author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. George Lawrence WATSON, Appellant.
    No. 48701.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.

      David Q. Reed, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., for respondent.
   STORCKMAN, Judge.

The defendant was convicted of the crimes of second-degree burglary and stealing. The jury assesssd his punishment at three years’ imprisonment for each offense. On this appeal the defendant contends that the evidence was insufficient to prove that he committed the offenses charged and, therefore, the trial court erred in overruling his motions for judgment of acquittal and for a new trial.

The evidence proves and the defendant concedes that on Sunday, March 20, 1960, Jim Summers’ service station, located near the intersection of Highway 71 Bypass and Highway 150 in Jackson County, was forcibly entered and merchandise, consisting principally of 191 cartons of cigarettes, was stolen. Before daylight on the day in question, the manager approached the station on foot intending to open it for the day’s business. As he did so, he saw a dark automobile with a sun visor in the driveway and two men going to and from the station. There was not sufficient light for him to be sure if the persons he saw were men or women, white or colored, or if there were more than two persons present. They appeared to be “almost shadows moving back and forth”, and he could not identify any of the participants. He tried to call the police from a nearby telephone booth but could not see to dial. He then returned to his home, got his gun and told his wife to call the police. When he returned to the station, the burglars had departed. The burglary was reported to the Missouri Highway Patrol at approximately 5 a. m. and a general alarm was broadcast over the Highway Patrol radio system at about 5 :03 a. m.

Sometime thereafter a police officer of Raytown in Jackson County saw an automobile violate a red traffic light at the intersection of Raytown Road and Highway 50. After a pursuit of about one-half mile, the automobile stopped and the driver, John Floyd Thomas, was arrested for traffic violations. He appeared to have been drinking. The defendant was riding in the automobile on the passenger side of the front seat. The police officer noticed that the automobile was dark green in color and had a sun visor which fit the description of the automobile used in the burglary of the service station which the police officer had heard broadcasted on the radio shortly before. Both Thomas and the defendant were then arrested and the stolen merchandise was found in the car. Some of it was on the back seat, but most of it was in the trunk of the car, the lid of which lacked about four of five inches of closing. The automobile had been stolen in Texas by Thomas and brought by him to Missouri. At the time of the arrest, the automobile was westbound on Highway 50 at a point west of its intersection with 71 Bypass.

When questioned by the police, both Thomas and the defendant denied any knowledge as to the ownership of the cigarettes, where they came from or anything about them. Two automatic pistols were found under the front seat of the automobile; one a .22 caliber was under the driver’s side and the other, a German-made automatic sometimes described as a .32 caliber or a 7.65 millimeter, was found under the seat on the passenger’s side. The German automatic was loaded with .32 caliber revolver cartridges, the rims of which had been filed off so that they could be used in an automatic. When the defendant was searched at the Raytown Police Station, four .32 caliber revolver cartridges were found in a ruler pocket on the right leg of his blue jean trousers. The shells found in the defendant’s pocket were of the same caliber and made by the same manufacturer as those in the automatic pistol, but the rims had not been filed down. These revolver shells could be fired from the German automatic, but it would be dangerous to do so, and the spent shells would not automatically eject after the gun was fired.

Thomas and the defendant were both charged with the burglary and theft. Later Thomas pleaded guilty and was sentenced to a term of six years in the penitentiary, three years for each offense. The defendant pleaded not guilty and was defended by legal counsel appointed by the court. The appointed counsel has also briefed the case and argued it orally on appeal.

The defendant did not testify, but witnesses on his behalf gave testimony designed to exculpate him. A sister of his testified that he arrived in Stover, Missouri, on Saturday afternoon, March 19, and stayed there at their mother’s home until about 3 a. m. Sunday, March 20, when he started for Kansas City in his automobile in order to go with his brother-in-law to Oklahoma. Stover is about 114 miles from Kansas City. A nephew of the defendant, whose father owned a tow truck testified that the defendant called him “around 5 o’clock” on March 20, told him his car had broken down at Knobtown and asked the witness to come out with the tow truck and pick it up; that the defendant said he would be waiting there unless he had caught a ride in the meantime; that the defendant had an appointment with his father to go to Bart-lesville, Oklahoma, to repossess a car; and that the witness picked up the automobile, a 1949 or 1950 Dodge at Knobtown, took it to “the shop” and it was later sold for junk. On being recalled for further cross-examination, the witness testified, among other things, that he picked up the car just east of Lone Jack.

