination.

As conceded in appellant’s reply brief, the bartender’s statements were not admitted to show the truth of the assertion, i. e., to prove the two women were prostitutes, but were admitted to show only the knowledge of appellant’s bartender of prostitutes’ activities on the licensed premises. . Where such an “utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; * * *." Mash v. Missouri Pacific Railroad Co., Mo., 341 S.W.2d 822, 827[4]. Nor is the agents’ testimony that the two women approached them for drinks and prostitution hearsay. Such testimony was not for the purpose of proving the truth of the statements, i. e., whether the women would do the proposed acts for the stated sum, but was to show that proscribed activities did occur in appellant’s tavern. As such, the women’s statements simply were observable “verbal acts, which actually are a part of the transaction tinder investigation” and to which the agents, as witnesses, were competent to testify. Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781 [1]; Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958, 962[9].

Further difficulty in appellant’s position is that at the hearing appellant did not invoke any rule against hearsay testimony, and “A rule of evidence not invoked is waived.” Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539[5].

The remainder of appellant’s attack on sufficiency of evidence is that the record should show that the Rules and Regulations of the Supervisor of Liquor Control were filed with the Secretary of State and that the record is incomplete without a “certification from the Secretary of State that such Rules and Regulations were duly filed with him.” The only citations in support of this contention are Section 536.020 RSMo 1959, and Section 22, Article V, Constitution of Missouri, V.A.M.S., neither of which is authority for appellant’s proposition. Section 536.020 simply requires each state agency to file with the secretary of state a certified copy of each rule it adopts; that the secretary of state shall keep a public register of same; and such rules shall become effective ten days after filing. Section 22, Article V, provides only for judicial review of actions of administration agencies and the scope of such review and contains no requirement of a secretary of state’s certificate for the record at an agency hearing.

Appellant in Point II charges that the circuit court review was not based on due process of law. The argument is that appellant was entitled to a de novo hearing in the circuit court with the right to produce new and additional evidence. In support of this contention appellant cites Section 311.710(5) RSMo 1959 which provides: “The complaint shall be heard by the court without a jury and if there has been a prior hearing thereon by the supervisor of liquor control then the case shall be heard de novo and both the complainants and the licensee may produce new and additional evidence material to the issues.” The complaint mentioned in Section 311.710 is one that may be brought in a circuit court by a sheriff or any peace officer or by any eight or more persons who are taxpaying citizens in the county or city of the licensed business on account of several specified offenses. The provision is one for complaints in addition to those authorized to be brought by the supervisor and can serve as a means of enforcing the liquor law where the supervisor may fail or refuse to act. Section 311.710 clearly is not applicable where, as here, the charges are processed to decision by the supervisor under Sections 311.660 and 311.680, V.A.M.S., and review is under Section 311.700, V.A.M.S. Crooms v. Ketchum, supra, 379 S.W.2d l. c. 584—585[1]. Appellant, itself, recognizes this procedure because its petition for review of the supervisor’s decision stated it was filed “as required by Section 311.700, par. 2, of the Revised Statutes of Missouri, 1959.”

Under this point appellant complains that he was denied due process when the circuit court set aside its judgment of February 8, 1967, affirming the supervisor, and thereafter reentered an identical judgment without notice or hearing.

The judgment is the same in both instances, and appellant attempts no demonstration of prejudice on account of the reentry which, by the record, was upon his own motion and for his benefit. The order setting aside the first entered judgment did not set aside the submission of the case; it simply set aside the judgment, and the case was thus restored as previously submitted “to the breast of the court” for disposition. Fletcher v. North British and Mercantile Ins. Co., Mo., 425 S.W.2d 159. There was no additional hearing to be held inasmuch as the only authorized submission was of the transcript previously submitted January 24, 1967, and appellant was enabled to file motion for new trial and, ultimately, this appeal.

Appellant complains that the court’s judgment referred to the “Excise Commissioner of the City of St. Louis” instead of the “Acting Supervisor of Liquor Control of the State of Missouri,” and also questions the nunc pro tunc correction of this feature of the order.

