author: BOHLING, Commissioner.

text:
    STATE of Missouri, Respondent, v. Reggie Allen BALDWIN, Appellant.
    No. 48967.
    Supreme Court of Missouri. Division No. 2.
    June 11, 1962.

      Williams & Miller, Springfield, for appellant.
    Thomas F. Eagleton, Atty. Gen., Joseph G. Stewart, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Reggie Allen Baldwin appeals from a judgment imposing a sentence of seven years’ imprisonment for subornation of perjury. §§ 557.040, 557.050, 557.020. Statutory references are to RSMo 1959 and V.A.M.S. He questions the submissibility of the State’s case, the admission of certain evidence, the propriety of an instruction, and remarks of the State’s attorney in the closing argument.

Raymond Baldwin, defendant’s son, and Tommy Burton were charged with breaking into the Westport school. Raymond’s case was tried in the Circuit Court of Greene County, Division One, Honorable William R. Collinson, presiding, on January 17, 1961. He contended he was not at the burglary, did not commit it. He was represented by two attorneys of Springfield, Missouri. Burton, who had pleaded guilty, testified that Raymond and he committed the burglary between 7:00 and 8:00 p. m. on Sunday, March 13, 1960. There was testimony and the jury were instructed on Raymond’s defense of an alibi. The jury acquitted Raymond.

Mrs. Helen Smith, who was 19, the mother of two infant daughters, separated from her husband and later divorced, was sworn and testified on behalf of Raymond. Raymond and she dated. Witness kept a diary. Refreshing her memory from entries in the diary, she testified, material here in support of Raymond’s alibi defense, that Raymond, on March 11, 1960, asked her to go out with him on Sunday; that Raymond and she went to the home of Mr. and Mrs. Warren Colson between 4:00 and 4:30 p. m. Sunday, March 13, 1960; that they had supper at the Colsons’, at which chicken was served, and played cards; that Raymond consumed quite a bit of beer, got drunk and passed out about midnight on the divan; that someone removed his shoes; that Mr. Colson took her home about 1:00 a. m. on the 14th; and that Raymond had not left the Colsons’ home from the time they arrived until she left.

The cross-examination developed that the diary entries of March 13 had been written in different ink; that part of the entry appeared under “March 14,” with the “14” scratched out; and that she never mentioned this testimony to any public official and first disclosed it from the witness stand.

At this, the subornation trial, the following evidence was adduced:

Mrs. Colson testified that right after the first of 1961, defendant and Raymond drove Mr. and Mrs. Colson to the attorneys’ office, where they held a conference. At that conference the Colsons’ testimony was to be that Raymond was at their house the night of the burglary, Sunday, March 13, 1960, had supper, played cards, got drunk, passed out, and Mr. Colson put him to bed on the divan. Defendant was present and could hear what was said. Neither Helen Smith nor chicken for supper was mentioned.

Mrs. Smith testified as follows: She first dated Raymond about the first of June, 1960. She was asked to be a witness that Tommy Burton’s reputation for truth was bad, but did not commit herself one way or the other. She talked to defendant by telephone early in the morning of January 10, 1961, about a week before the trial, and defendant said Raymond wanted her to be a witness for him and for her to go to the garage and talk to Raymond. Joan Baker, Mrs. Smith’s sister-in-law, took Mrs. Smith to a garage on Highway 66 West. Mrs. Smith went in the garage and talked to Raymond. She came out and Mrs. Baker took her to defendant’s home. Mrs. Smith went in the house and talked to defendant. She waj in defendant’s home for twenty to thirty minutes. Mrs. Smith testified defendant told her she was to testify that she and Raymond were at Warren Colson's house; that they played cards and things; that Raymond got drunk and passed out on the divan. She told him she could not do it. He said he thought she better and, when she asked why, said Raymond would talk to her later. She testified Raymond thereafter talked to her on Thursday night, on Sunday, and on Monday before the trial. She then testified that at the garage Raymond said he wanted her to testify at his trial, and for her to go to his house and talk to his father; and that Mrs. Baker then drove her to defendant’s home. Raymond came to the “Sky Ranch” Thursday evening. She went out, got in his car, and “asked him about it.” He said he didn’t know too much about what we did and would have to ask Mr. Colson. She told him she couldn’t swear to all that in court. “And he said, well, I better, if I didn’t he would make sure something happened to my two girls.” She later talked to him in her home before the trial, and he told her they were supposed to have been over at Mr. and Mrs. Colson’s between 4:00 and 4:30; they played cards, had chicken for supper; he got drunk and passed out on the divan around midnight, and Mr. Colson took her home between 12:30 and 1:00 a. m. They talked about remembering the date, and she mentioned she kept a diary and could say she had it in her diary. Raymond agreed to this.

The day before Raymond’s trial, Raymond and Mrs. Smith went by for the Colsons, then for defendant at his home, and took them to the attorneys’ office. ■ Mrs. Colson testified that she then first met Mrs. Smith. On the way over, Mrs. Colson was first told that they had chicken for supper on March 13, 1960. She did not remember that defendant said this but he heard it. All those named were at this conference with the attorneys. The testimony of Mrs. Colson and Mrs. Smith was that the attorneys did not tell the witnesses what to testify to; that they had been briefed and their testimony discussed before they went to the attorneys’ office. What Mr. and Mrs. Colson and Mrs. Smith were to testify to at Raymond’s trial and hereinbefore narrated was discussed at this conference. Mrs. Colson remembered the date because she had secured a prescription for her sick child on that day, and Mrs. Smith said she had entered it in her diary. One of the attorneys told Mrs. Smith to bring her diary to court the next morning. On the way home from the conference, Mrs. Smith stated she didn’t know whether she had an entry in the diary for the 13th. Raymond said he would buy her a new diary if she did. She answered she would have to stay up all night writing in it. Defendant first told Mrs. Smith to bring her diary and, later, not to; that she wouldn’t have to show it if she didn’t have it. Defendant also told them if the Colsons and Mrs. Smith “stuck together he thought Raymond would get off,” and he would buy them some whiskey.

Defendant, his wife and Raymond came by for Mrs. Smith on January 17, 1961. Raymond told her not to bring the diary, they wouldn’t need it. They then tried but were unable to locate Mr. and Mrs. Colson. The Colsons had been subpoenaed to testify but, according to Mrs. Colson, they went to Mr. Colson’s uncle’s in the country because she wouldn’t get up in court and lie.

One of the attorneys told Mrs. Smith to get her diary at the noon recess when informed she did not have it. At noon, in the presence of defendant, Raymond told Mrs. Smith not to get her diary, he didn’t think they would need it. Upon learning that Mrs. Smith did not have her diary, the attorney told her he would not use her as a witness until he had seen the diary; and defendant, who was present, interrupted and volunteered to take her to get the diary. Mrs. Smith testified she got her diary from the house and upon returning to defendant’s car showed defendant that she had an entry for March 13. Defendant, while the car was in the driveway, had her draw a line under the entry of March 13, and she, with defendant’s pen, made the following entries in her diary at defendant’s directions: Under March 11. “Got a date with Raymond Sunday to have dinner over at Warrens.” Under March 13. A line under her original entry. “Raymond and I went over to Warren’s for dinner tonight Mom came over and got the kids about 3:30 Raymond came over just as they were leaving Got home about 1:00 o’clock and was I forever more tired” “Raymond [The March 13 page ends and on the other side of the sheet the “14” of March 14 is scratched out.] got drunk and Warren had to bring me home The little stink passed out on us. [This is followed by a line.] Raymond came by today to say he was sorry he passed out last night and couldn’t bring me home he said he stayed all night over at Warrens.” On the way back and again at the courthouse before Mrs. Smith was called as a witness defendant told her, if asked, to be sure to say she made the entries on the dates shown in the diary. She so testified.

Mrs. Colson also testified Raymond was not at her home the evening of March 13, 1960; he never stayed all night or ate supper at her house, and Mrs. Smith had never been in her house.

Mrs. Smith also testified that all her conversations with defendant were in Greene County, Missouri; that she was at home with her two daughters on March 13, I960; that she did not see Raymond Baldwin that day or night; that she was not in the Col-son home on March 13, 1960, and had never been there; that she had her first date with Raymond about the first of June, 1960, and the last date Halloween night, 1960, and that her testimony in the case of State v. Raymond Baldwin concerning the whereabouts of Raymond Baldwin was false.

Defendant testified he never had any conversations with Mrs. Smith about her testimony at his son’s trial except a telephone conversation in which she wanted to know when the trial would be, and at the two conferences with the attorneys. He denied asking Mrs. Smith to give false testimony at his son’s trial or to make false entries in her diary or promising to buy Mrs. Smith and Mr. and Mrs. Colson liquor. He testified he drove Mrs. Smith home for her diary; that she was in the house about a half a minute; that she never opened her diary; that “I never seen the diary”; that “me and her never said a word going over and coming back.”

Mrs. Smith was picked up by the police and gave them a written statement on January 21, 1961, covering her perjury. The two attorneys, who were then representing this defendant, each testified that they talked to Mrs. Smith in January after her arrest and she told them she testified correctly at the trial and had lied to the police. Mrs. Smith testified that she told the attorneys that she had told the truth to the police; and in this she was corroborated to some extent by the testimony of her mother, Mrs. Violet Sloan.

Defendant contends the State failed to make a submissible case on the ground “the uncorroborated testimony” of Mrs. Smith was “so inconsistent, self-destructive, and unworthy of belief” as to not constitute substantial evidence in support of the verdict. Illustrative of the claimed inconsistencies are the following: Her testimony at Raymond’s trial that Tommy Burton’s reputation for truth and veracity was bad and at this trial on cross-examination that she did not know his reputation. Her testimony at Raymond’s trial that she had approximately thirty or forty dates with him and at this trial she thought she had six or seven dates with him after June, 1960. Her testimony at this trial that she was pretty sure she was living in the 600 block of North Broadway in Springfield on March 13, 1960, whereas there was no such address on North Broadway. She explained she had lived there but a month or two and was not sure of the address. Her testimony at this trial on cross-examination that she did not and that she did drink intoxicants. She stated: “Yes, I have drank some. I mean, I am not an alcoholic.” The conflict between her testimony and the testimony of the two attorneys representing the Baldwins as to whether she told the truth in her statement to the police was for the jury to determine, and a fair reading of Mrs. Sloan’s testimony is that Mrs. Smith stated she told the police the truth.