Thomas was brought from the penitentiary for the trial and testified in substance as follows. He and another man, whose name he could not recall, committed the crime. They went to the vicinity of the service station in two cars accompanied by two girls they had met while drinking in saloons during the previous evening. All of the stolen property was put in Thomas’s car. Thomas’s partner in the crime got in the other car with the two girls. They had arranged to meet on 12th Street in Kansas City to divide the loot. As Thomas was driving to Kansas City, he saw a man standing beside the road with clothes on his arm. There was snow on the ground and it was cold so he stopped, picked up the man and discovered it was the defendant with whom he was acquainted. When asked where he picked up the defendant, Thomas gave this indefinite answer: “I am not very well acquainted out there, but it was a couple of miles from the place, I guess, something like that, I don’t know.” At the time he testified, Thomas had convictions for car theft, forgery, bank overdraft and burglary and larceny.

In testing the sufficiency of evidence in a criminal prosecution by a motion for a judgment of acquittal, the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Strong, Mo., 339 S.W.2d 759, 764[3]; State v. Scott, Mo., 338 S.W.2d 873, 875[1]; State v. McIntosh, Mo., 333 S.W.2d 51, 60[13].

Instruction No. 5 told the jury that “there is no direct evidence of the guilt of the defendant in this case” and further instructed the jury as follows: “Before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain, and must all point to- his guilt, and must be irreconcilable with any reasonable theory of his innocence, and before the jury can convict the defendant on circumstantial evidence alone, the circumstances must not only be consistent with his guilt and point directly thereto, but must be absolutely inconsistent with any reasonable theory of his innocence.” See State v. Dilley, 336 Mo. 75, 76 S.W.2d 1085, 1087[1].

The state contends that the defendant had possession of the stolen merchandise and that this together with other evidence permits an inference of guilt and is sufficient to support the verdict and judgment of conviction. The defendant, on the other hand, asserts that the evidence was wholly insufficient to prove a possession of the kind and character required to permit an inference that he participated in the burglary and theft.

“Generally speaking, a defendant’s possession of property stolen in a burglary should, to afford evidence of his guilt, be recent, that is not too remote in point of time from the crime, personal, exclusive, distinct and conscious, and unexplained. Where the character of defendant’s possession is such as to fulfil these requirements, it is evidence of his guilt, connecting him with the commission of the burglary, and, in the absence of countervailing evidence, may be sufficient to sustain a conviction of burglary.

“Joint possession. The requirement that possession of defendant be ‘exclusive’ in order to afford evidence of his guilt of burglary, which requirement has been considered supra this section, does not mean that the possession must necessarily be separate from all others, since an ‘exclusive’ possession may be the joint possession of two or more acting in concert. If possession is joint with another, there must be something else in the evidence to connect defendant with the offense; but possession by others may be sufficient if a conspiracy is shown.” 12 C.J.S. Burglary § 59b, pp. 736-738.

This statement of the character of possession necessary to justify the inference of guilt embodies rules of decision pertinent to this appeal and is supported by Missouri cases. In State v. Drew, 179 Mo. 315, 78 S.W. 594, 595, it was held that the possession must be exclusive and that a constructive possession, though sufficient to create a civil liability, is not sufficient to hold a party responsible criminally since he can only be required to account for things which he actually and knowingly possessed. As supporting the exclusive possession requirement, also see State v. Belcher, 136 Mo. 135, 37 S.W. 800[1]; State v. Prunty, 276 Mo. 359, 208 S.W. 91, 94[2]; State v. Wyre, Mo., 87 S.W.2d 171, 173[1]; State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 453[6]; and State v. Oliver, 355 Mo. 173, 195 S.W.2d 484, 485[1], 486[6, 7]. That possession by others or a joint possession may be sufficient if a conspiracy or a common purpose to commit a crime is shown is apparent from the decisions of State v. Strait, Mo., 279 S.W. 109; State v. Dowling, 360 Mo. 746, 230 S.W.2d 691, 694[4, 5]; and State v. Jordan, Mo., 235 S.W.2d 379, 382[3, 4]. The state does not contend that there was any proof of a conspiracy or a common purpose to commit the burglary.

