text:
    STATE of Missouri, Appellant, v. Robert MACE, Respondent.
    No. 49189.
    Supreme Court of Missouri. Division No. 1.
    June 11, 1962.

      Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., Jefferson City, for appellant.
    Richard W. Mason, St. Joseph, for re- -) spondent.
   HOLLINGSWORTH, Judge.

This is an appeal by the State of Missouri from an order quashing an information filed by the Prosecuting Attorney of Buchanan County on May 1, 1961, the charging portion of which was:

“ * * * that between the dates of September 1st, 1960 and December 15, 1960, Robert Mace did wilfully and fe-loniously steal automobile tires of a value in excess of Fifty dollars ($50.00) lawful money of these United States from the General Tire Store at 1700 Frederick Avenue, St. Joseph, Missouri, the property of the General Tire Store of St. Joseph, Inc., a corporation, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.”

On May 15, 1961, defendant was arraigned, at which time his counsel orally moved to dismiss the information on grounds it failed to specify the date on which the offense charged was alleged to have been committed. Upon denial of the motion, defendant stood mute, whereupon the court ordered entry of a plea of not guilty, and a pre-trial conference was set for June 12, 1961. On May 29, 1961, defendant, however, filed written motion to quash on grounds the information did not specify the date or dates on which the offense was allegedly committed; that it in effect charged the commission of several offenses without alleging the time and place of each offense so charged; that it was indefinite and uncertain; and that it was, therefore, impossible to defend such charge or charges. Hearing of that motion was held in abeyance. Thereafter, on June 28, 1961, defendant filed motion to make the information more definite and certain on grounds: (1) “that plaintiff should be required to state the exact date or dates on which said automobile tires were stolen”; (2) “that plaintiff should be required to state the number' and kind of automobile tires stolen”; and (3) “that plaintiff should be required to state the specific value of each automobile-tire stolen.” Thereafter, on October 23,. 1961, the motion to make more definite and certain was sustained and the State was-granted 15 days in which to file an amended information. The State failed and refused to comply with that order or attempt in any manner to justify its refusal to do so. On November 10, 1961, the motion to quash, which had been held in abeyance, was sustained, defendant was ordered discharged and the costs were taxed against the State, from which order the State perfected its appeal to this court. See S.Ct. Rule 28.04, V.A.M.R.; State v. Terrell, Mo., 303 S.W.2d 26.

Defendant does not in this court assert that the information fails to charge him with a criminal offense. It is evident that it does. Sections 560.156, 560.161, RS Mo 1959, V.A.M.S. (to which revision all statutory references are made unless otherwise indicated). But that fact does not dispose of the question here presented: Does the information inform defendant of the particulars of the offense sufficiently to prepare his defense?

When the Legislature (Laws 1955, p. 507, §§ 560.156, 560.161), for reasons well known to all attorneys familiar with criminal procedure, repealed the multitude of confusing statutes dealing with the many grades and differing definitions, distinctions and penalties fixed for the crimes of larceny, embezzlement, and the fraudulent appropriation of the property of another, and in lieu thereof abolished the theretofore technically described distinctions between those offenses and placed all of them within the general term of “stealing”, its purpose and intent were to avoid the many reversals of cases based upon technical grounds. But these statutes do not and could not constitutionally do away with the right of the accused to demand the nature and cause of the accusation made against him. Article I, § 18(a), Constitution of Missouri, V.A.M.S. The requirements of an indictment or information have been thus well stated: “First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether -they are sufficient in law to support a conviction, if one should he had.” United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 574, 31 L.Ed. 516. See also United States v. Callanan, 1953, (U.S.D.C., Mo.) 113 F.Supp. 766.

Does the offense of which defendant is here charged refer to a single act of grand larceny or a series of larcenies (grand or petit), as defined at common law, or does it charge him with one or a series of acts which, in essence, come within the meaning of embezzlement as defined in any of our former statutes? Even the brief of counsel for the State does not attempt to advise the court of the basic elements of the offense or offenses the information here questioned does or may include. It intimates that the crime of defendant as charged is essentially embezzlement. One of the statements in the brief reflects, however, the insufficiency of the information to advise defendant of the nature of the offense with which he is charged. That statement says: “Therefore, we submit that, whether the instant case involves a situation of ‘embezzlement’ under the old law or not — the record is not clear on this — the State should certainly not be required to plead more under the new statutes than was requisite under the old.”

The matter is of vital importance to defendant. He, of course, is presumably innocent and is not therefore chargeable with knowledge of the details of the crime with which he is charged. If, for example, the offense of which he, in effect, is charged is embezzlement, as distinguished from common law larceny, then time may not be the essence of the offense and the total amount “stolen” by any series of such acts might be taken as the total value of the property taken and subject him. to the penalties now prescribed for the “stealing” of property of a value of more than $50.00. Prior to the changes made in the law in 1955, it was held that the crime of embezzlement may be a continuing offense, as where the accused lawfully came into the possession of money or property of another at different times, and thereafter criminally did “steal” it (as that term is now defined in §§ 560.156 and 560.161) from time to time in amounts eventually totaling the sum charged in the indictment. But even under a charge of that kind, although the State failed to prove the embezzlement of the whole sum, yet if it could show the embezzlement of a portion thereof, the charge would still be good. Tucker v. Kaiser, Mo., 176 S.W.2d 622, 625; State v. Adams, 355 Mo. 1186, 200 S.W.2d 75, 78[1]; State v. Roussin, 354 Mo. 522, 189 S.W.2d 983, 985; State v. Lomax, 322 Mo. 86, 14 S.W.2d 436, 438 ; 29 C.J.S. Embezzlement § 37c, p. 727. On the other hand, if the alleged “stealing” of tires of a total value of more than $50.00 consists of a series of separate larcenous “stealing” of tires, each larcenous theft being of a tire or tires of a value of less than $50.00, then the offense constitutes a series of misdemeanors (unless there was a preconceived plan to commit grand “stealing” by a series of separate asportations of property of less than $50.-00 value).

Supreme Court Rule 24.03 (based upon Federal Rule 7(f), 18 U.S.C.A., p. 176) provides:

“When an indictment or information alleges the essential facts constituting the offense charged hut fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars. A motion for a bill of particulars may be made only within ten days after arraignment and before the trial commences or at such other time before or after arraignment as may be prescribed by rule or order of the court. A bill of particulars may be amended at any time subject to such conditions as justice requires.” (Emphasis supplied.)

We are not unmindful of the fact that the defendant did not literally comply with S.Ct. Rule 24.03 prescribing the requisites of the filing of a bill of particulars within the time fixed by the rule, yet the “motion to make more definite and certain” was treated by the parties and by the court as though it had been timely filed and as though its function was essentially an application for a bill of particulars. For the purpose of this opinion, we think we may so treat it.

In State v. Cox, Mo., 352 S.W.2d 665, 672, this court said: “Generally, a bill of particulars may be required where it is necessary to enable the defendant to prepare adequately for trial or where it is necessary to constitute a bar to a subsequent prosecution. S.Ct. Rule 24.03. The motion for a bill of particulars is.addressed to the sound discretion of the trial court and its ruling thereon should not be disturbed in the absence of an abuse of such discretion. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545. No abuse of discretion appears on the record.” It is evident that the trial court in the instant case was of the opinion that the information failed to inform the defendant of the particular offense sufficiently to prepare his defense. The record does not advise us of the precise reason or reasons upon which the court based its finding of the insufficiency of the information, but we are forced to the conclusion that the result was correct and, for the reasons hereinabove stated, we have concluded that the judgment quashing the information should be affirmed.

Of course, the State, if it so elects, may file a new information, which, if sufficient in form, will obviate the necessity of the filing of a bill of particulars. If, however, defendant deems such an information still insufficient, he may file an application for such a bill in the form and within the time and for the purposes prescribed by S.Ct. Rule 24.03. In this connection, w'e think it proper to suggest, however, that the bill of particulars authorized by S.Ct. Rule 24.03 is not to be used for the purpose of making the State reveal the details of the evidence upon which it seeks to establish its case. The function of such a bill is limited to that of informing the defendant of the particulars of the offense sufficiently to prepare his defense.

In the instant case, there is as yet nothing in the record to show whether the State has or could obtain knowledge of the precise dates on which the tires or any of them were allegedly larcenously “stolen” or whether in fact it would be necessary to defendant’s defense that the precise dates be alleged if the offense is basically embezzlement; or in whose possession or custody the tires were when “stolen”, whether such possession or custody was that of the owner or of the defendant as bailee, trustee or otherwise; or any other essential fact or facts which, upon hearing, may be found necessary to inform defendant of the particulars sufficient to enable him to prepare his defense.