It is stated in State v. White, Mo., 263 S.W. 192, 194 [10, 11]: “A prosecution for subornation of perjury is not governed by the same rules of evidence as in trials for perjury; in the latter the principal witness must be corroborated. The sub-orner and the perjurer are not accomplices. Each is guilty of a separate crime. It is not necessary, therefore, as we held in a well-considered opinion by Williams, C. (State v. Richardson, 248 Mo. 563, 571, 154 S.W. 735, 44 L.R.A.[N.S.] 307), to the validity of a conviction for subornation of perjury, that the testimony of the perjurer be corroborated, either as to the subornation or the actual commission of the perjury.” Wigmore, Evidence, 3d ed., § 2042, p. 281.

In determining the submissibility of the State’s case we view the evidence in the light most favorable to the State, accept the State’s probative evidence as true and draw therefrom the permissible inferences favorable to the State, and disregard defendant’s contradictory evidence. State v. Feasel, Mo., 344 S.W.2d 41, 42 [3], and cases cited.

In this case, Mrs. Smith’s testimony on the main fact issues was corroborated. There was other evidence to establish what Mr. and Mrs. Colson’s and Mrs. Smith’s testimony was supposed to be at the burglary trial; and what Mrs. Smith’s testimony was at that trial. Tommy Burton testified that Raymond committed the burglary with him between 7:00 and 8:00 p. m. March 13, 1960; Mrs. Colson testified that Raymond was not at her home on March 13, 1960, from 3:30 or 4:00 p. m. to 1:00 a. m. March 14, 1960; that he never ate supper or stayed all night at her home, and that Mrs. Smith had never been in her home. There was other corroborating testimony.

Defendant’s cases of State v. Sarten, Mo., 344 S.W.2d 1, 3-7, or State v. Nash, Mo., 272 S.W.2d 179, 183 [1], do not establish defendant’s position under this record. Mrs. Smith’s testimony was for the jury to weigh. Defendant’s contention is overruled.

Mrs. Smith estimated that the trip to her home at 527 South Broadway to get her diary, make the entries she made therein and return to the courthouse took twenty to twenty-five minutes. Detective Floyd Robards of the Springfield Police made the trip over the route described by Mrs. Smith to 627 South Broadway with his partner, Jerry McLachlin, driving and Mrs. Smith giving the directions. Stopping in the driveway, he went up to the house, introduced himself, returned to the car, wrote the entries Mrs. Smith testified she made in her diary, and returned to the ■courthouse in nineteen minutes. They kept within the speed limits on the trip.

Defendant contends Mr. Robards’ testimony should have been excluded because it was not established that the experiment was made under substantially the same conditions that existed when defendant and Mrs. Smith made the trip.

Defendant’s best judgment was that his trip with Mrs. Smith consumed fifteen minutes. He testified “the traffic was just ordinary” for around the noon hour; that the stre<ts were dry and clear, and his average speed was around 20, 25 m. p. h. John E. Craig, Jr., defendant’s witness, testified a like experiment with defendant driving took thirteen minutes, defendant pausing in the driveway for about thirty seconds; that the average speed was about 25 m. p. h.

It is stated in Faught v. Washam, Mo., 329 S.W.2d 588, 598 [13], cited by defendant: “Generally speaking, experimental evidence is admissible, in the sound judicial discretion of the trial court, when it is shown that the experiment was conducted under conditions substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in suit. However, it is not required that the conditions surrounding the experiment should have been precisely identical with those surrounding the occurrence under investigation; and, if the conditions were substantially similar, the differences in condition are for the jury in evaluating the weight to be given such evidence.”

Mrs. Smith had to enter the house for her diary and upon her return, while defendant’s car was in the driveway, made, at defendant’s directions, the entries in her diary quoted hereinbefore. Under Mr. Craig’s and defendant’s testimony the stop in the driveway was for thirty seconds. These experiments did not involve scientific exactness or technical knowledge. They were test runs. Detective Robards’ was the only experiment giving consideration to the time required to copy said entries. If he stopped at 627, as he testified, instead of 527 South Broadway, the additional time consumed thereby lessened the available time for making the entries and was to defendant’s advantage. When an allowance is made for the time consumed in making the entries in the diary defendant’s evidence (making no such allowance) of thirteen or fifteen minutes and Robards’ testimony (making an allowance for copying the entries) of nineteen minutes are in substantial accord. State v. McWilliams, 267 Mo. 437, 184 S.W. 96, 101 [13]; State v. Forbus, Mo., 332 S.W.2d 931, 934 [3]; 24B C.J.S. Criminal Law § 1915(5), p. 75. Robards’ said testimony was cumulative to the prior testimony of Mrs. Smith and stands uncontradicted by any testimony allowing for making the entries in the diary. State v. Bright, Mo., 269 S.W.2d 615, 623 [10].

The trial court considered this questioned testimony admissible and in the circumstances of this record we find no abuse of discretion constituting prejudicial error.

There was substantial evidence of a conspiracy between defendant and his son Raymond and Mrs. Smith’s testimony as to statements of Raymond out of the presence of defendant was properly admitted.

Direct proof of agreements between conspirators is seldom obtainable and a conspiracy to commit an offense may be established by circumstantial evidence. State v. Strait, Mo., 279 S.W. 109, 113 [4, 7] (stating “proof of a common criminal purpose, acted upon by the parties” is sufficient to show a criminal conspiracy) ; State v. Menz, 341 Mo. 74, 106 S.W.2d 440, 448 [8-10]. The fact that Mrs. Smith admitted committing perjury at Raymond’s trial only affected her credibility. State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 27 [8], A conspiracy may be established by the testimony of one of the conspirators. State v. Stogsdill, supra 23 S.W.2d 28 [13] ; State v. Emrich, Mo., 250 S.W.2d 718, 725 [9], See also State v. Price, 361 Mo. 1034, 238 S.W.2d 397, 399 [3],

Mrs. Smith testified defendant told her to talk to Raymond at the garage. She did so and then went to defendant’s home. Defendant outlined what her testimony should be. When she protested, defendant said he thought she better and that Raymond would talk to her. Then, after testifying that Raymond thereafter talked to her on three occasions prior to the trial, she testified that at the garage Raymond told her to talk to his father, defendant. Discussions concerning the supposed testimony of Mr. and Mrs. Colson and Mrs. Smith were had in the automobile and the attorneys’ office in the presence of defendant and Raymond. Mrs. Colson corroborated Mrs. Smith’s testimony in material respects, including discussions in the automobile and the attorneys’ office, stating “I had been briefed on all of this before” they went to the attorneys’ office. Both Mrs. Colson and Mrs. Smith stated that on the trip home defendant told them “If we all stuck together he thought Raymond would get off.” On the day of the trial,, defendant took Mrs. Smith to her home for her diary and dictated the entries she made therein.

The State’s evidence, if believed, clearly authorized a finding that defendant and his son Raymond were acting in concert to-have Mrs. Smith give perjured testimony-in Raymond’s burglary trial.

Defendant’s counsel at the close of the State’s case stated to the court that the State intended, if defendant testified, to use “a record of defendant having been-fined for contempt of court” and “we would' like a ruling on that at this time” to avoid’ materially prejudicing the defendant by objecting before the jury. The court informed the State’s attorney if he had no-citation to back him up the inquiry would', not be permitted. Defendant’s request proceeds upon the theory the evidence would! be material if admissible.

On direct examination when asked if on-the trip for Mrs. Smith’s diary he told' Mrs. Smith “to be sure to tell that she-made them [the questioned entries in her diary] on March the 13th and the 14th?”' defendant answered: “No, I didn’t tell her. Q. Sir? A. No, I didn’t tell her. I will tell you the truth: I wouldn’t lie,, there wasn’t a word — me and her never said a word going over and coming back, and come on up and I went in the courthouse — in where they was having the trial, they was just picking up the trial, and' she set down by the side of my wife, outside, and we never said a word. That’s-the truth. May God Almighty strike Me down if it’s not the truth.”

By this testimony defendant intended to have the jury believe he was telling the truth, was not lying, with respect to the inquiry made, and would not lie under any circumstances.

On cross-examination defendant testified that he had previously been a witness in court under oath and, after first answering he had never sworn falsely, he was asked “whether or not on October the fourth, 1948, you were not sentenced to three months in the Greene County Jail and fined $500.00 for contempt of court on the grounds you swore falsely under oath?” Defendant answered: “Yes, I was fined that. Yes.”

A defendant on trial in a criminal case who testifies “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.” § 546.260. A person “convicted of a criminal offense” is a competent witness, “but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination * * *.” § 491.050. See State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 92 [6], 103 A.L.R. 339.

“[Wjhere evidence is admissible for one purpose or one issue but would be improper for other purposes and upon other issues in the case, it should be received” and an instruction given, if requested, limiting the purpose for which the jury may consider the evidence. State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58, 61 [3], 124 A.L.R. 1331; State v. Scown, Mo., 312 S.W.2d 782, 789 [7].

State v. King, 342 Mo. 975, 119 S.W.2d 277, 282 [8-11], involved the rape of E. F., a 13-year old girl at a boarding school. On direct examination defendant, being asked “ * * * did you ever get smart, as they say, with any of these girl students,” answered: “No, sir.” On cross-examination defendant stated he meant he didn’t get smart with the girl students in an amorous way or by having sexual intercourse with them. The State then questioned defendant in some detail with respect to clandestine relation with M. W. and adduced evidence to impeach defendant. The court considered defendant had tendered the issue and the State had the right to meet it, although it would have been improper to receive the questioned evidence in the State’s case in chief.