As indicated by the complaint, the judgment did make such erroneous reference. After appeal to this court and upon motion and notice to appellant, the court entered an order correcting its judgment to read “Acting Supervisor of Liquor Control of the State of Missouri” wherever it had read “Excise Commissioner of the City of St. Louis.” This was done on a finding, supported by the transcript, that the “records and files of the Court show that a clerical error was made in that the caption and formal parts of all pleadings, documents and orders refer to and state that the Acting Supervisor of Liquor Control of the State of Missouri was the proper party and not the Excise Commissioner of the City of St. Louis and specifically that the Memorandum for Clerk states the ‘Decision of Acting Supervisor of Liquor Control affirmed.’ ” Appellant’s only argument is that this could not be done after the circuit court lost control of its judgment by expiration of the thirty-day period following its entry.

The nunc pro tunc procedure was proper. “It was the clear duty of the court to make its judgment complete evidence of the determination of all vital issues made by pleadings and tell the truth. * * * The right to amend (the judgment) was not altered by the appeal, for the trial court,' though it had lost jurisdiction of the cause, still retained enough jurisdiction of its record to make it tell the truth.” Kansas City v. Woerishoeffer, 249 Mo. 1, 155 S.W. 779, 784[8, 9]. This correction was justified because necessary corroboration appeared elsewhere in the record. City of St. Louis v. Essex Inv. Co., 356 Mo. 1028, 204 S.W.2d 726, 729[7].

Appellant’s final point is that revocation was an unduly severe decision.

Appellant was charged with and found guilty of allowing prostitutes to loiter on its licensed premises in violation of Section 311.680, V.A.M.S., and of permitting sale of intoxicating liquor to a female soliciting drinks and allowing lewd and immoral activities on licensed premises in violation of Regulations 14 and 15 of the Rules and Regulations of the Supervisor of Liquor Control. Section 311.660(6), V.A.M.S., authorizes such rules and that section and Section 311.680, V.A.M.S., provide the supervisor’s authority to suspend or revoke for violation of Section 311.680 and the rules. The decision to suspend or revoke lies solely with the supervisor and the reviewing court can but affirm or reverse; it cannot modify the supervisor’s decision in this type case. See authorities previously cited.

Appellant’s plea for modification is based on Section 311.710, V.A.M.S., which does make provision for the court to suspend a license where to revoke as ordered by the supervisor would be unduly severe. It already has been demonstrated that this section is not applicable to this case and the reviewing court remains limited, under Section 311.700, V.A.M.S., to affirming the judgment of revocation if supported by competent, substantial evidence, or to reversing or modifying only if the judgment was not so supported or if not authorized by law. See authorities previously cited.

Judgment affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

HENLEY, P. J., SEILER, J., and SHANGLER, Special Judge, concur.

STORCKMAN, J., not sitting.


author: J. P. MORGAN, Special Judge.

text:
    Corrine Anne Staigg NEAGLE, Appellant, v. Theodore HITT, Rita Hitt, Pleasant Hill Legion and War Dads Building Corporation, and City of Pleasant Hill, Missouri, Respondents.
    No. 52225.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 11, 1968.
    Crouch, Crouch, Spangler & Douglas, L. M. Crouch, Jr., and James E. Thompson, Jr., Harrisonville for Theodore Hitt and Rita Hitt.
    Felix V. Gross, Pleasant Hill, for Pleasant Hill Legion and War Dads Building Corp. and City of Pleasant Hill, Mo.
    Linde, Thomson, VanDyke, Firchild & Langworthy, Charles W. Hess and Charles White Hess, Kansas City, for appellant.
   J. P. MORGAN, Special Judge.

Plaintiff failed to prevail in her action to quiet title to certain lots in Pleasant Hill, Missouri, which were originally owned by her great-grandfather, John T. Russell, and she bases her present appeal on the assertion the trial court erred in construing his “will and codicil” which all parties agree was determinative of the title action.