The bill of particulars authorized by S.Ct. Rule 24.03 is taken from Fed.Rule 7(f), U.S.C.A., Title 18, p. 176 et seq. The decisions therein cited shed much light upon the purpose of and extent to which a bill of particulars may or may not be used. See also Barron and Holtzoff, Federal Practice and Procedure, § 1917, and pocket parts; State v. Zammar, Mo., 305 S.W.2d 441, 445; and the several authoritative references therein mentioned. A reading of these decisions may be of profit to the parties in pleading and the court in determining any such issues as may arise in this cause.

The judgment is affirmed.

All concur.

      . Whether these cases are still controlling under the new statutes (§§ 560.156, 560.-161), in which all of the aforementioned crimes are designated by the one general word of “steal”, is not before us under the present record.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. George BURTON, Appellant.
    No. 48998.
    Supreme Court of Missouri, Division No. 2.
    June 11, 1962.
    Robert P. Stanislaw, St. JLouis, Missouri, for appellant.
    Thomas F. Eagleton, Atty. Gen., William L. Hungate, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

George Burton and Willie Cox were found guilty by a jury of attempted burglary in the second degree. Both were charged and tried under the habitual criminal act. The trial court assessed Burton’s punishment at imprisonment for a term of five years, and he alone has appealed. He contends that the evidence was insufficient to authorize a finding by the jury that he was guilty of the offense charged, and that the trial court erred in refusing to grant his motion for judgment of acquittal. A detailed statement of the evidence is required.

John Baliva operated a grocery store and meat market, referred to as Johnny’s Market, at 1501 Franklin Street (the corner of Franklin and Fifteenth Streets) in the City of St. Louis. On Friday evening, March 24, 1961, about 8:30 o’clock, Willie Cox entered the store and purchased some food. Mr. Baliva then offered to let him have an apartment over the store rent free if Willie would help him clean the store the following Sunday. Willie replied, “It’s a deal,” and they shook hands. Willie then told Mr. Baliva that “he heard Thursday night * * two fellows were going to bump [Mr. Baliva] off,” which, according to Mr. Baliva, meant that the store was to be broken into or burglarized. At 10:30 o’clock that night Mr. Baliva closed his store and locked the front door with two padlocks. At 10:50 o’clock or about twenty minutes later, pursuant to a radio call, police officers Walter Allen and Earl Doyle drove in a police “cruiser” to 1501 Franklin. As they approached they saw appellant, Willie Cox and William Smith standing in front of Johnny’s Market about five to seven feet east of the front door. The men remained there “milling around” until the police officers arrived. At the same time police officer Richard Limpert was approaching on foot, and he saw one of the three men, later identified as William Smith, throw a hunting knife into the street which the police officer recovered. Officer Allen examined the front door of Johnny’s Market and found “marks on the door like slug marks * * * and one lock was off the hasp.” The hasp was “pulled loose” and “just hanging there.” The other lock was still on the door but it "looked like someone had been tampering around with it, it had marks dug into the wood around it;” the “wood around the hasp was chewed out.” According to one police officer the door had been “jimmied.” The missing lock was found nearby in Fifteenth Street. The police officers placed appellant and his two companions under arrest.

Appellant’s pink and white two-door Ford automobile was parked in front of Johnny’s Market. In the back seat of the automobile on the floor the officers found a hammer, a tire tool and a lug wrench which were designed to be used for removing hub caps, tightening lugs and .removing tires.

Officer Limpert obtained some “paint samples” in the form of paint “scrapings” or “shavings” consisting of both wood and paint from the floor directly below the door of Johnny’s Market. Fie also obtained a sliver of painted wood from the door. A “finger print expert” for the police department examined the front door of Johnny’s Market with “dusting powder” but found no prints of any value. He did not attempt to “lift” finger prints from the tire tools or from the padlock which was found in the street.

After appellant and his companions were taken to the police station their trousers were examined by police officer Frank Grosse, a qualified chemist. He “processed” appellant’s clothing for “superficial debris,” removed all “foreign matter,” and divided it into three groups: glass, paint chips, and all debris except paint chips and glass. Two paint chips were found on appellant’s trousers. Each was smaller than a pinhead and with the naked eye one could not tell what they were. On the.trousers of Willie Cox he found two paint chips but no glass. Officer Grosse mounted a paint chip found on appellant’s trousers and a paint chip taken from the area of the front door of Johnny’s Market on separate pinheads beneath the eye pieces of a twenty-power comparison microscope. A colored photograph of the two chips was then taken, and the picture was shown to the jury by use of a projector and screen. Officer Grosse testified that the sequence of the layers of paint on the chip taken from appellant’s trousers was “maroon or red over green, over white, and I think green repeated,” and that there was an “agreement in the coloring of the layers” of paint in the two chips. He expressed the opinion that the chips “very likely came from the same source” and that it was a “very remote possibility” that they came from different sources. The two chips of paint found on the trousers of Willie Cox had only two layers of paint, apparently because the chips were not deep enough, hut in their limited showing they also corresponded with the paint chips from the door of Johnny’s Market. Officer Grosse also examined the paint on the tire tools but he stated that while the paint smears on the tools “agreed as to color” and they “looked like the same” he “could not correlate that paint with paint taken from the scene,” and the paint on the tools did not match the “debris or chippings from the scene.” He also stated that it was “possible” that the paint on the tools came from an automobile. On the hunting knife there was “quite a concentration of green paint” which “matched” and “seemed to agree” with the green paint on the chips taken from the door of Johnny’s Market.

Willie Cox did not testify, but appellant testified in his own behalf. He stated that he was employed by “Big Bill” Dukey who had a place of business on Franklin Avenue between Fifteenth and Sixteenth' Streets, and that on the day he was arrested he had been wrecking a red ice cream truck, and in doing so he used a hammer, crowbar, torch, and the tire tools found in the back seat of his automobile. He testified that after completing that work he returned to his employer’s place of business on Franklin Avenue about 8:00 o’clock in the evening. He went to Willie Cox’s house at 1621 Franklin Avenue and then went to Johnny’s Market to buy food. He saw Cox talk to John Baliva while there. After dinner he and Willie purchased some wine and were drinking it in front of a liquor store on Franklin Avenue between Fifteenth and Sixteenth Streets when William Smith joined them. Appellant then drove to Fifteenth and Franklin to meet his wife. He parked his automobile “around the corner” on Fifteenth Street and the three of them sat in the automobile drinking wine and listening to the radio. After they had drunk all of their wine, William Smith went to get another bottle. While he was gone appellant moved his automobile around on Franklin Street a “little north of the call box,” which is the place the automobile was parked when the police arrived. Five or six minutes after he parked on Franklin Street, Willie’s sister came up to the car and she and Willie stood on the corner and talked about ten minutes. Appellant then got out of the car and asked, “What is wrong with Smitty, he ain’t come back with the wine?” Smith soon arrived with the wine and the three “started drinking.” Appellant looked down the street and saw the “cruiser” coming and he took the last drink of wine and “sat the bottle down to the curb.” The police officers testified that they saw no bottle there, but that they did detect the odor of alcohol on appellant and Willie Cox. Appellant denied that he pried the padlocks loose on the door of Johnny’s Market, and he stated he did not know how the paint chips got on his trousers.

Where the evidence of a defendant’s participation in the offense charged is circumstantial, as it is in this case, “the facts and circumstances relied upon by the State to establish guilt must not only be consistent with each other, and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every .reasonable hypothesis of innocence.” State v. Brown, Mo., 291 S.W.2d 615, 619—620; State v. Whitaker, Mo., 275 S.W.2d 316, 320. In ruling the sufficiency of the evidence to support a verdict of guilty, however, even where the evidence is wholly circumstantial, all of the evidence tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged. State v. Brown, supra at p. 620; State v. Murphy, 356 Mo. 110, 201 S.W.2d 280.

When we so consider the evidence we accept as true that Mr. Baliva left his store and locked it at 10:30 o’clock, and that approximately twenty minutes later the police arrived and found appellant and his companions there. We also accept as true that appellant had his automobile in front of Johnny’s Market about fifteen or sixteen minués before the time that William Smith returned with the second bottle of wine, and that thereafter appellant and his companions drank the wine before the police arrived, which of course took at least several additional minutes. From the amount of work necessary to remove one lock from the door and to pry loose the other, it is a reasonable inference that it would have been impossible for someone else to have done all this after Mr. Baliva left the store and before appellant admits that he parked his automobile in front of the store. Yet, when appellant testified, he did not claim that any one else was at the front door of Johnny’s Market while he was sitting in his automobile in front of it, and in view of the amount of light shown by the evidence and the nearness of the automobile to the door appellant could not possibly have failed to see a person attempting to open the door if in fact someone other than appellant and his companions was trying to do so.