In State v. Wilson, Mo., 320 S.W.2d 525, 528 [3, 4], defendant, charged with molesting a minor, one Richard -, testified on direct examination that he had never committed the act charged with Richard-or with anyone else, and, on cross-examination, that his prior testimony in this respect was “correct.” In rebuttal Barry - testified that defendant had committed at a different time a like act upon him. The court considered defendant intended to convey to the jury that he was not the kind of a person who possibly could commit such a detestable offense, and while the State could not initially and in chief have introduced the testimony of Barry, his testimony was proper in rebuttal, quoting the following from the King case, supra: “Certainly the accused ought not to be permitted to tender the issue and gain the benefit of so doing, and then contend there is no such issue, or that the question is immaterial, when the prosecution offers to meet it.”

In State v. Carter, 345 Mo. 74, 131 S.W. 2d 546, 547 [3], defendant, on trial for the murder of one Pierce, testified upon redirect examination to trouble he had with one Spratt, and the State was permitted to introduce evidence in rebuttal contradicting defendant’s version of the Spratt difficulty only because defendant saw fit to testify with respect thereto. Consult State v. Kaufman, Mo., 254 S.W.2d 640 [3], and cases cited.

Where defendant tenders the issue, the State has a right to meet it, and is not bound by defendant’s answer. State v. King, supra, 119 S.W.2d 277, 284 [12], and this is the effect of other cases supra.

We have said a criminal contempt proceeding is not a criminal case. Osborne v. Purdome, Mo.Banc, 244 S.W.2d 1005, 1011 [4-9], 29 A.L.R.2d 1141; Osborne v. Owsley, Banc, 264 Mo. 544, 264 S.W.2d 332, 38 A.L.R.2d 1128. However, a judgment in contempt for perjury has been considered pertinent upon the question of a witness’s credibility. It is stated in 98 C.J.S. Witnesses § 507, p. 409: “Although a judgment holding a person in contempt of court is not a ‘conviction of a crime’ within the rule, where the basis of the judgment in contempt is perjury, it is pertinent on the question of credibility.” (Emphasis supplied.) See also 58 Am.Jur., Witnesses, § 735, p. 398; Niemeyer v. McCarty, 221 Ind. 688, 51 N.E.2d 365, 370 [15], 154 A.L.R. 115; Dockerty v. People, 96 Colo. 338, 44 P.2d 1013, 1018 [17]; Annotation, 49 A.L.R.2d 846, § 2; 1 Underhill, Criminal Evidence, 5th ed., 1962 Supp., § 244, n. 17b.

We hold that since defendant affirmatively originated the issue of his veracity as a witness in his direct examination the State had the right to meet this issue by the proof tendered.

Defendant says the court erred in overruling his obj ection to the State’s comment in argument upon the failure of Raymond Baldwin, whose name was endorsed as a witness on the information, to testify on behalf of defendant, because the witness was either equally available to the State or was not available to this defendant. Defendant does not quote the questioned comment. It was to the effect: “If this man were not guilty, Raymond Baldwin would have been in this courtroom and told you that.”

It is stated in State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 544 [8], that the mere fact that the names of witnesses are “indorsed on the State’s information does not establish that they were partial to the State.” Supreme Court Rule 24.17, V.A. M.R. requires the endorsement of the names of witnesses on informations. § 545.-240. In State v. Larkin, 250 Mo. 218, 157 S.W. 600, 609 [9], 46 L.R.A.,N.S., 13, it was held that comment on the failure of a daughter of a defendant, who was at or near the place of a killing, to testify was proper.

In State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 649 [4], stressed by defendant, the witness involved had initiated the prosecution and testified for the State at the first trial, but was not called at the second trial, though endorsed and subpoenaed as a witness by the State. In these circumstances it was considered prejudicial for the State in its closing argument to retaliate by asking why defendant had not called said witness in answering defendant’s legitimate argument commenting on the State’s failure to call him. That is not the situation here presented.

Defendant states Raymond stood charged upon a separate information with the same crime for which defendant was on trial. Claiming the right against self-incrimination is personal to the individual. State v. Malone, Mo., 301 S.W. 2d 750, 757 [19, 20], The prohibition against commenting on a person’s failure to testify is limited to the accused, or the wife or husband of the accused. Sup.Ct.R. 26.08; § 546.270.

State v. Collins, supra, 165 S.W.2d 1. c. 648 [2], states “available,” as here used, does not mean merely accessible for the service of a subpoena, but “depends upon such matters as the one party’s superior means of knowledge of the existence and identity of the witness, the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation, and make it natural that he would be expected to testify in favor of the one party and against the other.”

A State’s attorney may make a vigorous argument so long as his remarks are confined to the record and the legitimate inferences to be drawn therefrom. The State’s comment was not that Raymond’s testimony would be damaging to defendant, as defendant argues, but that Raymond would give favorable testimony to defendant if defendant were not guilty. From what is said in State v. Collins and the facts disclosed by this record, the comment of the State was legitimate argument.

Defendant claims the court committed error in giving instruction No. 6. Defendant’s only authority is State v. Gentry, 320 Mo. 389, 8 S.W.2d 20, 28 [6], a case where, upon a separate trial, Gentry was convicted under an information charging Wilkins Taylor and defendant jointly with the crime of rape; and an instruction told the jury they could consider the acts of Taylor as the acts of defendant if they found “that the defendant was ‘in company with’ Taylor” at the time of the rape without requiring the jury to find “that defendant and Taylor were, at the time in question, acting in concert and in furtherance of a common purpose and design.”

Instruction No. 6 is in four paragraphs. Defendant’s criticism of the instruction involves the last paragraph, which reads:

“You are further instructed that if you find and believe from the evidence, beyond a reasonable doubt as reasonable doubt is defined in other instruction, and disregarding any statements, if any, made by Raymond Baldwin not made in the presence of the defendant Reggie Allen Baldwin, that Raymond Baldwin and defendant Reggie Allen Baldwin did knowingly act together to suborn perjury by Helen Smith then, and in that event only, you may consider the statements of Raymond Baldwin, if any, made outside of the presence of the defendant Reggie Allen Baldwin, as you may consider any other evidence in this case, in determining the guilt or innocence of this defendant.”

If Raymond and defendant “did knowingly act together to suborn perjury by Helen Smith,” they intelligently, consciously, and intentionally (State v. Rack, Mo., 318 S.W.2d 211, 215 [1]) acted together, in concert, to carry out their common purpose to suborn perjury by Helen Smith. The questioned portion of this instruction is cautionary in nature and appears to be based upon an instruction stated to be correct and favorable to defendant in State v. Yates, Mo., 252 S.W. 641, 645 [5], It required the jury to find the submitted acting together beyond a reasonable doubt, without considering any statements by Raymond not made in the presence of defendant, and was as favorable to the defendant as the approved instruction in the Yates case. Defendant’s presentation does not establish error.

The foregoing disposes of the points presented in defendant’s brief. Our examination of the matters we inquire into under Supreme Court Rule 28.02 discloses no prejudicial error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Jesse B. MILLER, individually, and as a member of a class of taxpayers, Appellant, v. STE. GENEVIEVE COUNTY, Missouri, and Joseph X. Flieg, Rudolph E. Field and Oswald H. Meyer, Individually, and as Judges of the County Court of said County, Respondents.
    No. 48580.
    Supreme Court of Missouri, Division No. 2.
    June 11, 1962.

      William C. Barnett, St. Louis, for appellant.
    Charles A. Weber, Ste. Genevieve, for respondents.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment dismissing his petition for failure to state a claim upon which relief can be granted.

The action was brought in two counts. Plaintiffs alleged in Count I that he is the owner of 907 acres in Ste. Genevieve County. The defendants are Ste. Genevieve County and Joseph X. Flieg, Rudolph E. Field and Oswald H. Meyer who are alleged to be the judges of the county court of said county. Plaintiff alleged that on or about December 1, 1959, the defendants trespassed on his land and caused their agents and servants to operate thereon a bulldozer, grader and trucks, and in doing so destroyed growing timber of the value of $1,000, and “as a direct result thereof defendants are liable to plaintiff for damages in the sum of $3,000, according to law.” In separately numbered paragraphs, but in the same count, plaintiff alleged that he was the owner of a private road which was of “great value” as an access road, and the defendants caused “highly destructive work” to be done thereon which rendered the road impassable. He then alleged that his actual damage was $10,000, and because the acts of the defendants were “intentional, unwarranted, unlawful, malicious, and without just cause or excuse” he is entitled to punitive damages in the amount of $10,-000.

Plaintiff apparently attempted to state a claim for treble damages for trespass pursuant to Section 537.340 RSMo 1959, V.A.M.S., and he improperly commingled in the same count an attempt to state a cause of action for actual and punitive damages resulting from a common law trespass on his private road. See Civil Rule 55.13, V.A.M.R. Although defendants have filed a brief in this court they do not question the right of plaintiff to maintain an action in tort against Ste. Genevieve County or against the named individuals as judges of the county court. Plaintiff presents nothing in his brief in justification of his right to do so. We are compelled, under the circumstances, to raise the question sua sponte.

Aside from any right of plaintiff to just compensation if Ste. Genevieve County has taken or is in the process of taking or damaging his property for a public use, see Art. I, Sec. 26, Constitution of Missouri, V.A.M.S., counties are territorial subdivisions of the state, Clark v. Adair County, 79 Mo. 536, and are quasi corporations and political subdivisions of the state exercising purely governmental functions, and as such are clothed with the state’s immunity from tort liability, including that for trespass, in the absence of a statute or constitutional provision to the contrary. Cullor v. Jackson Township, Putnam County, Mo., 249 S.W.2d 393; Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306, 309; 20 C.J.S. Counties § 320 and § 319; 14 Am.Jur. Counties § 48; 25 Am.Jur. Highways § 94. See also Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, supra; Sharp v. Kurth, Mo.App., 245 S.W. 636; Dillon, Municipal Corporations, Vol. IV, 5th Ed., § 1640, p. 2856. Plaintiff has alleged nothing in his petition to take this case out of the above general rule, and we necessarily conclude that insofar as Count I purports to state a claim against Ste. Genevieve County for tort, that is, for statutory or common law trespass, it was properly dismissed for failing to state a claim upon which relief can be granted.