We are convinced on the record before us that the evidence is not sufficient to establish possession of the character required to justify an inference of defendant’s guilt of the crimes charged. Thomas was the driver of the automobile which he had stolen and there is no showing that the defendant had any control or dominion over it. There is no evidence that the defendant made any claim to the stolen merchandise or undertook to control it or its disposition. While some of it was on the back seat, there is no evidence that he saw it prior to his arrest or, if we assume he did see it, that he knew it was stolen or that a burglary had been committed. The defendant told the arresting officers that he knew nothing about the stolen merchandise, whose it was or where it came from. Thomas, by his plea of guilty and his testimony at the trial, admitted that he was in possession of the loot. The cases relied on by the state are ones in which a possession, sufficient under the above rules, was proved by the state or admitted by the defendant. See for example, State v. Oliver, 355 Mo. 173, 195 S.W.2d 484, State v. Jordan, Mo., 235 S.W.2d 379, and State v. Reagan, Mo., 328 S.W. 2d 26.

There is no doubt that the merchandise was recently stolen, but the defendant’s presence in the automobile, without more, was not sufficient to establish his possession of the stolen property. See State v. Linders, Mo., 246 S.W. 558, 560[2]; State v. Compton, Mo.App., 297 S.W. 413, 414[1]; State v. Nelson, Mo.App., 21 S.W.2d 190 [1, 2]; State v. West, 324 Mo. 710, 24 S.W.2d 1005, 1006; State v. Murdock, Mo.App., 27 S.W.2d 730, 732[3-5]; 9 Am.Jur., Burglary, § 76, p. 277.

But the state asserts there was additional evidence from which the jury could infer defendant’s criminal agency in that it was shown that the crime was committed by two persons; that Thomas, defendant’s companion, was one of those two persons; that the defendant when arrested was riding in the automobile used by the burglars; that the defendant was in the “immediate vicinity of the crime minutes after it was committed”; and the fact that the .32 caliber automatic pistol was found under the passenger side of the front seat connects the defendant with the automobile in a capacity other than as a mere hitchhiker.

The place of concealment of the automatic and other evidence was sufficient to permit the inference that the gun belonged to the defendant, but such fact is not inconsistent with his being a hitchhiker. If he had the gun on his person, it is reasonable to expect that he would have concealed it under the seat when about to be overhauled by the police whether he was a hitchhiker or one of the burglars. The fact that he carried a gun would be evidence that he was a law violator, but it would not justify an inference that he was one of the burglars.

The evidence is not clear how far the scene of the crime is from Highway 50 and Raytown Road, nor the time interval between the commission of the crime and defendant’s arrest. Counsel in their jury arguments assume that the distance was between 12 and 14 miles and the time was 15 to 20 minutes. For present purposes, we may use these estimates. This circumstance is also highly suspicious, but again it is not wholly inconsistent with his having been picked up at the roadside when we consider, as shown by the state’s evidence, that Thomas was at least partially intoxicated and lacked good judgment as shown by the way he handled the loot and needlessly invited arrest by his manner of driving. The fact that defendant was within 12 miles of the filling station minutes after the burglary alone is not sufficient. In State v. Tracy, 284 Mo. 619, 225 S.W. 1009, a bank was burglarized and the principal evidence against the defendant was stated by the court as follows, 225 S.W. loe. cit. 1010— 1011: “Taking the evidence most favorable to the state, it merely shows that, very shortly after the burglary was committed, the appellant, in company with two other men, was found three-tenths of a mile from the scene of the crime, sitting on the river bank in the darkness, near a skiff containing a quantity of burglars’ tools and other articles used by such gentry in their nefarious enterprises; that appellant protested when a flash light was directed at him, leveled a rifle at one of the state’s witnesses, and immediately thereafter fled.” The evidence was held insufficient to sustain the conviction.

Nor do we think the fact that the defendant, when arrested, was riding in the automobile used by the burglars and being driven by one of the confessed burglars is sufficient because likewise this is not inconsistent with his being a hitchhiker. Under stronger circumstances, this court has refused to permit an inference of guilt from association alone. In State v. Belcher, 136 Mo. 135, 37 S.W. 800, the defendant was living with his family in a house where the stolen merchandise was found and was wearing some of the stolen clothing when arrested. In reversing his conviction, the court stated, 37 S.W., loc. cit. 801: “ * * * it is clear that defendant was convicted because of his association with his brother, and the bad reputation of his family.”