Appellant admits in his brief that “without a doubt the chip [of paint] on his trousers came from the market door.” He argues, however, that the principal question is how the chips of paint got on his trousers. He points out that Officer Lim-pert gathered up paint chips from in front of the door, that he then searched appellant and Willie Cox but not William Smith and rode to the police station with all the persons arrested and handled their trousers at the station. Officer Grosse testified that a paint chip as small as those found on appellant’s trousers would “likely” stick to the skin of anyone touching it, and based on this appellant argues that it is as reasonable to assume that the paint chips got on appellant’s trousers from Officer Lim-pert’s hands as it is to assume they were deposited there while he was attempting to open the door to the market. If this one circumstance was the only one to be considered, it might be said that there is some merit to the contention. But in addition, there is the circumstance of appellant’s presence, previously discussed, and the circumstance of the hunting knife which had paint on it which “matched” and “seemed to agree” with the paint on the door. In addition, William Smith was seen to have thrown the knife into the street as the police officers approached, indicating a desire not to be found in possession of it. We do not consider the tire tools and the paint on them to be of any significance either way. The State’s expert witness could not tie the paint on these tools to the paint on the door, and there was no evidence that they were ever out of the automobile. In addition, the presence of the hunting knife and the paint on it indicates that it, and not the tools in the automobile, was the instrument being used in the attempt to remove the locks.

When all the circumstances are considered we find that the evidence discloses that appellant was present at the scene of the attempted burglary at the time the attempt to enter the store necessarily was being made, but when appellant testified he did not claim he saw any one else making such an attempt. Paint chips were found on appellant’s trousers which admittedly came from the door of Johnny’s Market and those attempting the burglary • chipped paint from around the locks on the door. When the police approached, one of appellant’s companions threw a hunting knife, a suitable instrument for loosening or removing the hasps for the locks, into the street, and that knife had paint smears on it matching some of the paint on the door. These circumstances are all consistent with each other and are consistent with the hypothesis of appellant’s guilt of the offense for which he was charged. They are inconsistent with his innocence, and while these circumstances are not of themselves conclusive, and they need not demonstrate an absolute impossibility of innocence, 23 C.J.S. Criminal Law § 907, p. 578, when considered together they point so clearly and satisfactorily to his guilt so as to exclude every reasonable hypothesis of innocence. We therefore conclude that the facts and circumstances shown by the evidence are sufficient, as a matter of law, if believed by the jury to induce a belief of appellant’s guilt beyond a reasonable doubt.

The above disposes of the only assignment of error briefed by appellant on this appeal. The record shows that appellant was duly arraigned and entered a plea of not guilty. The information is in proper form and is sufficient as to substance. It has not been challenged by appellant. The verdict is in proper form and the punishment was duly assessed by the trial judge (this being a charge under the habitual criminal act) and is within the limits provided by statute. Defendant and his counsel were present throughout all steps of the proceedings, allocution was granted, and the judgment is in due form.

The judgment is affirmed.

BOHLING, C., concurs.

BARRETT, C., dissents.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Santos GARCIA, Appellant.
    No. 49013.
    Supreme Court of Missouri. Division No. 2.
    June 11, 1962.

      No attorney of record.
    Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
   STORCKMAN, Judge.

The defendant was convicted of the offense of forcible rape and was sentenced to ten years in the custody of the Department of Corrections in accordance with the jury’s verdict. His motion for new trial' was overruled and he appealed. The defendant was represented throughout his trial by court-appointed counsel. After the transcript of the record on appeal was filed' in this court, the attorney was called into the Armed Forces and was permitted to withdraw as the defendant’s attorney. Thereafter, the defendant was granted leave to file a brief within thirty days after submission of the case but none was filed. Therefore, the appeal is before us on the transcript of the record and the state’s brief. Our review of the case will he on the specifications of error properly preserved in the defendant’s motion for a new trial.

There was substantial evidence to prove these essential facts: The prosecutrix was a seventy-year-old woman who occasionally worked in a tavern on South Broadway in the City of St. Louis while the owners, who were husband and wife, were away tending to their personal affairs and other business. The tavern consisted of two rooms connected by a door of ordinary width. The main room in which the bar was located was adjacent to the street; the back room was used primarily as a kitchen. The kitchen also had an outside door which was kept locked.

On February 27, 1961, the prosecutrix opened the tavern at about 1:30 p. m. Shortly thereafter the defendant and a companion (identified only as Joe) entered the tavern and took seats at the bar; the defendant ordered and was served a bottle of beer and Joe took a glass of beer. The defendant requested that the prosecutrix cash a $25 check which she refused to do. After consuming their drinks, the defendant and Joe left the tavern but returned in about a half an hour and each ordered and was served another drink. The defendant again sought to have his check cashed and the prosecutrix again refused. Shortly thereafter Joe left the tavern and the prosecutrix was alone with the defendant.

The defendant then renewed his attempt to get the prosecutrix to cash his check and when she again refused he came around behind the bar. He got behind the prose-cutrix, grabbed her around the waist and began pushing and shoving her towards the kitchen. The prosecutrix screamed and tried to escape from the defendant by holding onto the bar and pulling herself away. The defendant jerked her away from the bar and forced her into the kitchen. There she tried to escape through the outside kitchen door but was unable to open it. By this time the prosecutrix was “all out of breath”. The defendant shoved her into a position facing the sink, pulled up her dress from the back, and inserted his penis in her rectum. She continued to protest and struggle but could not escape. The defendant then turned her away from the sink and forced her face downward onto a table and pulled her dress up and her pants down. While she was in this position, he stood behind her and inserted his penis in her vagina and had a discharge. Thereafter the defendant and the prosecutrix returned to the main barroom and the defendant again insisted that she cash his check. When she refused to do so, he came behind the bar and opened the cash register; she pushed it shut. He reopened the cash register, took out some money, and again grabbed the prosecutrix and shoved her into the back room. He again forced her over the table in the same manner as before and again inserted his penis in her vagina.

When they returned to the barroom, the defendant wrote on a piece of paper, “I, Tony Garcia did not rape you,” and on the other side of the same paper, “I Tony Garcia, did not take money out of the cash register”. He directed the prosecutrix to sign the paper and when she refused to do so he threatened to take her in the back room and commit further assaults on her. She then signed the paper using her maiden name; the defendant took possession of the paper and she never saw it again. The defendant then left the tavern saying that he would be back tomorrow. When the defendant was gone, the prosecutrix locked the tavern and went to a nearby street corner and awaited the return of the owners who lived above the tavern. They returned about 6:30 p. m. and the prosecutrix told the wife what had happened. The wife told her husband and he notified the police. The prosecutrix was taken to a hospital for examination and then to the police station. She testified at the trial that she did not call the police directly because she did not want them to come to her home because she had a daughter who was mentally ill. At the trial the prose-cutrix identified the defendant as her assailant. She also identified a pair of underpants, which was Exhibit 2, as the ones she had on and which were torn on the day in question. A serologist testified that she ran tests which disclosed that there was seminal fluid on the underpants. On the morning following the assault, members of the St. Louis Police Department went to the defendant’s residence to arrest him but he was not there. They returned two or three times but were unable to locate him. About two weeks after the happening, the defendant was arrested in Baytown, Texas, and was returned to St. Louis.

The defendant did not testify nor offer any evidence. He moved for a directed verdict of acquittal which was overruled. The evidence was sufficient to sustain the charge of forcible rape as alleged in the information, and the court properly overruled the defendant’s motion for a directed verdict. Sections 546.330 and 559.260 RSMo 1959, V.A.M.S.; State v. McMillian, Mo, 338 S.W.2d 838; State v. Chandler, Mo, 314 S.W.2d 897.

Four of the specifications of error in the motion for new trial are insufficient to preserve anything for review. Supreme Court Rule 27.20, V.A.M.R, provides that the motion for new trial must set forth in detail and with particularity the specific grounds or causes therefor. See also Section 547.030 RSMo 1959, V.A.M.S. The following allegations of the motion for new trial fail to comply with the rule in that they are not sufficiently definite to preserve anything for review: The verdict and judgment in this case are against the weight of the evidence, against the greater weight of the evidence, and against the concrete and substantial evidence, and the verdict is the result of bias and prejudice on the part of the jury. State v. Roberts, Mo, 332 S.W.2d 896, 898. Accordingly they will be disregarded.