This leaves the question of whether a claim is stated in Count I upon which relief may be granted against the individual members of the county court. Other than naming the individuals in the caption, the only specific reference to them in the petition is that “Defendants Joseph X. Flieg, Rudolph E. Field and Oswald H. Meyer, are, and were at all such times, Judges of the County Court of defendant Ste. Genevieve County, Missouri.” It is then alleged that the “defendants,” meaning the county and the individual judges thereof, did or caused to he done the acts complained of. While it is not clear from the petition, it is reasonably apparent that the acts were done in the construction of a road, an activity expressly authorized and directed to be carried on by the county court. Section 229.040 RSMo 1959, V.A.M.S. The effect of the allegations in the petition is that in doing the acts complained of the named individuals acted in their official capacity as judges of the county court and within their authority, and “The officials of [a] county * * * are agents of the state in the performance of their duties with reference to bridges and roads.” State ex rel. Reynolds County v. State Highway Commission, 328 Mo. 859, 42 S.W.2d 193, 196. Any allegations which might be said to imply that the acts complained of were in excess of or outside of their authority as county judges are mere conclusions only, and as such are to be considered as no statement at all. Goodson v. City of Ferguson, Mo., 339 S.W.2d 841. When acting in their official capacity no personal liability for tort is incurred by the county judges in the absence of a statute imposing such liability. Cullor v. Jackson Township, Putnam County, supra; 20 C.J.S. Counties § 97. See also 25 Am.Jur. Highways § 605, and 39 C.J.S. Highways § 171, and the general rules there set out as to when public officers may be personally liable for injuries to property.

Under the circumstances, Count I does not state a claim upon which relief can be granted, and defendants’ motion to dismiss was properly sustained.

We turn now to Count II of the petition which purports to be a taxpayers’ action in the form of a class action. The substance of it is that defendants have unlawfully and improperly spent, and threaten to continue spending, public tax money “in working plaintiff’s private road.” The prayer is for an accounting and an injunction.

Although the allegations in Count II are brief, they clearly set forth the contention that Ste. Genevieve County and the members of the county court have spent and are proposing to spend public money obtained by taxes in the improvement of a privately owned road. If this is true the expenditures are illegal. “[T]axpayers have always had the remedy of injunction at common law, without aid of statutory authority, to enjoin the illegal expenditure of public moneys,” and this remedy applies to counties and to the members of the county court or other county officials. Everett v. County of Clinton, Mo., 282 S.W.2d 30; Watson v. Kerr, 315 Mo. 781, 287 S.W. 337, 340; Berghorn v. Reorganized School Dist. No. 8, Franklin County, 364 Mo. 121, 260 S.W.2d 573; 52 Am.Jur. Taxpayers Actions §§ 2, 5 and 28.

No contention is made by defendants in their brief to this court that this is not a proper class action or that the provisions of Civil Rule 52.08, V.A.M.R., are not applicable, or if applicable, that there has been no compliance with them. Neither is it contended that plaintiff and the class of taxpayers he purports to represent do not have the right to bring an action to enjoin unlawful and illegal expenditures of public money. We also note that defendants do not contend that if they are spending public tax money in performing work on a privately owned road they have the right as a matter of law to do so. The only contentions made by defendants are that “there [are] absolutely no allegations in this Count that the plaintiff owns a private road over the land which the plaintiff has attempted to describe;” there are no allegations “in Count II against any individual wrongdoing by the defendants, Joseph X. Flieg, Rudolph E. Field, and Oswald H. Meyer;” and “plaintiff has pleaded conclusions.” We shall examine these contentions.

The allegations of Count I are incorporated into Count II by reference. This is an approved and authorized procedure. Civil Rule 55.14, V.A.M.R. In Count I, and by reference in Count II, plaintiff alleges that he “is, and was at all such times, the owner of a private road extending about two miles across his said land.” Defendants’ first contention obviously is without merit.

Plaintiff also alleges that the defendant members of the County Court of Ste. Genevieve County have spent and are threatening to spend public money obtained by taxes to perform work on plaintiff’s privately owned road. That is an allegation of wrongdoing on the part of the named individual defendants, so the second contention is without merit.

It is true that in both counts of the petition there are some allegations of conclusions, but defendants’ assertion of this is, at most, a conclusion itself with no attempt to point out the allegations which they contend to be deficient. However, from what we have said it is apparent that in Count II there are sufficient allegations of ultimate facts to state a claim upon which the relief of an injunction may be had if the facts alleged are established to be true and correct. We consider the request for an accounting to be surplusage as no allegations are made to show plaintiffs are entitled to it.

We do not foreclose any proper and authorized motion for a more definite statement or other appropriate relief. However, under the circumstances, the judgment dismissing Count II of the petition was erroneous.

The judgment is affirmed as to Count I, and is reversed and the cause remanded as to Count II.

BOHLING and BARRETT, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Cecilia PARRISH, Fomerly Cecilia Gilbert, Plaintiff-Appellant, v. Louella Lorena McDANIEL, Formerly Louella Lorena Gilbert, Edward W. Garnholz and Arnold J. Willman, Coadministrators of the Estate of Elmer R. Gilbert, Deceased, Robert D. Gilbert, Commodore Gilbert, Walter Gilbert, Myrtle L. Nichols, Mrs. Edwin Leroy Gilbert, Wilbur E. Gilbert and Ruby Henson, Defendants-Respondents.
    No. 48882.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.
    Joseph J. Becker, Wm. J. Becker, Clayton, for plaintiff-appellant.
    Edward W. Garnholz, Arnold J. Will-mann, Clayton, for respondents.
   HOUSER, Commissioner.

This is a suit to quiet title (Section 527.-150, RSMo 1959, V.A.M.S.) in which plaintiff seeks equitable relief. The circuit court dismissed plaintiff’s petition at the close of her case and she has appealed.

We have jurisdiction because this appeal involves the title to real estate within the meaning of Constitution of 1945, Art. 5, § 3, V.A.M.S.

Respondents filed a motion to dismiss the appeal for failure to comply with Supreme Court Rule 83.05, V.A.M.R. We have determined that the case should be decided on the merits. Accordingly, notwithstanding appellant’s brief is subject to criticism, the motion to dismiss the appeal should be and is overruled. Jacobs v. Jacobs, Mo. Sup., 272 S.W.2d 185, 188.

Plaintiff’s evidence follows: In 1931 the land in question, a farm in Ste. Genevieve County, was deeded to plaintiff, Cecilia, the wife of Elmer R. Gilbert. Cecilia and Elmer moved onto the farm in 1932 and lived there until early in the spring of 1937. The farm was encumbered by a deed of trust to secure a note in favor of William D. Stites. There was an overdue and unpaid principal balance of $1700. Interest was overdue and back taxes on the property were unpaid. The principal balance, interest and taxes amounted to approximately $2500. Cecilia and Elmer also owed money to Elmer’s sister, Louella Gilbert (now McDaniels), for money advanced to Cecilia and Elmer on the farm and for equipment. Cecilia and Elmer were in serious financial difficulty and in danger of foreclosure of the deed of trust. In the spring of 1937 they moved to Clayton, where they took up residence with Elmer’s mother, his brother and his sister, Louella Gilbert. While they were living in the same house and on August 16, 1937 Cecilia and Elmer executed and delivered to Louella a warranty deed to the farm, absolute on its face, subject to the deed of trust held by William D. Stites. This deed was filed for record on February 28, 1938.

On August 17, 1937, as part of the same transaction, Louella executed the following paper writing, which was prepared and executed at Cecilia’s request, and filed for record on February 28, 1938:

EXHIBIT “A”

“THIS INDENTURE WITNESSETH: That whereas, Cecilia Gilbert, is the owner in fee simple title to a certain farm containing 1,075 acres more or less, near Wein-garten, Ste. Genevieve County, Missouri, and Whereas, there is a certain Deed of Trust against said farm, securing principal note and Interest notes, owned by one, William Stites on which there is due $1700.00, more or less principal, and interest and on which land there is back taxes due of about three years, making the total amount due on said Deed of Trust, principal, interest and back taxes of approximately $2500.00 more or less. Also Any money advanced to Cecilia Gilbert & Elmer R. Gilbert on Farm and Equipment. Whereas, said Cecilia Gilbert and Elmer R. Gilbert her husband, have executed a Warranty Deed transferring title of said property to one, Luella Gilbert with the agreement and understanding between said Cecilia Gilbert and said Luella Gilbert that said Luella Gilbert is to pay said notes owned or held by said Stites secured by said deed of trust and to pay back taxes on said land, that if at any time within two years from this date, said Cecilia Gilbert (and Elmer R. Gilbert) sells said land, and pays to said Luella Gilbert whatever amount she has advanced on account of said Deed of Trust, notes, interest or taxes, said Luella Gilbert will cause to be executed whatever deed or conveyance as may be necessary to transfer the title to said property into the name of said prospective purchaser.

“It is further agreed between Luella Gilbert and Cecilia Gilbert, there will be no lease executed for more than Twelve Months, subject to sale of property during the Two years allowed to redeem.”

On August 16, 1937, as part of the same transaction, Louella executed a deed of trust on this land in favor of William D. Stites to secure seven notes signed by her: a principal note for $4000 due three years hence, and six interest notes, each for $120, due at six-month intervals. The $4000 deed of trust was filed for record on August 18, 1937. The recorder of deeds testified that after having been recorded it was mailed to Louella at her address in Clayton. There was some indefinite and inconclusive evidence, excerpted from Louella’s deposition, to the effect that if the $4000 deed of trust was mailed to Louella it was in her possession, and that if she had it “it was possible” she gave it to Elmer on April 8, 1949 when she delivered a warranty deed to the farm to Elmer; and that the $4000 deed of trust “was never used as collateral to make a loan.” There was no evidence, however, that the $4000 note was not delivered to Stites so as to become a binding obligation, or that Louella did not receive the consideration referred to in the deed of trust, namely, $4000 “in cash.”