In 1885 when John T. Russell executed his Last Will and Testament his immediate family consisted of his wife and two daughters. For purposes of brevity we will respectfully refer to him as the “testator”; to his daughter, Rosa, who prior to the execution of the will had intermarried with one Ingels and was then Rosa Ingels, as “Rosa”; to the testator’s daughter, Minnie, who during the period between the execution of the will and codicil had married one Brown, as “Minnie”; to the testator’s wife, Fannie Russell, as “Fannie”; to the original will of March 19, 1885, as the “will”; and, to the codicil thereto of June 9, 1903, as “codicil.” Fannie died prior to 1903 and the testator died in the year 1904, leaving as his sole and only heirs his two daughters, Rosa and Minnie. It is agreed Minnie had one child, Frances Staigg, who predeceased Minnie and left as her one and only child, Corrine Anne Staigg Neagle, plaintiff in this action. Upon the death of Minnie on February 9, 1963, plaintiff soon thereafter initiated separate actions to quiet title to different properties which, by stipulation, have been consolidated in this appeal.

Defendants all claim to have derived their interests in the property through various conveyances from Minnie, and they rest such claims on the contention that Minnie by the codicil had been devised a fee simple interest in the lands of interest here. Plaintiff asserts that by the will and codicil Minnie had been devised a life estate only and that she, as the sole and only heir of Minnie, had a vested remainder with a possessory right thereto since the death of Minnie in 1963. Thus, as agreed by the parties and is evident from the facts outlined, the one question is: Did Minnie have a fee simple title or a life estate only in the lands pertinent to this appeal ?

To fairly present and consider the theory of construction advanced by plaintiff, several paragraphs of the original will must be set out. We have italicized those portions she contends substantiate her argument. The paragraph numbers are consistent with the original will, but unnumbered sub-paragraphs will be given a numerical designation for purposes of clarity and reference.

“First. I give, devise and bequeath to my daughter, Rosa Ingels the following described real estate: (Here followed a description of 473%oo acres of land.) to have and to hold the same to my daughter, Rosa Ingels, during her life, for her own use and behoof and after her death to the heirs of her body, and to their heirs and assigns forever.
“Second. I give, devise and bequeath to my daughter Minnie the following described real estate: (Here followed a description of 4175⅛0 acres of land.) To have and to hold to my daughter Minnie during her life, the same for her own use and behoof, and after her death to the heirs of her body and to their heirs and assigns forever.
Third. — 1: “If either of my daughters, my beloved wife, Fannie Russell, excepting those portions devised and bequeathed to my daughters, Rosa and Minnie all my real estate wheresoever situated, which I may own at the time of my death, including not only my lands in the country, but also my lots and houses in Pleasant Hill, Missouri. She shall have the privilege of using the lands in any way she may deem best for her own use and benefit and to sell all or any portion of them at such prices and on such terms as may be approved by my brother, Harvey Russell.
“Third. — 1: “If either of my daughters, Rosa or Minnie should die without issue or living offspring, before my wife’s decease, the real estate which I have in this will bequeathed to her (my daughter) during her life, and after her death to the heirs of her body, shall go to her surviving sister, whichsoever one that may be, to have and to hold the same to her during her life, for her own use and behoof, and after her death to the heirs of her body, and to their heirs and assigns forever.
******
Third. — 2. “There will be no necessity for the appraisement of my property after my death, as I desire my wife to control and use all the property both real and personal, herein bequeathed by me to her as she may deem best for her own use and benefit, during her life, and after her death, if my two daughters, Rosa Ingels and Minnie should survive her, I desire that the property left by my wife shall be divided equally between them.”

Some eighteen years later the testator felt required to add a codicil to this will because of the death of his wife, Fannie.