State’s Exhibit 1 was a scale drawing or plat of the premises where the tavern was located. It was identified by a trained police officer who prepared it but was not formally introduced in evidence although it was exhibited to the jury. The motion for new trial charges that the exhibit was not properly identified and was otherwise inadmissible in evidence. The defendant made no objection of any kind to Exhibit 1 and expressly stated that he had no objection to it. This leaves nothing for us to review.

The motion for new trial next asserts that the court erred in permitting Ruth McKnight, a serologist, to testify to the existence of certain chemical elements found on Exhibit 1 because the witness was incompetent and her testimony was highly prejudicial. Obviously, Exhibit 2 was intended which were the underpants of the prosecuting witness and we shall so treat the specification. The prosecutrix had previously identified Exhibit 2 as the underpants she was wearing at the time of the offense charged and which were torn. The exhibit was properly identified and admitted in evidence. State v. Terry, Mo, 325 S.W. 2d 1, 6-7[9].

The witness, Ruth McKnight, testified that she was employed by the St. Louis Police Laboratory as a serologist; that she had been engaged in this type of work for about 25 years and had had direct training and had worked personally with Dr. Grad-wohl when he was director of the St. Louis Police Department Laboratory. The defendant objected to her competency on the ground that she had “no type of degree at all”. There was further testimony as to the nature and extent of her work and experience. The court then ruled that it was unnecessary for her to have a degree and that her qualifications were sufficient. The court did not err in overruling the objection.

Next the defendant charges that the trial court erred in making improper comment upon the evidence during the final arguments and in remarking to the jury what the evidence was, and that the court’s remarks invaded the province of the jury and prevented the defendant from having a fair trial. The motion contains no specification of any particular comment or remarks by the court and we have been unable to find any in the portion of the argument set out in the transcript to which the ground can be said to refer. The responsibility is upon the defendant of preparing and filing in the reviewing court a proper transcript on his appeal. S.Ct. Rule 28.08, V.A.M.R.; State v. Sarkis, Mo., 313 S.W. 2d 723, 727[9], Allegations in the motion for new trial do not prove themselves and must find support in the transcript of the record. State v. Smith, Mo., 298 S.W.2d 354, 355-356[2]; State v. Whitaker, Mo., 312 S.W.2d 34, 37[2], The assignment is denied.

Next the defendant charges that the court erred in not granting a mistrial when the assistant circuit attorney during the closing argument made a statement to the effect that the prosecutrix took care of her demented daughter. In explaining why she did not call the police immediately, the prosecutrix testified that she did not “want them to come to my house on account of my daughter, she is a mental case, and she has been in St. Vincent’s Hospital. The defendant made no objection to this testimony. In commenting on the character of the prose-cutrix during the closing argument, the assistant circuit attorney referred to her as a woman who helps out a friend by working in a tavern, who has a demented daughter, and who is too afraid and embarrassed to call the police. Defendant objected on the ground that “there is no evidence of that” and the objection was overruled. The error specified in the motion for new trial is that the statement of the assistant circuit attorney was outside the record, was assuming something not in evidence, and that the statement was made for the sole purpose of prejudicing the rights of the defendant. The specification of error is not well taken. The evidence was sufficient to justify an inference that the prosecutrix took care of her daughter who was mentally ill, and we cannot say on the whole record that the argument was prejudicial.

The defendant further contends that the court erred in permitting the circuit attorney to comment upon the failure of the defendant to testify, in allowing the prosecutor not only to point a finger directly at the defendant, but also to refer to the fact that the evidence of the state was un-contradicted and undisputed, and that the court, therefore, should have granted a mistrial requested by the defense counsel. A defendant may testify but is not required to do so. If he does not avail himself of his right to testify, his failure to do so may not be commented upon by the state’s attorney. S.Ct. Rule 26.08, V.A.M.R.; Section 546.270 RSMo 1959, V.A.M.S. A comment by the state’s attorney that the state’s evidence is uncontradicted or undisputed does not violate a defendant’s rights under the rule and the statute. See State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, 95 [8] ; State v. Varner, Mo., 329 S.W.2d 623, 633 [18]. There is nothing in the record to support the other specifications and they cannot be considered.

Finally the defendant contends that Instruction No. 1 is vague, incompetent, indefinite and inaccurate, and that it makes no reference to the necessity of penetration, an essential element of the crime. This instruction is in a form which has been frequently approved. The definition of the terms used in the instruction states that the term “sexual intercourse” as used in these instructions requires that the female organ of the prosecutrix must have been penetrated by the penis or the male organ of the defendant to some extent and that the jury must so find beyond a reasonable doubt. The element of penetration was sufficiently covered. The instruction is one which has been held in form and substance to embody the essential elements of the statutes and to be a proper declaration of the law. See State v. Johnson, 316 Mo. 86, 289 S.W. 847, 851 [9, 10]; State v. Cottengim, Mo., 12 S.W.2d 53, 57 [8-10], The claim of error is denied.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Virgil Major WYNN, Appellant.
    No. 49096.
    Supreme Court of Missouri, Division No. 1.
    May 14, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 11, 1962.
    Virgil Major Wynn, pro se.
    Thomas F. Eagleton, Atty. Gen., Phillip C. Houx, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

A Jackson County Circuit Court jury found Virgil Major Wynn guilty of rape and fixed his punishment at two years’ imprisonment in the penitentiary. Defendant obtained a special order permitting appeal under Supreme Court Rule 28.07, V.A.M.R. The case was submitted here without oral argument upon briefs filed by the state and by defendant, pro se.

The state introduced evidence from which the jury could have found the following facts: Prosecutrix, a female of the age of 17 years, was registered with Mack’s Employment Office in Kansas City. On October 12, 1960 she received a call from the agency directing her to go to 1415 Holmes Street, there to baby-sit for a couple so they could go to work. Cab fare was promised. Prosecutrix took a cab and upon arrival at that address a Negro man (identified by prosecutrix at the trial as the defendant) came out of the building, paid the cab driver and returned. Then prosecutrix and the man entered the building. She followed him up the stairs to the landing on the second floor. On some pretext he took a position behind her. Suddenly and without warning prosecutrix was struck a blow on the top of the back of her head by an object which looked like a broomstick. When prosecutrix “sort of screamed” the man said “If you don’t shut up I’ll finish killing you.” He then told her to take down her pants and undergarments, which she did. He took off one of her shoes and one red sock and told her to “lay down.” She refused “so he picked up his stick again,” whereupon she said “I’ll sit on the step.” He told her to sit on the second step from the bottom of the flight of stairs leading from the second floor landing to the third floor. She did so, and he told her to open her legs, which she did. Then he “put his private parts into [her] private parts” for five minutes. When he had finished the intercourse he left the building. Blood from her head ran down onto her blouse, the steps, the landing, and got on her jeans and upon the wall while she was putting her clothes on. After dressing she grabbed her shoe, ran down the steps and out of the building, leaving the one red sock in the building, and ran to a drugstore at 15th and Charlotte, a block or more distant from 1415 Holmes. At the drugstore she “told the lady what happened.” The police were called. They found her in a state of apparent shock, bleeding from the laceration on her head. Her blouse was soaked with blood. She had blood smears on the rest of her clothing. At the drugstore she was unable to explain what happened, because of nerves and shock. By ambulance she was taken to General Hospital where she was examined and treated. She was at the hospital two hours. Prosecutrix testified her head lacerations were treated and that she also was examined “down there” and received treatments “on the lower part” of her body. The interne in the emergency room testified he found only a scalp laceration, an inch long, repaired by taking four sutures, but that he did no other type of examination — no gynecological examination. At the hospital prosecutrix told police officers what happened, whereupon the officers went to 1415 Holmes, a vacant house. They found bloodstains on the landing and stairs leading to the third floor; three or four spots of another substance described in the transcript; “a blood mark that resembled the buttocks of a person who had been sitting on the step there” — a “buttocks imprint.” The stains on the floor were fresh but the wood was dry and unvarnished and the blood had seeped into the wood, making it impossible to lift the material for lab inspection because “it soaked into the wood like a blotter”. They found one red sock at the bottom of the stairs leading to the third floor. They called the laboratory car, and photographs were taken. A police officer testified that prosecutrix described her assailant as a colored male approximately 20 years of age, five feet eight inches in height, weighing 140 pounds, with bushy hair. At the trial prosecutrix testified that her assailant was about five feet seven inches tall, age about 25 years, a medium-dark Negro with a “high-bridge” nose. She said he had pretty black “real bushy” hair which was long and did not look like it had been combed; that he was wearing an eggshell-colored coat with no hat. The day after the occurrence prosecutrix picked out of the police book the pictures of two other Negroes, identified “on the basis of their hair,” which was long and bushy, but at the trial she testified that these other two men were “not the man.” From six photographs, including one of the defendant, shown to her by police eighteen days after the occurrence, prosecutrix definitely identified the photograph of defendant as the man who assaulted her. “Just the minute she saw him in the picture she said ‘There’s the man, right there.’ ” At the trial, after having been impressed with the seriousness of the matter, she testified that she was “certain” that the defendant in the courtroom was the man who had raped her. Three photographs of the steps, landing, and walls, taken by the police investigators, were identified by prosecutrix as the place where the assault occurred. They showed stains and spots, which she said was blood from her head, and other spots described by the officers. They showed two prints on the second step, an outline of a person’s buttocks and three finger marks in the blood.