Cecilia never had possession of the farm after August 17, 1938. Louella had exclusive possession and control of the property until April 8, 1949. Louella did not exercise this control personally but did so through her brother Elmer, who rented the farm to various persons. Timber was cut from the farm and the land was cultivated. Cecilia received none of the rents or profits. Elmer and Louella sold the timber but there was no evidence as to the amount of the income they received from timber or crops. There was no evidence of any statements of receipts and expenditures made by Louella to Cecilia through the years. During the two-year “redemption” period, and on October 18, 1938, Cecilia wrote Louella a letter asking for an itemized account “of the money which Elmer borrowed from [Louella] while he was operating the farm, also itemized account of whatever [Louella] spent when [she] took over this farm in August 1937 * * *. In other words, I want the amount that we owe you on the farm deal. On this report will you also please show the amount that has been paid off.” There is no evidence that Louella complied with this request. Between August 17, 1937 and August 17, 1939 Cecilia tried to sell the farm, but there is no substantial evidence that she was able to find a purchaser during this period.

On August 16, 1939, at the request of Cecilia, Louella entered into and executed the following written agreement with Cecilia, which was filed for record on September 1, 1939:

EXHIBIT “B”

“THAT WHEREAS, Cecilia Gilbert is the owner in fee simple title to a certain farm containing one thousand seventy-five (1,075) acres, more or less, near Wein-garten, Ste. Genevieve County, Missouri; and

“WHEREAS, on the 17th day of August, 1937, Luella Gilbert entered into a certain agreement concerning the ownership of said property, which said agreement was recorded in the Office of the Clerk of the Circuit Court and ex officio Recorder of Deeds within and for the County of Ste. Genevieve, State of Missouri, on the 28th day of February, 1938, in Book 113, page 439.

“NOW THEREFORE, for and in consideration of the sum of One Dollar ($1.00) to me in hand paid, the receipt of which is hereby acknowledged, I, the undersigned Luella Gilbert, hereby extend the period of time for redemption of said property by Cecilia Gilbert and Elmer R. Gilbert, mentioned in said instrument, for six (6) months from this date, thereby creating new date of termination of said agreement on the 17th day of February, 1940, and on said date said redemption agreement shall become null and void without further evidence being filed of record.”

During this six-month extension period Cecilia found no purchaser.

Sometime after the execution of these instruments Cecilia and Elmer became estranged and Cecilia was awarded a divorce from Elmer on March 7, 1944.

On April 8, 1949 Louella executed and delivered a general warranty deed to the farm to Elmer. This deed was not recorded until April 17, 1959, after the death of Elmer, which occurred on January 7, 1959. Cecilia did not have actual knowledge of Louella’s warranty deed to Elmer until she found it of record in a search made at the office of the recorder of deeds sometime after April 17, 1959. The $4000 deed of trust from Louella to William D. Stites was satisfied of record on July 20, 1959.

Cecilia testified that at no time did Louella sue Cecilia to foreclose “the mortgage on this property,” or to adjust the equities between Louella and Cecilia, or to determine “the amount of money, if any” that Cecilia may have owed Louella.

There was no evidence of the value of the farm at any time between 1931 and the time of trial, which occurred in January, 1960. There was no evidence of the amount of money advanced by Louella to Cecilia and Elmer on the farm and equipment prior to August 17, 1937.

Cecilia filed this suit on October 30, 1959, naming as defendants the coadminis-trators of Elmer’s estate, and Elmer’s heirs, including Louella.

Plaintiff’s theory of the case as revealed by her petition, briefs and argument is that the foregoing created the relationship of mortgagor and mortgagee as between Cecilia and Louella; that by this transaction it was intended that Louella use the proceeds of the $4000 note and deed of trust to obtain a loan for Cecilia in a sum sufficient to discharge the $1700 note and deed of trust, interest and back taxes in the total sum of “approximately $2500”; that thus Louella became an equitable mortgagee; that during the time of her exclusive possession of the farm from 1938 until April 8, 1949 Louella received income from farm operations and timber sales in ■an amount sufficient to pay and satisfy the $2500 loan and interest thereon; that Cecilia repeatedly offered to pay and tendered Louella the $2500 plus interest but that Louella refused to accept the payment or tender; that Louella made and breached eral agreements to arbitrate and fix the amount of the debt and that Cecilia could pay the debt and recover the farm, or at her option Louella could pay Cecilia the value of the farm over and above the debt; that Louella never converted her equitable interest as mortgagee into a legal interest by foreclosure, and therefore had no title to convey to Elmer in 1949; that Elmer held the title under a resulting trust for the benefit of Cecilia, the true owner, who had no knowledge of the deed from Louella to Elmer until after it was recorded in 1959, following Elmer’s death. Cecilia seeks to have the title adjudged in her and in effect contends that Louella should be adjudged an equitable mortgagee whose claims have been paid and satisfied and that Louella has no present interest in the farm; that Elmer should be declared to have been a trustee of the title for Cecilia’s benefit, and Elmer’s heirs be found to have no title or interest in the property. (The matter italicized was not proved.)

A fact necessary and indispensable to hold a deed absolute on its face to be a mortgage is that the deed, although absolute in form, was in fact given as a mere security for a debt. Bailey v. St. Louis Union Trust Co., 188 Mo. 483, 87 S.W. 1003, 1005. The existence of a debt is indispensable to the existence of a mortgage. Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543; Powell v. Huffman, 358 Mo. 138, 213 S.W.2d 473; 59 C.J.S. Mortgages § 37, p. 73, fn. 86; Duell v. Leslie, 207 Mo. 658, 106 S.W. 489, 492. Plaintiff’s proof did not establish that the relationship of debtor and creditor existed between Cecilia and Louella after the execution of Cecilia’s warranty deed, or that the parties at that time intended that the deed operate only as a mortgage. There is a presumption that an absolute, unconditional conveyance of land is what it purports to be, that is, a deed, Ratermann v. Striegel, Mo.Sup., 273 S.W.2d 304, and cases cited 1. c. 306, and that presumption was not overcome. While plaintiff showed there was a debt at the inception for money advanced by Louella to Cecilia and Elmer on farm and equipment, and that by the written memorials of August, 1937 Louella assumed and agreed to pay the $1700 due on the note, accumulated interest and back taxes, plaintiff failed to show that these considerations survived and continued to subsist as debts of Cecilia and Elmer after the execution and delivery of the warranty deed to Louella. None of the documentation so indicates, either in express terms or by necessary implication. To the contrary, the references thereto in Exhibit “A” appear to be recitals of consideration for the warranty deed rather than acknowledgments of the creation or continuance of a debt. We think it fairly inferable that the $1700 note and interest thereon due William D. Stites and the back taxes were paid and satisfied out of the proceeds of the $4000 deed of trust and that this, together with the debt for farm and equipment advances, supplied the consideration for the giving of the warranty deed; that the liability of Cecilia and Elmer to Louella was thereby extinguished, so there was no debt left remaining to be secured. According to usual business practices, if there was a debt left in force, Stites’ $1700 note, when taken up by Louella, would have been transferred and surrendered by Louella to Cecilia, Ratermann v. Striegel, supra, 273 S.W.2d, loc. cit. 311, or a new note would have been given by Cecilia and Elmer for the sum to be paid by them (of which there is no evidence). There was no other evidence of a loan from Louella to Cecilia. No debt was mentioned in the papers. The instruments contain no covenant, promise or undertaking upon the part of Cecilia or Elmer to pay Louella the amount of her advances or payments, or any other sum. See Stafford v. McDonnell, 359 Mo. 925, 224 S.W.2d 951, 955. This is a circumstance of weight, and while not conclusive under our law, Carson v. Lee, 281 Mo. 166, 219 S.W. 629, 633, it has been said elsewhere that “ * * * the lack of any binding obligation on the grantor to pay the sum fixed on as the condition for a re-conveyance is generally accepted as decisive proof that it was not meant as a mortgage.” 59 C.J.S. Mortgages § 38, p. 75. Nor did the evidence indicate that Louella ever demanded of Cecilia the payment of any debt, or that Cecilia ever paid interest or any amount of money on account of the notes or tried to redeem the farm at any time during the 19-year period. “So far as the record discloses, the conduct of the parties, plaintiffs and defendants, has been such as would support the conclusion that the pre-existing debts had been wiped out or merged and no longer existed as legal obligations.” Ratermann v. Striegel, supra, 273 S.W.2d 1. c. 311.

We conclude that the terms of the written instruments together with other circumstances shown by plaintiff’s evidence clearly reveal a conditional sale — an absolute conveyance, with a contemporaneous agreement to reconvey upon condition— and not an equitable mortgage. The warranty deed was absolute on its face. Exhibit “A” provided for the reconveyance of the land to the prospective purchaser upon certain stated conditions. Under the evidence before the court it appears as a matter of law that the warranty deed satisfied and extinguished the debt for farm and equipment advances and provided the consideration for Louella’s assumption of the other obligations against the land; that the agreements manifest an intention on the part of the parties to sell the farm to Louella, with the right on the part of the vendors to resell to others within a limited period, in which case vendee Louella would be obligated to convey to the purchaser upon receiving reimbursement for amounts advanced by her in satisfaction of the $1700 deed of trust, interest and back taxes; that Cecilia and Elmer be given a “last chance to save something out of this land” and postpone for two years and six months the time when they would have to give the land up under the $1700 deed of trust, and to give them a further opportunity to find a purchaser and thus salvage some part of Cecilia’s interest in the land, see Duell v. Leslie, 207 Mo. 658, 106 S.W. 489, 492, 493; but if the conditions should not be met within the prescribed time limit, or at the end of the extension period, the redemption agreement was to be void and the sale to Louella would become final, upon failure of vendors to find a purchaser within the “redemption” period. The extraneous circumstances confirm this construction of the documents.