C — 1: “Whereas since making my Last Will and Testament dated the 19th day of March, 1885, my beloved wife, Fannie Russell has died it becomes necessary that I make a division between my daughters of the property I bequeathed to her and other properties which have come into my possession since the date of the will. It is my wish that the bequests to my daughters as set forth in the Will should stand as written.
C-2: “To make further distribution of my property I accordingly bequeath to my daughter Rosa Ingels and her heirs ail of my tract of land lying west of Pleasant Hill, Missouri, and known as the Thomas Hayes Farm. I also bequeath to my daughter Rosa and which I do not entail, the following. The house and grounds attached thereto where she nows lives, also the house in which a man by the name of Gibson now lives being lots 1-2-6 & 7 in Van Noys Second Addition to Pleasant Hill, Missouri. Also the house and grounds attached, being lots 6 & 7, Block 48 in Millers Addition to Pleasant Hill, Missouri. The house now being occupied by Mr. Lawson. Also lots 13-14 & 15 in Block One (1) in Van Noys Second Addition to Pleasant Hill. Also the brick store building formerly used for Post Office and now used for a bowling alley and being the south half (½) of Lot 4 in Block F of Pacific R.R. addition to Pleasant Hill. Also a tract of land known as the Shaw property containing twenty-two acres more or less and situated between the old and new towns of Pleasant Hill. Also to my daughter Rosa I give $1,000.00 to equalize the division I make of my Pleasant Hill real estate.
C-3: “To my daughter Minnie Brown and her heirs I bequeath the N.E. ¼ of the S.W. 14 °f Section One (1) in Township Forty-Six (46) of Range Thirty-One (31) in Cass County, State of Missouri and containing 40 acres more or less. Also the following lands lying and being in Jackson County, Missouri, to-wit: All of the East half of the Southwest quarter, and the Southeast Quarter of the Northwest Quarter of Section Thirty-One (31) in Township Forty-Seven (47), of Range Thirty (30), containing one-hundred twenty (120) acres more or less. Also to my daughter Minnie I give and bequeath the Hostzles Store building being on Lot 1 and part of Lot 2 in Block 75 in Millers Addition to Pleasant Hill, Missouri. Also the little building, being the south half of Lot 5 in Block F, Pacific Railroad addition to Pleasant Hill, Missouri.”

Further provisions bequeathed some personal property jointly to Rosa and Minnie with a further provision that bank stock be divided equally between them. Two later paragraphs provided:

C-4: “And lastly to my daughter Minnie I give and bequeath the home place where I now live and have lived for many years with all the Lots adjoining and improvements thereon.
C-5: “In case there is any property I possess that has been omitted or forgotten it shall be equally divided between my 2 daughters.”

The lands in dispute are described as indicated by the italicized descriptive portion of paragraph C-3 of the codicil. As shown they were devised to Minnie by the following language: “To my daughter Minnie Brown and her heirs * * * also to my daughter Minnie I give and bequeath. * * *” Unquestionably, this devise created a fee simple absolute title in Minnie,.and it would have been difficult to have suggested to the testator a more certain method of so doing. Section 474.480, V.A.M.S. Further, “ * * * it is to be assumed that the testator knew and understood the meaning and legal effect of the words used.” Shaw v. Wertz, Mo., 369 S.W.2d 215, 218.

In the face of the concise and unambiguous language used to make this devise, and being fully aware of our holding in Hereford v. Unknown Heirs et al., 365 Mo. 1048, 292 S.W.2d 289, wherein it was stated at page 293, “If, from such an examination, the intent is ascertainable, auxiliary rules of construction are not to be resorted to * * *” we will attempt to follow the plaintiff’s theory that the testator did not mean what he said. Her basic premise, with which we agree, is “All technical rules of construction are subservient to the paramount rule that the intention of the testator shall control unless it violates some established rule of law.” Commerce Trust Company v. Weed, Mo., 318 S.W.2d 289, 294. She correctly asserts that paragraphs First and Second devise large tracts of real property to each of the daughters for life with a remainder interest in their heirs; that paragraph Third-2 apparently devised the residue of the realty to Fannie for life only despite her right to sell and dispose of the same during her life, Gent v. Thomas, 363 Mo. 528, 252 S.W.2d 345, and that Fannie was to divide that portion not sold by her between the two daughters; that paragraph Third-1 provided that if either daughter predeceased the mother without issue, her share was to go to the surviving daughter.