Appellant complains that the evidence was inconsistent; that there was no proof that appellant committed the offense charged, or of any overt act by appellant in connection with the offense, or that placed him at the scene of the crime. Appellant does not specify in what particular the evidence was inconsistent, simply asserting that when “the court inquired what position was she in at the time of the assault she replied that she was sitting on the steps with her legs open.” We find no inconsistency in this testimony, and we are not obliged to search the record for other unspecified inconsistencies. The testimony of the cab driver and prosecutrix definitely placed appellant at the scene, and prosecutrix’ testimony was substantial evidence that appellant committed this crime.

Appellant complains that the information “does not allege any date of such offense as charged, nor upon whom nor where, and therefore is totally insufficient to sustain the * * * sentence * . * The following quotation from the information completely refutes this point: “ * * * VIRGIL MAJOR WYNN * * * on the 12th day of October, 1960, at the County of Jackson, State of Missouri, did then and there in and upon one [naming the prosecu-trix], unlawfully, violently and feloniously did make an assault, * * *,” etc.

Appellant’s complaint that there was no evidence of immediate outcry is without substance, for prosecutrix testified that as soon as she put her clothes on she ran directly from the vacant house at 1415 Holmes to the drugstore at 15th and Charlotte, where she “told the lady what happened,” and the police were called.

Appellant complains that after having been treated at the hospital for a head laceration she was examined “for the specific purpose of determining whether the offense [charged] had been committed against her” but that the doctor’s testimony did not establish that she had been raped. There is no direct evidence that she was examined for the purpose of ascertaining whether she had been sexually assaulted. There was evidence that if any such examination had been made it would have been made by the gynecologist resident, and that there was no record of such an examination. If prosecutrix’ testimony that she was examined “down there” on the lower part of her body indicates indirectly that she was examined for this purpose, the failure of the interne to testify as to his gynecological findings would serve to weaken, but not to destroy, the state’s case.

Appellant asserts that the cab driver’s testimony did not substantiate the description given police by prosecutrix, corroborate the physical description of appellant, or support any other evidence introduced against appellant. The cab driver saw the man at the time he paid the cab fare. At the trial the cab driver testified that while he could not definitely say he knew him, he knew his description, pointed out defendant in the courtroom as “the fellow” who “fits the description,” and testified that defendant looked “very close like the man”— “looks like the man.” This constituted substantial corroborating evidence on the issue of identity.

Appellant complains there was no evidence that resistance by prosecutrix would have been futile. While there was no evidence of “utmost resistance,” that doctrine was not applicable under the rulings in State v. Moore, Mo.Sup., 143 S.W.2d 288, State v. Catron, 317 Mo. 894, 296 S.W. 141, and State v. Dusenberry, 112 Mo. 277, 20 S.W. 461, because there was evidence of personal violence inflicted upon the female, further violence with a stick threatened, a threat to “finish killing” prosecutrix, and, after refusal on her part to “lay down,” her yielding under the influence of this violence and these threats. From this evi-the jury could find that resistance would have been futile; that prosecutrix’ consent was induced by fear of further personal violence, and that her mind was so overpowered by such fear that she dared not resist.

Finally, appellant says the court erred in denying defendant the right, at the time allocution was granted, to introduce testimony by prosecutrix’ best girl friend that prosecutrix was struck on the head by a white man, and not raped; that the rape was a hoax. Defendant asserts this evidence unquestionably would have shown that the judgment and sentence should not have been imposed. Here is the sequence of events:

On April 19, 1961 defendant was convicted by the jury.

On April 28, 1961 defendant filed a motion for new trial, not mentioning any newly discovered evidence.

On June 7, 1961 two named persons made affidavits that prosecutrix stated in their presence and in the presence of others that the individual who assaulted her on October 12, 1960 was a white man and not Virgil Major Wynn.

On June 8, 1961 defendant filed a supplemental motion for new trial on the grounds of this newly discovered evidence, alleging it came to defendant’s knowledge “since the trial” and was not known to defendant before the trial; that it was not owing to lack of diligence; that it is so material that it will probably produce a different result in another trial; that it is not merely cumulative. Defendant did not allege that the object of the testimony was not merely to impeach the character or credit of the prosecutrix, for obviously this was its purpose.

On June 23, 1961 the motion for new trial came on for hearing. In support of the motion the two affidavits were offered. Notwithstanding the court’s impression that an amended (supplemental) motion for new trial filed could not be considered out of time and that newly discovered evidence would have to be brought to the attention of the court within 30 days, the affidavits were admitted in evidence and one of the affiants was permitted to take the stand and testify. She testified she was 16 years of age; that for four years she had run around and associated with prosecutrix; that two days after the baby-sitting job (“sometime last summer * * * summer of 1960 * * * a little before school started * * * about September, something like that”) prosecutrix told the witness that “when she got to the door that * * * white man was standing there and hit her in the head but she didn’t get raped * * * that she wasn’t raped * * * [that] it was a white man”; that she told her “more than once that the man who attacked her was a white man.” The court stated that this showing was not sufficient to justify interference with the jury verdict; overruled the motion for new trial and at the same hearing asked defendant if he had any legal cause to sho<vy why-judgment and sentence should not be pronounced. Defendant said “I do if you will accept this lady’s word here, that I stayed at her house. * * * I am just asking that you hear what she has to say. * * * I am not guilty of rape, the lady hasn’t * * Interrupting, the court said “The jury said that you were,” and proceeded to pass sentence. The lady referred to was named. Nothing in the record indicates what she would have testified to except defendant’s statement that she would testify he “stayed at her house.”

Defendant’s specific complaint is that this newly discovered evidence was not considered at the time of allocution. Although defendant was not entitled to have the newly discovered evidence considered on his supplemental motion for new trial, it was so considered, and found insufficient to justify the granting of a new trial. At the same sitting the court granted allocution and sentenced defendant. After the overruling of the motions for new trial there was no occasion, at the same sitting, for the court to immediately reconsider the newly discovered evidence as a prerequisite to the proper granting of allocution. If the newly discovered evidence was not sufficient to justify the granting of a new trial it was not sufficient to prevent the pronouncement of sentence.

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.

      . Because (1) there was no showing that it was not due to lack of diligence that this information did not come to the accused before the trial (inconsistently, defendant states in his brief that “his attorney absolutely refused to call these witnesses during the trial despite the insistence of appellant”) ; (2) the supplemental motion was filed after the expiration of the period allowed for the filing of a motion for a new trial, State v. Malone, 333 Mo. 594, 62 S.W.2d 909; State v. Smith, Mo.Sup., 256 S.W. 1025; and (3) the obvious purpose of the newly discovered evidence was merely to impeach the credit of the prosecutrix, which has been considered insufficient for a new trial based upon the ground of newly discovered evidence. State v. Rutledge, Mo.Sup., 317 S.W.2d 365, 367.


author: HYDE, Judge.

text:
    C. A. FLEMING et al., a Partnership, d/b/a Fleming & Son Maufacturing Company, Respondents, v. CLARK TOWNSHIP OF CHARITON COUNTY, Missouri, Appellant.
    No. 48829.
    Supreme Court of Missouri, Division No. 1.
    June 11, 1962.

      James J. Wheeler, Keytesville, Missouri, for appellant.
    Arthur M. O’Keefe, Moberly, C. B. Burns, Jr., Brookfield, for respondents.
   HYDE, Judge.

This is an appeal from a judgment -ordering a judgment to be entered reviving a previous judgment. We have jurisdiction because Clark Township, an organized township of Chariton County with township organization, is a party. See Missouri Township, Chariton County v. Farmers’ Bank of Forest Green, 328 Mo. 868, 42 S.W.2d 353, transferred 12 S.W.2d 763.