The $4000 note and deed of trust negatives the existence of a mortgagor-mortgagee relationship and is inconsistent with plaintiff’s theory. By the terms of that deed of trust Louella, representing herself as the owner of the farm, undertook to convey the same in trust, agreeing to pay all taxes, effect insurance on improvements and remove all mechanics’ liens. These are not the representations and undertakings ordinarily made by a mere mortgagee, and indicate the true nature of Louella’s status, as owner of the fee simple title.

(The fact that Exhibits “A” and “B” recite that Cecilia “is the owner in fee simple title” is not determinative, for Exhibit “A” goes on to recite that a warranty deed had been executed “transferring the title of said property” to Louella and it stands uncontradicted and fully acknowledged by all that such a transfer had been made. Nor does the fact that Exhibit “A” refers to “the two years allowed to redeem” and that Exhibit “B” refers to “the period of time for redemption” determine the question of mortgage vel non. The use of the word “redeem” or “.redemption” does not fix the nature of the instrument. These words have more than one meaning in law, and we interpret them in this context as signifying “to purchase back for another.” See Carson v. Lee, supra, 281 Mo. 166, 219 S.W., 1. c. 631, 632; 59 C.J.S. Mortgages § 10b. (3), p. 37, fn. 39.)

The fact that Louella, the grantee, took possession and assumed the management and control of the farm during the “redemption” period (albeit per Elmer) to the exclusion of Cecilia, the grantor, who did not continue in possession, is a circumstance tending to show that a sale and not a mortgage was intended. Cobb v. Day, 106 Mo. 278, 17 S.W. 323; Pahler v. Young, Mo.Sup., 232 S.W.2d 393, 395; 59 C.J.S. Mortgages § 44b., p. 80; 36 Am. Jur., § 157, p. 767. Payment of taxes by the grantee and not by the grantors, Carson v. Lee, supra, 219 S.W., 1. c. 633; Bobb v. Wolff, 148 Mo. 335, 49 S.W. 996; Ratermann v. Striegel, Mo.Sup., 273 S.W. 2d 304, 311; 59 C.J.S. Mortgages § 45, and the exercise by Louella of acts indicative of ownership, such as cropping the land and cutting the timber, without Cecilia setting up any claim of right or undertaking to redeem the property, Ratermann v. Striegel, supra, 273 S.W.2d, 1. c. 311, or attempting to effect a reconveyance after the expiration of the extension agreement, over the nineteen-year period from 1940 to 1959, 59 C.J.S. Mortgages § 46, and that in April, 1949 she transferred and conveyed the property to another by general warranty deed, all indicate that the warranty deed was not intended as a mortgage, but what it purports to be, an absolute conveyance.

By plaintiff’s own proof the transaction was intended as a conditional sale and not a mortgage. Upon the expiration of the extension agreement without Cecilia and Elmer having procured a purchaser and without having .repaid Louella the amount of her advances the condition was satisfied, the conveyance became absolute, and Cecilia had no further right, title or interest in the land. The court therefore was justified in dismissing plaintiff’s petition at the close of plaintiff’s case and we need not consider other impediments to her recovery such as limitations, laches and the requirement that a petitioner in equity do or offer to do equity.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Judge.

text:
    STATE of Missouri ex rel. Bettye L. JENKINS (nee Salmon), Relator, v. Lawrence L. BRADLEY, Probate Judge of Dunklin County, Missouri, Appellant.
    No. 49045.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.
    Powell & Jones, Dexter, for relator.
    McHaney, Billings & Welman, William H. Billings, Kennett, for Lawrence L. Bradley.
    Thompson Mitchell Douglas & Neill, James M. Douglas, Robert Neill, W. Stanley Walch, St. Louis, for Mercantile Trust Co., amici curiae.
    Bryan, Cave, McPheeters & McRoberts, Robert H. McRoberts, Marion S. Francis, St. Louis, for St. Louis Union Trust Co., amici curiae.
    Lewis, Rice, Tucker, Allen & Chubb, Charles C. Allen, Sr., Charles C. Allen, Jr., St. Louis, for Boatmen’s Nat. Bank of St. Louis, amici curiae.
    Charles C. Oliver, Jr., Kansas City, Rush H. Limbaugh, Cape Girardeau, Donald H. Chisholm, Kansas City, amici curiae.
   HYDE, Judge.

Relator filed petition in the Circuit Court of Dunklin County, on April 26, 1961, for a writ of mandamus to compel respondent, Probate Judge of Dunklin County, “to assume jurisdiction of the testamentary trust as provided under the Last Will and Testament of Helen L. Wilson, deceased, filed in the Probate Court of Dunklin County on November 16, 1956, under which Trust relator is one of the beneficiaries named therein.”

An alternative writ issued ordering that respondent “assume jurisdiction of said testamentary trust and proceed, in your capacity as Probate Judge, to exercise your discretion in such office and pass on all matters concerning or pertaining to the administration of said testamentary trust.” Respondent’s return stated “that Section 472.-020 of the 1955 Probate Code which purports to confer jurisdiction ‘of testamentary trusts’ upon Respondent is unconstitutional and void because jurisdiction of testamentary trusts is not included within the grant or scope of jurisdiction conferred upon Probate Courts by Article 5, Section 16, Constitution of Missouri of 1945; that the Legislature cannot enlarge or broaden the jurisdiction of the Probate Courts beyond that provided in Article 5, Section 16, Constitution of Missouri of 1945.” Respondent also stated that no procedural code had been provided for the exercise of jurisdiction over testamentary trusts by probate courts. The Court entered judgment ordering a peremptory writ and respondent has appealed. We have jurisdiction because of the constitutional question raised (Sec. 3, Art. V, Const., V.A.M.S.).

The only allegations concerning matters sought to be heard in the Probate Court of Dunklin County are thus stated in the following paragraph of the petition: “Relator has, prior to this date, presented her petition to the Probate Court of Dunk-lin County; she wishes to further petition the Probate Court of Dunklin County with regard to matters arising relative to and in connection with the administration of said testamentary trust, above referred to but the Probate Court of Dunklin County has failed to and now refuses to assume jurisdiction of said testamentary trust.” The record does not show what questions relator desired to present or what parties would be involved. It does not even show whether the administration of the original estate involved has been completed in Probate Court, whether there was a trustee appointed by the will and if so whether he accepted the trust, whether any administration of the trust has been commenced with assets in the possession of the trustee or if so whether there is any controversy about the administration of the trust or the authority of the trustee or any ambiguity in the trust provisions, or whether relator has been prejudiced in any way by the activity or inactivity of the trustee, if there is one in charge of the trust estate. Thus it appears both from the record and the briefs here filed that relator seeks by means of mandamus to obtain an advisory opinion about the constitutionality of Sec. 472.020 as an abstract proposition completely unrelated to any facts or specific situation. (Statutory citations are to RSMo and V.A.M.S.) “ ‘Constitutional questions are not to be dealt with abstractly” * * *. They will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.” Local No. 8-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373; see also State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75; Atchison v. Retirement Board of Police Retirement System of Kansas City, Mo.Sup., 343 S.W. 2d 25, 35. In this case, the Court was not asked to order and its writ does not order respondent to take jurisdiction of or decide any specific matter or issue connected with the administration of the trust involved.

In such an indefinite, abstract situation, we could not by mandamus order even a circuit court, which unquestionably has jurisdiction over trusts, “to assume jurisdiction of the testamentary trust” involved, or any other trust, without any factual basis, controversy or specific issue on which it could act. Except as provided in Secs. 456.210 and 456.220, the court could act only when its jurisdiction is invoked in some proceeding commenced by a proper party. For discussion of situations in which the equitable jurisdiction of circuit courts, in Missouri, may properly be so invoked see Appointment of Successor Trustees, Trust Administration and Settlements in Missouri, Over-street, 13 Mo.Law Review 255. Jurisdiction could be properly invoked by a trustee applying to the court “for instructions as to the administration of the trust if there is reasonable doubt as to his duties or powers as trustee” (Restatement of Trusts, Second, Sec. 259); or in some circumstances “to have the accounts of his administration of the trust examined and settled by the court.” (Restatement of Trusts, Second, Sec. 260; Scott on Trusts, Secs. 259-260; see also Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986, 990.) Jurisdiction also could be invoked by a beneficiary by equitable suit:

“(a) to compel the trustee to perform his duties as trustee;
“(b) to enjoin the trustee from committing a breach of trust;
“(c) to compel the trustee to redress a breach of trust;
“(d) to appoint a receiver to take possession of the trust property and administer the trust;
“(e) to remove the trustee.”

Restatement of Trusts, Second, Sec. 199; for legal remedies of beneficiary see Sec. 198; see also Scott on Trusts, Secs. 198— 198.3 and 199-199.4. However, “where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.” Restatement of Trusts, Second, Sec. 187; Scott on Trusts, Sec. 187-187.5.

Our decisions show that even our circuit courts are not generally authorized to supervise trusts in the way probate courts supervise the administration of decedent’s estates. (13 Mo.Law Rev. 263 et seq. See also Trusts — Judicial Supervision of the Administration of Trusts, 35 Mich.Law Rev. 479.) “There is no question, of course, as to such inherent jurisdiction of a court of equity, but it has been ruled in this State that although the- court has such abstract jurisdiction inherently, it can acquire jurisdiction in the concrete in a particular instance only when it is presented to the court as prescribed by law. We quote again with approval the general rule, subject to such exception as may be provided by statute: “The judicial power can be set in motion in civil matters only by some person — using the word in its broadest sense — -in a case against another person. The courts cannot, ex mero motu, set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. The parties, by their attorneys, make the record, and what is decided within the issue is res judicata; anything beyond is coram non judice and void.” Andrews’ Stephen’s Pleading (2d Ed.) p. 34.’ State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25, 29, 129 Am.St.Rep. 536.” Riggs v. Moise, 344 Mo. 177, 128 S.W.2d 632, 634, 635; see also Taylor v. Hughes, 363 Mo. 389, 251 S.W.2d 94, 102. In the Riggs case, we disapproved the too broad statement in State ex rel. and to the Use of Kenney v. Johnson, 229 Mo.App. 16, 68 S.W.2d 858, concerning the authority of circuit courts to supervise administration of trust estates. Even in an action for declaratory judgment “there must be a sufficiently complete state of facts presenting issues ripe for determination before a court may declare the law. ‘A mere difference of opinion or disagreement or argument on a legal question affords inadequate ground for invoking the judicial power.’ ” City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 413; see also State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176; Jacobs v. Leggett, Mo.Sup., 295 S.W. 2d 825, 834; M. F. A. Mutual Insurance Co. v. Hill, Mo.Sup., 320 S.W.2d 559, 564. We hold that there was not a sufficiently complete state of facts presenting issues ripe for determination in this case to authorize the peremptory writ of mandamus ordered.