We are then encouraged by plaintiff to find the following five inferences which we will consider individually: (1) The placement of paragraph Third-1, providing for the possibility one daughter might predecease the mother without issue, after the devise to the wife, was significant, and the use of the words “ * * * the real estate which I have in this will bequeathed to her (my daughter)” applied not only to paragraphs First and Second but also to that part subject to the mother’s estate in paragraph Third. To the contrary, the terminology used can more logically be found to be a reference to paragraphs First and Second that set out the daughters’ estates for no reference at all was made to the lands either daughter might receive “equally between them” at the time of the death of the mother, Fannie. (2) The plaintiff having drawn the rather strained deduction set out in (1), then quotes from paragraph C-l of the codicil, “It is my wish that the bequests to my daughters as set forth in the will should stand as written.” For this language to create any inference favorable to plaintiff’s position, her argument set out in (1) would have to be more convincing and acceptable. (3) In plaintiff’s next argument she quotes “* * * and which I do not entail * * *” from paragraph C-2 and asserts, “Obviously testator thought the other property in the Codicil division to Rosa also had ‘fee tail’ characteristics, otherwise he would not have found it necessary to use the language, ‘and which I do not entail.’ Since this property was originally devised and bequeathed in Section Three of the 1885 will as residual property, the ‘fee tail characteristics’ could only attach because of their disposition via the will itself.” However, there are several reasons we cannot accept such an over-all deduction from the words used reference the lands here involved. First, the terminology used in C-2 pertains to the devise to Rosa and not Minnie; second, if the testator did not “entail” the property following the use of such language, it should be noted the part so devised included mostly town property and a small acreage in comparison to the large tracts certainly “entailed” by paragraphs First and Second, and following the same construction as plaintiff, it is significant that the devise to Minnie in C-3 included the town properties with which we are now concerned. If Rosa’s town properties were not “entailed,” it is more logical that those of Minnie were not to be. (4) Testator’s use of the word “division” rather than “distribution” in C-l of the codicil does not appear to have the implications suggested by plaintiff. (5) Plaintiff’s affidavits attached to her motion for summary judgment, which generally insinuate that certain legal counsel in preparation of deeds had concurred in her construction of the will and codicil, are of interest but certainly not binding on this court. Additionally, they are entirely foreign to any facts or circumstances surrounding the execution of the will or codicil which might reflect in some way the intent of the testator. Cockrell v. First National Bank of Kansas City, 357 Mo. 894, 211 S.W.2d 475.

We recently held in Farkas v. Calamia, Mo., 373 S.W.2d 1, 3, “The rule for determining the effect of subsequent language which purports to reduce the quantum of a devise or bequest made by previously used language is well stated in Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21, 24, as follows: ‘“[T]he devise of a fee in terms, or by words necessarily describing an absolute estate * * * cannot be annulled except by later language in the will, which expressly or by necessary implication, arising from words equally as clear and conclusive as those in granting the fee, cuts down the previous grant of the fee.”’” See also Mo.Dig., Wills, 601(1). Quite obviously plaintiff’s approach fails to meet the demands of this established rule. Additionally, the correctness of so holding is buttressed by the fact the daughters are found to have the same estate in Paragraph Third property they would have had upon the death of their mother under the will had she survived the testator. Nor can we undertake to explore the testator’s mind except through the expressions used in the will itself. Vaughan v. Compton, Mo., 235 S.W.2d 328, 330.

The trial court correctly found plaintiff had no interest in the lands involved, and its judgment is hereby affirmed.

SEILER and STORCKMAN, JJ., concur.

HENLEY, P. J., not sitting.