Application for revival of a judgment ■obtained against defendant on October 16, 1939, was filed on October 13, 1949, by G. A. Fleming as sole survivor of the partnership of himself and B. S. Fleming under the name of Fleming & Son Manufacturing Company, original plaintiffs, joined in by H. E. Trader, assignee of the judgment who asked that it be revived either in his name or in the name of the surviving partner. Scire facias was issued and hearing held by Honorable V. C. Rose, assigned as Special Judge to hear the case, after which the following judgment was entered: “Now, this 14th day of April, 1951, plaintiffs’ motion to strike defendants’ motion to dismiss application for judgment taken up by the Court, and said motion to dismiss by defendants is by the Court overruled. Cause taken up and evidence heard and judgment ordered revived as per decree filed.”

No decree was filed but on March 24, 1961, a motion was filed by G. A. Fleming stating that on April 14, 1951, a judgment was rendered by Judge Rose, “decree to be filed by plaintiff”; that “no decree was filed”; and that “plaintiff now moves the Court to enter its decree and judgment in said case.” Honorable Samuel E. Semple, assigned as Special Judge to hear this motion, ordered it sustained on April 7, 1961, and a judgment and decree was entered reviving the judgment of October 16, 1939, in the name of G. A. Fleming, from which defendant appealed.

The judgment ordered entered March 24, 1961, was as follows: “Now, on this day, comes plaintiff, G. A. Fleming by his attorney William Stringer and the defendants, by their attorney, H. K. West, and the cause coming on to be heard and evidence presented on the part of the plaintiffs and defendants the court does find that the plaintiffs recovered and obtained judgment in this Court against the defendant, Clark Township of Chariton County, Missouri, on the 16th day of October, 1939, in the sum of $979.87 their debt and damages, for $321.85 for their costs as appears in the records of this Court, and the Court doth further find that the said sums are still due and unpaid and that the said judgment will expire by limitations unless the judgment is revived. The court doth further find that G. A. Fleming is entitled to the proceeds of said judgment entered by this court against the said defendants on October 16, 1939. The court doth further find that the alleged assignment of said judgment to H. E. Trader was void and that G. A. Fleming is the sole and only person entitled to the proceeds of said judgment.

“WHEREFORE: It is ordered, decreed and adjudged that the judgment heretofore entered on the 16th day of October, 1939, by this court against Clark Township of Chariton County, Missouri, is revived in the name of plaintiff G. A. Fleming in the amount of $979.87 for debt and damages and $321.85 for costs as heretofore appears in the records of this court.”

Over defendant’s objection, at the 1961 hearing, plaintiff introduced oral testimony of the attorney for plaintiff at the 1951 hearing, who said the decree referred to was never prepared and who explained the reason for the provision in the decree finding void an assignment to H. E. Trader. (He said the assignment to Trader was for the purpose of having one suit brought on several claims by him and that this case had been dismissed.) It was stipulated by the parties at the 1961 hearing that Trader was deceased but the date of his death does not appear.

Both parties consider the 1961 order as a nunc pro tunc entry. Defendant contends the record entry of April 14, 1951, was not a valid judgment and says it does not support the judgment ordered March 24, 1961. Defendant also says the judgment of March 24, 1961, is in conflict with the pleadings and is not responsive to the issues raised by the pleadings; and that these deficiencies cannot be corrected by parol evidence. Plaintiff claims entry of the judgment of March 24, 1961, was authorized by the record entries in the case; that the entry of April 14, 1951, ordered the original judgment revived and was a final disposition of the case; and that defendant cannot complain of error affecting a third person which is not prejudicial to it.

The record clearly shows that Judge Rose entered a judgment reviving the original’ judgment; and no oral testimony was' necessary to show that. “The rendition of a judgment is the judicial act of the court, whereas the entry of a judgment by the clerk on the records of the court is a ministerial, and not a judicial, act. The entry or recording of the instrument does not constitute an integral part of, and should not be confused with, the judgment itself. Consequently, the judgment itself is not that which may be entered or recorded, but that which is considered and delivered by the court. Indeed, as between the parties themselves, the entry or recording of a judgment is not essential, although, to be effective as against third persons, the recording of a judgment may be essential.” (30A Am. Jur. 226, Judgments 94.) “Under this rule, the validity of a judgment is not affected by the delay of the clerk in entering it in the court records, or by an omission altogether to record it in pursuance of statutory provisions making it the duty of the clerk to enter all judgments of record. In this connection, it has been declared that the judgment derives its force, not from its entry on the record, but from the act of the court, and that the judgment is as final and complete when rendered by the court as it is when entered and recorded by the clerk.” (30A Am.Jur. 228, Judgments 97; see also Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935, 937; Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986, 989; Pelz v. Bollinger, 180 Mo. 252, 259, 79 S.W. 146; State ex rel. Green v. Henderson, 164 Mo. 347, 359, 64 S.W. 138; Witten v. Robison, 31 Mo.App. 525; Sperling v. Stubblefield, 105 Mo.App. 489, 79 S.W. 1172; Ex parte Mitts, 220 Mo.App. 825, 278 S.W. 1047.) As shown by these authorities, oral evidence should not have been received and cannot be considered. (See also Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, 126 A.L.R. 949; Young v. Young, 165 Mo. 624, 65 S.W. 1016; State v. Jeffors, 64 Mo. 376; Lindsey v. Nagel, 157 Mo.App. 128, 137 S.W. 912, 915.) However, our view is that the judgment of revival ordered entered on March 24, 1961, is supported by pleadings in the case considered with the entry made by Judge Rose on April 14, 1951. The only part thereof not definitely supported by this entry alone is the finding that the assignment to Trader was void and G. A. Fleming was the only person entitled to the judgment. Nevertheless, looking to the pleadings, we find the original application showed that Trader therein asked revival either in his name as assignee or in the name of the surviving partner, and made no actual claim of ownership. Furthermore, defendant’s motion to dismiss stated as its grounds “that there is no proper lawful or legal assignment shown by the record of said proceeding and that said proceeding is not brought by the real party in interest.” Thus all parties, in their pleadings, asserted that Trader was not the real owner of the judgment. Therefore, our conclusion is that consideration of the whole record, including the overruling of this motion, does authorize the construction of the judgment, ordered by Judge Rose, to be that it was a judgment for revival in the name of G. A. Fleming only.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner. PER CURIAM.

text:
    Ralph WEGENER, Plaintiff-Appellant, v. ST. LOUIS COUNTY TRANSIT COMPANY, a Corporation, Defendant-Respondent.
    No. 48451.
    Supreme Court of Missouri, En Banc.
    June 11, 1962.

      N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, for appellant.
    William M. Corrigan, St. Louis, for respondent.
   HOUSER, Commissioner.

This is a suit for $25,000 damages for personal injuries alleged to have been sustained by Ralph Wegener when the automobile he was driving and a St. Louis County Transit Company bus collided in the intersection of Lindell Boulevard and De-Baliviere Avenue in the City of St. Louis. A trial jury returned a verdict for defendant. Plaintiff has appealed from the ensuing judgment.

Lindell Boulevard runs east-west; De-Baliviere runs north-south, with this qualification, that there is a pear-shaped island 56 feet wide at its extreme width, located in DeBaliviere north of the north line of Lindell. This divides DeBaliviere into two segments and causes the west segment of DeBaliviere (for southbound traffic) to run in a southwest direction and the east segment of DeBaliviere (for northbound traffic) to run in a northwest direction. Traffic referred to as “southbound on De-Baliviere” therefore actually travels in a southwest direction, due to the pear shape of the center island north of Lindell. It is approximately 180 feet from the east curb line of the east segment of DeBaliviere to the west curb line of the west segment of DeBaliviere on the north side of Lindell. There is also an island 100 feet long running parallel to and south of Lindell. The north line of this island coincides with the south line of Lindell. Defendant’s bus was westbound on Lindell; plaintiff’s automobile southbound on DeBaliviere, at the time of collision. Electric stop and go signals control traffic at the intersection. Lights controlling westbound traffic on Lindell were located on the northeast and southwest corners of the intersection and on the north and south islands. Lights controlling southbound traffic on DeBaliviere were located on the northwest and southwest corners, and on the west end of the south island. The sequence: green to amber to red to green, etc. When the lights for westbound traffic were on green, the lights for southbound traffic were on red. Then the lights for westbound traffic would go from green to amber for 2½ seconds. Then the lights for westbound traffic would go from amber to red, and the entire intersection (except the right turn off Lindell) would stay red for 2 more seconds. Next, the lights for southbound and northbound DeBaliviere traffic would turn green. When the lights for southbound traffic on DeBaliviere were on green the lights for westbound traffic on Lindell were on red. There were 3 westbound lanes of traffic on Lindell at this intersection. Lindell is 50 feet wide both east and west of the intersection. At their narrowest (where the pear-shaped island reaches its widest bulge) the east and west segments of DeBaliviere are 30 feet wide'. These narrowest points are approximately 25 feet north of the north line of Lindell.. A perfect curve describes these points and' a point on the north line of Lindell. The east and west segments of DeBaliviere at the north line of Lindell are approximately 86½ feet wide. It is 86½ feet each way from the point at which the south side of the pear-shaped island touches the north line of Lindell, to the east and west curbi lines (extended) of DeBaliviere.