The judgment is reversed.

All concur.


author: STORCKMAN, Judge.

text:
    Charles A. PETTUS, Appellant, v. A. R. CASEY, d/b/a Casey Hardware Co., Respondent.
    No. 48739.
    Supreme Court of Missouri, Division Number 2.
    June 11, 1962.

      Derrick & Holderle, Tyree C. Derrick, St. Louis, Robert A. Mcllrath, Flat River, for appellant.
    Roberts & Roberts, J. Richard Roberts Farmington, Dearing, Richeson & Weier, Hillsboro, for respondent.
   STORCKMAN, Judge.

The plaintiff obtained a verdict and judgment of $25,000 for personal injuries alleged to have been received as the result of a collision of motor vehicles. The defendant’s motion for new trial was sustained and the plaintiff appealed.

In ruling the motion for new trial, the trial court failed to specify of record the grounds upon which the new trial was granted. S.Ct.Rule 83.06(b), V.A.M.R. Nevertheless, the appellant did not serve on the respondent the statement provided by the rule which would have required the respondent to file the first brief and to assume from the beginning the burden of supporting the trial court’s action. The rule provides that such statement shall be served “on or before the time required for filing the transcript on appeal.” Instead, the appellant filed the original brief which was devoted to establishing the procedures which are plainly provided by the supreme court rule. The respondent in his brief specified two instances in which he claimed the trial court erred in admitting evidence over his objection. The appellant then filed the reply brief. The appellant’s failure to file the statement provided by the rule resulted in his filing an unnecessary brief. It deprived the defendant of his right to file the reply brief. The court is in effect deprived of the benefit of any reply brief. In the circumstances of this case, however, we are not called upon to decide what, if any, effect such failure has upon the burden imposed by the rule and we do not do so. We mention the matter as a caveat that the rule should be followed for the benefit of all concerned.

Because of the limited issues presented on appeal, it will not be necessary to make an extensive statement of the facts. The plaintiff lived in Desloge, Missouri, and was employed as a hoisting engineer by the Mera-mec Mining Company at one of its mines northwest of Potosí. He traveled by automobile to and from work each day. On September 9, 1958, the plaintiff, accompanied by a fellow workman, was driving his automobile eastward on Highway 8 when he encountered a school bus headed westward and stopped on the highway to pick up school children. The crest of a hill was a short distance west of where the bus was stopped. The plaintiff brought his automobile to a stop on the south half of the highway with its front end about three or four feet west of the front end of the bus. The plaintiff’s automobile had been stopped in this position for at least thirty seconds when it was struck from the rear by the defendant’s truck being operated by defendant’s employee, Ernest Walton, eastwardly on Highway 8 and was knocked eastwardly a distance of about thirty-five feet. The plaintiff testified that as a result of the collision his head was thrown backward and forward in a whiplash fashion and that he has suffered from pains in the back, neck and head, and some atrophy and pain in the left arm and leg. The defendant’s liability, as well as the nature and extent of plaintiff’s injuries, were disputed.

The defendant’s first contention is that the trial court committed prejudicial error in allowing the plaintiff to read into evidence as a part of plaintiff’s case portions of the deposition of Ernest Walton, the defendant’s truck driver, who was in the courtroom at the time but was not called as a witness. The plaintiff offered parts of the deposition as “statements against interest”. The defendant objected but the court permitted parts selected by the plaintiff to be read to the jury. In general the portions read tended to prove that the witness Walton was employed by the defendant and was driving the truck delivering “bottle gas” at the time of the accident; that he did not see the plaintiff’s automobile until he “tipped over the hill” at which time it was 100 or perhaps 150 feet down the road; that he was driving 40 to 45 miles an hour and could see the top of the school bus before he saw the plaintiff’s automobile; that he applied his brakes and skidded 75 to 80 feet before striking the plaintiff’s automobile from the rear. At the conclusion of the reading of the statements from the deposition, the defendant moved that the evidence be stricken which motion was denied. The defendant then moved for a mistrial on the ground the admission of the evidence was erroneous and prejudicial. This motion was also denied. Although Mr. Walton was in the courtroom, he was not offered as a witness by either the plaintiff or the defendant. Nothing further was offered from the deposition by either party.

As a general rule, a deposition cannot be read in evidence where the deponent is present in court except to impeach his testimony as a witness or as an admission against interest. Winegar v. Chicago, B. & Q. R. Co., Mo.App., 163 S.W.2d 357, 367 [11]; Wilt v. Moody, Mo., 254 S.W.2d 15, 18[2]; Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S.W. 458, 465. Since Mr. Walton did not testify at the trial, the evidence was not admissible for impeachment purposes. In fact it was not offered o» that theory.

The excerpts from the deposition of Mr. Walton were not competent as admissions against interest because the deponent was not a party to the action nor was he in privity with any party to the action. Roush v. Alkire Truck Lines, Mo., 299 S.W.2d 518, 520-521. There was no attempt to justify the reading of the deposition for any of the reasons specified in S.Ct.Rule 57.29, V.A.M.R. Clearly, the court erred in permitting the depositional statements to be read in evidence.

The plaintiff chiefly relies upon his contention that defendant was not prejudiced by the admission of the evidence because (a) the facts were already in evidence and were not disputed, (b) the verdict and judgment were for the right party, and (c) the defendant ratified the evidence because he adopted and relied upon it as a basis of his verdict-directing instruction. It is true that the plaintiff, his passenger, Vernon Limball, and the bus driver, Dave Evans, had previously testified concerning the same general subject matter covered by the excerpts from the deposition. Mr. Limball testified that the plaintiff’s automobile was within two or three-car lengths of the bus when he first saw it, and that the plaintiff had to bring his automobile to a sudden stop. The plaintiff had testified that he had stopped his automobile three or four feet from the front of the school bus and the distance from the crest of the hill on the west to where his car was struck was about 100 feet. The testimony of these witnesses alone was a sufficient basis for the defendant’s verdict-directing instruction. It cannot be said that the defendant adopted, relied on, or ratified the evidence from the Walton deposition.

Even though there had been no contrary evidence, the burden was upon the plaintiff to prove his case, and the jury could believe or disbelieve the plaintiff’s evidence although it was not disputed. The plaintiff’s contention further assumes that, if the defendant had had the opportunity to cross-examine as a live witness, he would not have been able to develop any facts or circumstances favorable to his case. It is conceivable that Walton’s testimony would have had a different connotation than appeared from the isolated excerpts if the defendant’s truck driver had been interrogated on such matters as the weight of his load and his ability to stop his truck, taking into consideration that the distance in which he had to stop was the length of plaintiff’s car shorter than the distance in which the plaintiff had to stop. Also the fact that Walton was or had been the defendant’s employee might very well have given his statements greater weight from the jury’s standpoint, and by using the deposition the plaintiff was able to select the passages most favorable to him thereby obtaining a definite advantage. We cannot agree that the Walton statements added nothing by way of scope or weight to the evidence already in the case.

The plaintiff urges that the burden is upon the defendant to show that the trial court sustained the motion on some nondis-cretionary ground, citing S.Ct.Rule 83.06 and § 510.330, RSMo 1959, V.A.M.S., and cases adjudicated pursuant thereto; and that under § 512.160 an appellate court shall not reverse a judgment unless the court believes that error was committed which materially affected the merits of the action. Also under this point the plaintiff cites fifteen additional cases dealing with situations in which errors in the admission of evidence have been held harmless on the theory that the evidence was merely cumulative or was unnecessary to the issues and innocuous for where the verdict and judgment were for the right party, or the judgment was the only one that could stand as a matter of law. We have read all of these cases and find them not controlling or helpful in the circumstances of this case. On the record before us, we cannot say as a matter of law that no other verdict could stand.

As a general rule, the introduction of a deposition or a part thereof by a party for any purpose other than contradiction or impeachment makes the deponent the witness of the party introducing the deposition. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 809 [13].

The right to cross-examine a witness who has testified for the adverse party is absolute and not a mere privilege. Houfburg v. Kansas City Stock Yards Co. of Maine, Mo., 283 S.W.2d 539, 548 [21]; State v. Laspy, Mo., 298 S.W.2d 357, 359 [1]; 98 C.J.S. Witnesses § 368, p. 114. The right of a party to test by cross-examination the veracity and accuracy of the person making the statement offered in evidence is the principal reason for the hearsay rule. Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781 [2]; State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209 [6],

A trial court may properly exercise its discretion as to the scope and extent of cross-examination, but it is not within the court’s discretion to prevent cross-examination entirely. State v. Thompson, Mo., 280 S.W.2d 838, 841 [6]; Gurley v. St. Louis Transit Co., Mo.App., 259 S.W. 895, 898 [5]. The admission in evidence of the depositional statements of Walton when he was in the courtroom had the effect of denying and preventing the cross-examination of the witness to which the defendant was entitled as a matter of right. For this reason, if no other, the error was prejudicial and justified the grant of a new trial.

The defendant’s second assignment of error was that the court erred in allowing the plaintiff to elicit testimony that the accident in question aggravated a pre-existing arthritic condition when such condition and its aggravation had not been pleaded. Since we have decided that the grant of the new trial was justified on another ground, we will not undertake the futile and unnecessary act of deciding the second ground urged. The matter complained of may easily be avoided in connection with a retrial.

Because the trial court committed prejudicial error in admitting in evidence excerpts from the deposition of the truck driver Walton, the order granting a new trial is affirmed and the cause remanded.

All of the Judges concur.


author: WESTHUES, Judge.

text:
    STATE of Missouri, Respondent, v. Ronald Lee SANDERS, Appellant.
    No. 48920.
    Supreme Court of Missouri. Division No. 1.
    June 11, 1962.

      G. W. Marsalek, Burton H. Shostak, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Frank P. Motherway, Special Asst. Atty. Gen., Jefferson City, for respondent.
   WESTHUES, Judge.

Defendant Ronald Lee Sanders was, in the Circuit Court of the City of St. Louis, convicted by a jury verdict on a charge of an assault with intent to rob with malice aforethought. A previous conviction was alleged and proven. The trial court assessed Sanders’ punishment at imprisonment in the State Penitentiary for a term of twenty years. An appeal was taken to this court. Sanders was represented by court-appointed counsel who filed a motion for new trial and also briefed and argued the case here on appeal.

Defendant did not offer any evidence. The State’s evidence justifies the following statement: Gilbert Layton operated a tavern and confectionery at 1901 Benton, St. Louis, Missouri. On January 27, 1961, at about 10:30 p. m., five people were in the place of business, among whom were Rhonda Thompson, a small girl, and a man named James Simon. Layton was there conducting the business. About this time, the defendant and a man named Cook entered the tavern. After looking about, defendant Sanders purchased a bag of potato chips and Cook went to a telephone booth. When Cook left the telephone booth, he announced that this was a “stick up” or “hold up.” Sanders made a similar statement and with a pistol in his left hand threatened to shoot the little girl Rhonda unless all present would go to a back room. No one present went to the back room and after some maneuvering, James Simon and Cook entered into an altercation, — whereupon Cook ran for the door and Simon followed him to the street. Sanders ordered Layton to lie down which Layton refused to do. Finally, Sanders moved toward the front door, still holding the pistol in his left hand. About that time, Layton threw a bottle at Sanders and Sanders shot at Layton. The bullet lodged in Layton’s arm. He was taken to a hospital where the bullet was removed and turned over to the police department. While Layton was at the hospital (January 30, 1961), Sanders and Cook were arrested. Sanders was identified at the hospital by Layton as the man who had fired the shot. One Collins, arrested on some charge not here material, took a police officer to a place where a weapon was found. A ballistics expert testified that the bullet taken from Lay-ton’s arm had been fired from the pistol which was found by the police with the aid of Collins. At the trial, Layton, as well as others who were present at Layton’s place on the night in question, identified Sanders as being the man who had a snub-nosed pistol and who threatened to shoot Rhonda Thompson if those present disobeyed his orders.

The points briefed by the defendant are, in substance, that the trial court erred in permitting two witnesses to testify whose names had not been previously endorsed on the information; further that the evidence of these two witnesses tended to prove the commission of a different and separate crime and therefore should not have been admitted; that the court erred in admitting into evidence a photograph of the defendant taken in a police “line up”; that this amounted to compelling the defendant to testify against himself; that the court erred in giving an instruction on reasonable doubt because the instruction lessened the State’s burden of proof; that an instruction informing the jury that a severance had been granted was erroneous because it did not inform the jury how Cook, the co-defendant, had pleaded to the charge; that the court erred in permitting the State’s attorney, in his argument to the jury, to make statements that defendant may have used dye to color his hair.

We shall dispose of the points in the order stated. The matter of endorsing the names of two witnesses on the information came about in the following way: Sanders was charged in six separate cases. On March 9, 1961, Woodruff Marsalek was appointed as attorney for the defendant in all six cases. The present trial began on May 1, 1961. Marsalek was notified that the names of Vernon and Edna McDonald would be endorsed as witnesses. Through some mistake in the clerk’s office, the number of the case stated in the notice was another of the six cases against Sanders but not the one involving the offense now before us. This mistake was discovered on the day before the evidence was introduced before the jury. The court, after a hearing, permitted the witnesses to testify and overruled defendant’s objection. The court then commented that the error in numbering the case on the notice was an oversight and that defendant’s counsel had notice that the two witnesses were to be used in a Sanders case. Further, the court noted that the Daily Record carried the item of the endorsement of the names on the information a number of days before the trial.

In view of the circumstances, the trial court’s ruling was not an abuse of discretion. The record does not show any prejudice to the rights of the defendant. The prosecuting officials in good faith attempted to comply with S.Ct. Rule 24.17, V.A.M.R. State v. Thost, Mo., 328 S.W.2d 36, l. c. 38 (4); State v. Churchill, Mo., 299 S.W.2d 475, l. c. 478 (10, 11); State v. Lindsey, Mo., 80 S.W.2d 123, l. c. 126(7-9).

In connection with the objection to the endorsement of the names of the McDon-alds on the information, the defendant urges that the evidence of these two witnesses was superfluous to identify the defendant as the person committing the crime at Layton’s tavern; further, that the evidence “was violently prejudicial to defendant’s right to a fair and impartial trial.” Suffice to say, as to the point that the evidence was not needed to identify the defendant, there was a dispute as to identity. Defendant’s attorney cross-examined a number of State witnesses in an attempt to show that the identification was not positive. Note counsel’s statement in the argument of the brief on another point where he said, “The error in permitting the argument was extremely prejudicial because the identity of defendant was disputed. The argument, casting the insinuation that defendant had changed the color of his hair, could only prejudice the jury against defendant.”

The second point, that the evidence was prejudicial to the rights of the defendant because it tended to prove a separate crime, is without merit. Identity of the defendant was in dispute and, as indicated in the statement of facts, the bullet taken from Layton was shown to have been fired from a pistol not in the defendant’s possession when he was arrested. Mr. McDonald’s evidence was that he saw Sanders, the defendant, have the same pistol in his left hand on the night of January 28 which was the day after the attempted robbery. There was no evidence as to what Sanders was doing with the pistol. If, as defendant contends, such evidence tended to show that he was using the pistol for the purpose of committing a crime, the evidence was nevertheless admissible to show identity, even if such evidence tended to prove another and separate offense to have been committed. Such is the established rule of law. State v. Hawley, Mo., 51 S.W.2d 77, l. c. 78(4, 5), and cases there cited. See also 22A C.J.S. Criminal Law § 684, pp. 756-760.

There was much made during the trial over the hairdo and color of defendant’s hair. Witnesses described it as being long and light blond or dark or light orange or red in color on the night of January 27, while at the time of trial, defendant had a crew cut. A photograph of the defendant taken on January 30, after his arrest, was introduced in evidence. This photograph showed Sanders’ hair to he long. Witnesses testified that Sanders’ hair, as shown by the photograph, appeared the same as on the night of January 27. Defendant claims that the trial court erred in admitting this photograph in evidence. It is claimed that by the use of the photograph the defendant was compelled to give evidence against himself. There is no merit in this contention. The use of photographs in such circumstances has been generally approved. State v. Childers, Mo., 313 S.W.2d 728, l. c. 731 (5); State v. Armstrong, 61 N.M. 258, 298 P.2d 941, l. c. 942(4, 5); State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743, 1. c. 744(1).

Defendant assigned error to the giving of instruction No. 4. This instruction, among other matters, informed the jury that to convict the defendant, the State was required to prove his guilt beyond a reasonable doubt. The portion objected to by the defendant reads: “If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.” The particular objection made is that the clause “but a doubt to authorize an acquittal on that ground ought to be a substantial doubt.” It is stated that this clause lessened the State’s burden of proof. Defendant cited the case of City of St. Louis v. James Braudis Coal Co., Mo.App., 137 S.W.2d 668, as authority. That case is not in point. No such instruction was there considered. The instruction as given was approved by this court in the case of State v. Vel anti, Mo., 331 S.W.2d 542, l. c. 545(4), where the exact point now under consideration was discussed and decided against the defendant’s contention.

The defendant states that the trial court erred in the giving of an instruction which infoimed the jury that Sanders and one Gerald Henry Cook were charged with the offense in question and that a severance had been granted and that Sanders alone was on trial; that “He pleads not guilty.” Complaint is made that the instruction did not inform the jury how Sanders would have pleaded if he had been charged with a lesser offense, that is, an “intent to rob without malice.” Defendant says that the trial court having instructed on the lesser crime raised in the jurors’ minds an inference that defendant had not pleaded “not guilty” to the lesser charge. Further complaint is made that the instruction did not inform the jury how Cook pleaded. We are of the opinion that the instruction, as given, was not prejudicial to defendant’s rights. The cases of State v. Castino, Mo., 264 S.W.2d 372, 373, and State v. Deppe, Mo., 286 S.W. 2d 776, are cited by the defendant. The instruction in the case before us is substantially the same as the one considered in the case of State v. Deppe, 286 S.W.2d l. c. 780 (7). In that opinion, the Castino case, supra, was mentioned and it was held that in the Castino case the trial court improperly informed the jury how a co-defendant had pleaded to the charge. It was further held, in the Deppe opinion, that the instruction, as given in the Deppe case, was proper. We approve that ruling. There is no merit in the contention that the instruction as given in the case before us would tend to confuse a jury as to how a defendant might have pleaded to a lesser charge. Whether a trial court must instruct on a lesser offense is not generally determined until after the evidence has been introduced. There is no duty on the part of the court or on the State to grant to a defendant an opportunity to plead to a lesser offense. The State may elect to ask a jury for a conviction on the greater crime as charged in the information.

Finally, the defendant says that the argument of the prosecuting attorney to the jurors, telling them that the defendant might have dyed his hair, should not have been permitted. In view of the conflict in the evidence as to the length and color of the defendant’s hair, it was legitimate for the prosecutor to draw the inference that dye may have been used.

We have disposed of all the points briefed and have examined such matters as are required by S.Ct. Rule 28.02. We have found no prejudicial error therein. The information in this case was filed under Sec. 559.180, V.A.M.S. See State v. Washington, Mo., 357 S.W.2d 92, which held a similiar information sufficient.

The judgment is affirmed.

All concur.