On April 14, 1958 at 12:15 P.M. the streets were wet. There was no fog or mist; visibility was good. Plaintiff was. driving south on DeBaliviere in the lane nearest the west curb of DeBaliviere, intending to cross Lindell and enter Forest Park. The bus was driving west on Lin-dell, intending to go through the intersection and on west on Lindell. The two vehicles collided in the lane the bus was using, approximately 4 feet east of the west line of the west segment of DeBaliviere (extended). The point of collision was about 85 feet west of the center of the intersection, and about 195 feet west of the traffic light for westbound traffic located on the northeast corner of the intersection.

Plaintiff’s petition contained five assignments of primary negligence, and charged negligent failure to stop, slacken speed, sound a warning, or turn and swerve under the humanitarian doctrine.

On this appeal plaintiff makes only one point: error in refusing to give plaintiff’s Instruction No. A, which would have submitted the case to the jury under the humanitarian doctrine on the theory of defendant’s failure to warn, or in the alternative, failure to slacken speed. The trial court submitted the case on primary negligence: failure to stop the bus for a red traffic light as the bus entered the intersection of Lindell and the southbound lane of DeBaliviere.

Plaintiff’s proof on the merits (his own testimony and that of Mr. and Mrs. Theodore Kopecky) tended to establish the following set of facts: Three automobiles, proceeding south on the west segment of DeBaliviere, approached Lindell and stopped at the intersection because the red light was against them. Plaintiff’s Ford automobile was in the west or curb lane. The Kopecky station wagon was in the middle. A third automobile was in the east lane, to Kopeckys’ left. The station wagon and the third car were lined up even, but the front of plaintiff’s Ford was farther north, e. g., behind the line of the other two vehicles. Because of the position of the three cars after they stopped plaintiff could not see the entire intersection to his left or east, but could see only about 92 feet cast, to a point roughly even with the traffic light on the north island. Mrs. Ko-pecky, driver of the station wagon, looked to the east. She could see the bus, quite a distance back (east) of the stop light, coming west on Lindell. Not “worrying about him” because “he had the red light,” Mrs. Kopecky started forward when the light for southbound traffic turned green, after the car to her left started forward. When the Kopecky station wagon started forward plaintiff took his foot off the brake, put it on the accelerator and proceeded out into the intersection. As he started up, plaintiff looked to his left (east) as far as he could see, but did not observe any westbound traffic. After the station wagon had gone forward 5 to 10 feet and while the station wagon was traveling 5 to 10 m. p. h., Mr. Kopecky, sitting in the front seat on the right side, saw the bus coming through the intersection and then 35 to 50 feet east of the station wagon. Kopecky shouted to his wife, who brought the station wagon to a stop very suddenly. The car to Kopeckys’ left had already stopped. When the station wagon stopped plaintiff’s Ford went past it, whereupon plaintiff glanced up, saw the bus, applied his brakes and tried to turn, but did not have sufficient time.' The bus, going 25 m. p. h., was then just a few feet away from plaintiff — 10 or 15 feet east of the line of travel of plaintiff’s automobile. Plaintiff’s Ford was 8 to 10 feet into the intersection when plaintiff applied his brakes. The brakes on the Ford were in good operating condition, but it was too late to avoid a collision. The right front of the bus struck the left front half of plaintiff’s Ford. Plaintiff estimated the speed of the bus at time of collision at 25 m. p. h. As to the length of the run plaintiff made from his stationary position to the point of collision: Plaintiff estimated the distance from the front of his automobile to the north line of Lindell, as he was waiting for the green light, at 5 or 6 feet. Kopecky put plaintiff’s automobile “half a car length back” of the station wagon, and the front of the station wagon 5 to 10 feet north of the north line of Lindell, as the cars were waiting at the stop. Plaintiff estimated the distance his Ford traveled from his stopped position to the point of impact at from 12 to 15 feet. Kopecky judged this distance to be “a car length and a half,” and estimated a car’s length at 17 to 18 feet. Plaintiff’s evidence as to the length of plaintiff’s run thus varied from 12 to 27 feet. The bus driver did not blow the horn. The impact turned plaintiff’s Ford abruptly from its southwest course, and threw it to the right, in the same direction the bus was going. It came to a stop faced west. The bus traveled about 15 or 20 feet, plaintiff’s Ford 10 or 12 feet, after the collision. Plaintiff testified that his maximum speed before the collision was 5 m. p. h.; that he was traveling “not more than five miles an hour”; that he could stop his Ford under the existing conditions at 5 m. p. h. in about 8 feet. Kopecky gave as his opinion that at the time the bus passed the front of the station wagon the speed of the bus was between 20 and 25 m. p. h. A traffic expert testified that at 15 m. p. h. a vehicle travels approximately 21 feet per second; that at 20 m. p. h. it travels 29 feet per second; and that at 25 m. p. h. it travels about 37 feet per second.

Defendant’s defense on the merits consisted solely of the testimony of the bus driver, as follows: The bus approached the intersection in the lane nearest the north line of Lindell, at a speed of approximately 15 m. p. h. The electric signals governing westbound Lindell traffic were on green, and the signal on the northeast corner was green when the bus passed that point. When the front of the bus got “practically even” with or perhaps 2 feet east of the signal on the north island the green turned to amber. The speed of the bus then was about 15 m. p. h. As the light turned amber the bus proceeded on through the intersection of Lindell with southbound De-Baliviere, and while crossing the intersection the bus drived observed traffic, sitting still, in the western segment of DeBaliviere. He saw that there were two cars in the middle lane, and about four cars in the west or curb lane. Plaintiff’s automobile was in the west lane, the curb lane. The bus driver observed the automobiles southbound on DeBaliviere start to move, and he testified that at the time they did so the bus was “better than halfway across the intersection” on the southbound DeBaliviere side, i. e., better than halfway across “the west part” of the intersection — “the southbound DeBaliviere side there.” He said he observed the light on the northwest corner ’turn red when the front of the bus was about 55 feet west of the light on the north island. The three southbound vehicles on DeBaliviere started to move approximately at the same time, and at approximately the time the light turned red. The automobiles he observed moving were the first cars, “the first one in the inside lane and the curb lane.” When these automobiles started up the bus was going approximately 15 m.p.h. The front bumper of the plaintiff’s automobile with relation to the north curb line of Lindell, before plaintiff started up, was “between five and ten feet back from the curb,” — “five or ten feet north of the curb line.” As soon as he saw the automobile start up the bus driver applied his brakes. The speed of the bus was then about 15 m. p. h. The bus driver estimated the speed of the automobile as it moved toward the north curb line of Lindell, after it started out, at about 5 m. p. h. The bus traveled approximately 40 feet from the time the brakes were applied until it stopped. The collision occurred in the curb lane of traffic, when the bus was 2 feet south of the north curb line and about 5 feet west (east?) of the west curb line. The front of the bus stopped approximately 5 feet west of the west curb line of DeBaliviere (extended). According to the bus driver the bus was “practically dead” still or “had come to a complete stop” when the collision occurred. The bus driver conceded that he did not sound his horn, which was in good working condition. The bus did not slip or skid on the pavement. The bus driver testified that under the conditions then and there existing he could stop the bus at 15 m. p. h. with safety to himself and to the other passengers in “not under 40 feet,” and that at 20 m. p. h. he could stop in. approximately “a little less than 50 feet.” The bus driver could see plainly ahead and to the side of the bus; the windshield wipers were properly working and there was nothing to “mar” his visibility.

Whether plaintiff made a submis-sible humanitarian case of failure to warn or failure to slacken depends upon whether there is sufficient evidence in this record available to plaintiff to show the time at which plaintiff came into a position of imminent peril, and whether thereafter the bus driver had the time, distance and means available to issue an effective warning or to sufficiently slacken the speed of the bus and thereby avert a collision. Under the evidence, the jury reasonably could have found that plaintiff was oblivious of the approach of the bus and danger of collision. Plaintiff looked to his left, in the direction of the bus, as he started forward, but the bus was not in sight at that time (and therefore must have been more than 92 feet east of the point of impact at that time). Wofford v. St. Louis Public Service Co., Mo.Sup., 252 S.W.2d 529, 531. Plaintiff had the green light in his favor, a circumstance for the consideration of the jury in determining the duty of the bus driver to have discovered plaintiff and to have become aware of his intention to proceed into the intersection. Harrell v. Berberich, 359 Mo. 551, 222 S.W.2d 733, 735. Plaintiff’s Ford started out from zero and attained a maximum speed of 5 m. p. h., apparently in a steady acceleration without diminution. It could be inferred from the evidence that at no time during plaintiff’s forward progress did plaintiff look to his left or east, but rather looked straight ahead to the south, until the bus was just a few feet from him — a split second before the collision. Plaintiff gave no indication of any awareness of the approach of the bus until he was 8 or 10 feet out in the intersection. Plaintiff’s obliviousness would widen the zone of peril, imposing upon the bus driver the duty to act in avoidance when he saw, or by the exercise of the highest degree of care could have seen, plaintiff approaching the path of the bus oblivious of the danger and intent upon continuing into its path. The precise point during plaintiff’s run at which plaintiff came into a position of imminent peril is not for this Court to fix. Suffice it to say that under the evidence the jury reasonably could have found that plaintiff traveled at least 20 feet from his stationary position to the point of collision; that defendant’s bus driver saw plaintiff’s moving vehicle start forward on what the bus driver knew was the green light for plaintiff; that the bus driver should have seen that plaintiff was oblivious of the danger and intent on continuing into the path of the bus at or before the time plaintiff’s automobile traversed half the 20-foot run; that plaintiff was in a position of imminent peril at or before the time plaintiff’s automobile had moved 10 feet from its stationary position.

Of failure to warn: The jury could have found that plaintiff’s average speed over the 20-foot run (commencing at zero and attaining a maximum of 5 m. p. h.) was approximately 2½ m. p. h., or less than 4 feet per second, at which rate it would have taken plaintiff approximately 5 seconds from the time he started forward until the instant of collision. McDonough v. St. Louis Public Service Co., Mo.Sup., 350 S.W.2d 739; Hook v. St. Louis Public Service Co., Mo.App., 296 S.W.2d 123, 127. Plaintiff testified that at 5 m. p. h. he could have stopped in 8 feet and at 4 m. p. h. in less than 8 feet. We take judicial notice of the fact that an automobile with good brakes traveling at 2½ m. p. h. could be stopped almost instantly — within a matter of a very few feet. Johnson v. Kansas City Public Service Co., 358 Mo. 253, 214 S.W.2d 5, 10; Smith v. St. Louis Public Service Co., Mo.App., 252 S.W.2d 83, 85, 86; Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60, 64. If plaintiff reached a position of imminent peril at or before his Ford had progressed 10 feet, and if the bus driver could have discovered his position of imminent peril sometime during the first 2 seconds of that run, there would have been time, allowing ¡¾-second reaction time to both bus driver and plaintiff, for the bus driver to have warned plaintiff and for plaintiff to have reacted, applied his brakes and stopped short of the path of the bus. Plaintiff would have had a margin of at least 10 feet in distance and more than 2 seconds in time, after allowing double reaction time, within which to stop after reaching a position of imminent peril. Intervals of approximately 2 seconds have been held sufficient time for the reaction of drivers and for the taking of effective action in avoidance in similar humanitarian failure to warn cases. McDonough v. St. Louis Public Service Co., supra; Sperry v. Tracy Dodge-Plymouth Co., Mo.Sup., 344 S.W.2d 108, 112; Wofford v. St. Louis Public Service Co., supra, 252 S.W.2d, 1. c. 531. From the bus driver’s admission that plaintiff’s automobile was stopped 5-10 feet north of the north curb line of Lindell; that he actually saw plaintiff’s automobile start up, and that as soon as he saw the automobile start up he applied the brakes on the bus, it seems apparent that the driver of the bus could have discovered plaintiff’s imminent peril at or before the time the plaintiff had reached the halfway point in his forward progress. It is true that the bus driver placed his bus “better than halfway across the intersection” at the time he saw the plaintiff’s automobile start forward, but the jury could reject the bus driver’s testimony as to the position of the bus, while accepting his testimony that he saw plaintiff at the time plaintiff’s automobile started forward, McDonough v. St. Louis Public Service Co., supra, and find from other testimony that the bus was something more than 92 feet east of the point of impact at the time the bus driver saw plaintiff’s Ford start its run. Accordingly, the jury reasonably could have found that plaintiff came into a position of imminent peril, oblivious to danger from the approach of the bus at or before plaintiff’s automobile had proceeded 10 feet from its stopped position; that plaintiff’s position of imminent peril and obliviousness was reasonably apparent to the bus driver; that thereafter the bus driver had available 2 seconds or more in time within which to take action in avoidance; that he issued no warning, and that if a warning had been issued there would have been time for plaintiff to react, activate the brakes and save himself from harm. Plaintiff made a submissible case of failure to warn under the humanitarian doctrine.

Of failure to slacken: From the foregoing evidence the jury reasonably could have found that at the time plaintiff started forward the bus was more than 92 feet east of the point of impact; that there would have been time, and that at any of the speeds testified to (15, 20, 25 m. p. h.) there would have been more than ample distance, available to the bus driver within which to slacken his speed and avoid a collision after plaintiff reached a position of discoverable imminent peril. With the ability to stop within approximately 40 feet at 15 m. p. h.; at approximately 50 feet at 20 m. p. h.; and allowing ¾ second, Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, for reaction time, the jury reasonably could have found that the bus driver had sufficient time and space, under the humanitarian doctrine, within which to have stopped short of the point of collision after plaintiff came into a position of imminent peril. If the bus could have been stopped within that distance its speed could have been slackened in a lesser space, Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Steger v. Meehan, Mo.Sup., 63 S.W.2d 109; Hamell v. St. Louis Public Service Co., supra, 268 S.W.2d, 1. c. 65, and consequently plaintiff made a submissible case of failure to slacken under the humanitarian doctrine.

Defendant contends that there was no error in refusing Instruction No. A submitting humanitarian failure to warn or swerve because it was not properly drafted. Defendant argues that it was not supported by the evidence because it submitted a situation with the bus approaching from the “west,” where the word “east” should have been used; that it used the word “eminent” where the word “imminent” should have been used; that it improperly assumed that plaintiff was injured; that it was separated into paragraphs, thereby singling out and unduly emphasizing the issues, and that the instruction, read as a whole, is confusing, misleading and unintelligible. We think the misuse of the word “west” was a mistake “so evidently clerical as to permit no possibility of error on the part of the ordinary reader,” Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 497, 69 S.W. 474, 476. As stated in respondent’s brief “All the evidence clearly showed that the motorbus was approaching from the east,” and in view of the unanimity of the witnesses on both sides with reference to the direction from which the bus was approaching, this clerical error could not possibly have misled the jury. Nor did the use of the word “eminent,” instead of “imminent,” justify the refusal of the instruction. The obvious misspelling of the word was an insubstantial and trivial imperfection. Absolute perfection in form is not the test. The test is whether the instruction is substantially correct. While a court will not be convicted of reversible error for refusal to give an instruction “unless the instruction is substantially correct,” Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 125 A.L.R. 674; Hertz v. McDowell, 358 Mo. 383, 214 S.W.2d 546; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907, 911; Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 65 A.L.R. 129, the inescapable corollary is that a court will be convicted of reversible error in refusing an instruction called for under the evidence where the instruction offered is substantially correct in form and substance. While Instruction No. A may not have been “technically perfect” in that it contained a patent typographical error and a word obviously misspelled, it was substantially correct in form and substance and for this Court to justify its refusal for such slight and inconsequential deviations would be to set the standard above that required in the practical administration of justice. The submission of the question whether by taking certain preventive action the bus driver could have avoided “striking and injuring” plaintiff does not assume that plaintiff was injured, as contended. On the contrary, the challenged paragraph, prefaced by the words “If you further find * * *,” properly submitted the requirement of a finding of the possibility of the avoidance of collision and injury. No reason is shown why the separation of the instruction into paragraphs resulted in any prejudice to the defendant’s rights. Nor do we find the instruction, read as a whole, confusing, misleading or unintelligible, as charged.

The judgment is reversed and the cause is remanded for a new trial.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the Court. En Banc.

All of the Judges concur.