The circumstances proved create a strong suspicion that the defendant participated in the burglary and theft. But the Missouri cases uniformly hold that mere suspicion of guilt, however strong, is not sufficient to authorize a criminal conviction. See State v. Matticker, Mo., 22 S.W.2d 647, 648 [2], We cannot on this record affirm the conviction without doing violence to rules regarding the kind and character of possession of stolen property necessary to permit an inference of guilt of burglary and theft, the rules of circumstantial evidence, the presumption of innocence and the right of an accused against self incrimination. Consistent with adjudicated cases, the conviction must be set aside. See State v. Belcher, 136 Mo. 135, 37 S.W. 800; State v. Drew, 179 Mo. 315, 78 S.W. 594; State v. Goldfeder, Mo., 242 S.W. 403; State v. Warford, 106 Mo. 55, 16 S.W. 886; State v. Matticker, Mo., 22 S.W.2d 647; State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79; State v. Cooper, Mo.App., 32 S.W.2d 1098; State v. Wolff, 337 Mo. 1007, 87 S.W.2d 436; State v. Dilley, 336 Mo. 75, 76 S.W.2d 1085; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Tracy, 284 Mo. 619, 225 S.W. 1009.

It does not follow that we must reverse the conviction outright and discharge the defendant. Under the circumstances, the cause should be remanded in order to give the state an opportunity to produce additional evidence if it can do so. State v. Patton, Mo., 308 S.W.2d 641, 644 [7-9], and cases cited immediately above. Otherwise, the information should be dismissed.

Accordingly the judgment is reversed and the cause remanded.

All concur


source: Caselaw Access Project

author: WESTHUES, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bob Fred ASHE, Alias Bobby Fred Ashe, Appellant.
    No. 48539.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      William H. Costello, John C. Pohlman, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.
   WESTHUES, Presiding Judge.

On June 22, 1960, appellant Bob Fred Ashe was convicted of robbery in the first degree. The information, in addition to the charge of robbery, alleged that Ashe had previously been convicted of crimes and had served prison sentences therefor. Ashe was sentenced to serve thirty-five years in the State Penitentiary. An appeal was taken to this court.

The only point briefed on this appeal is that the trial court erred in not sustaining a motion to dismiss the present charge. The ground of the motion was that Ashe had previously been tried for this same offense and had been acquitted by a jury.

The evidence introduced by the State supports the following statement of facts: In the early morning hours of January 10, 1960, the defendant Ashe, in company with Eric Larson, Thomas Brown, and John Edward Johnson, entered the home of one John Gladson in Lee’s Summit, Jackson County, Missouri. Present in the home at the time were Mrs. Gladson, who was in her bedroom, her husband, John Gladson, Don Knight, Jerry Freeman, Orville Goodwin, Richard McClendon, and Ray Roberts. The men were in the basement of the home playing poker. There was a substantial sum of money on the table where the game was in progress. Defendant and his companions entered the basement. The men playing poker were ordered to remove their trousers. One shotgun and at least two pistols were used to persuade the poker players to obey the orders. Defendant and his companions took the money from the table and also took from the persons of the players money, rings, watches, and other valuables. The above is a brief narrative of what occurred. For a more detailed statement see State v. Johnson, Mo., 347 S.W.2d 220. In that case, a conviction of Johnson on a charge of robbery in the first degree was affirmed. Johnson was charged with having robbed Don Knight.

The defendant Ashe was also charged with having robbed Don Knight. On May 3, 1960, a trial on this charge resulted in a verdict of not guilty. The defendant Ashe introduced in evidence the record of that case in support of his plea of double jeopardy. It is contended that only one robbery was committed and having been acquitted, defendant cannot be legally tried again. In the case now before us, Ashe was charged with having robbed Ray Roberts. It was proven by the State that a ring valued at $1,500, a watch valued at $85, and some cash were taken from the person of Roberts.

The question is, may the State in the circumstances as related above file a separate charge against the defendant as to each person who was robbed on the theory that defendant was guilty of more than one robbery? Or was there but one offense and therefore a conviction or acquittal on one charge is a bar to any further prosecutions?

We have read numerous cases on the subject as well as law review articles and sections in Corpus Juris Secundum and American Jurisprudence. Among the cases examined are State v. Williams, Mo., 263 S.W. 195; State v. Varner, Mo., 329 S.W.2d 623; State v. Hoag, 21 N.J. 496, 122 A.2d 628 (same case in 35 N.J.Super. 555, 114 A.2d 573; 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913); People v. Kelly, 168 Cal.App.2d 387, 335 P.2d 955; People v. Lagomarsino, 97 Cal.App.2d 92, 217 P.2d 124; Orcutt v. State, 52 Okl.Cr. 217, 3 P.2d 912; Keeton v. Commonwealth, 92 Ky. 522, 18 S.W. 359; In re Allison, 13 Colo. 525, 22 P. 820, 10 L.R.A. 790. Of special interest are the following law review articles and sections of C.J.S. and Am.Jur.: 24 Mo.Law Review (Nov. 1959) p. 513; 25 Mo.Law Review (Nov. 1960) p. 369; 42 C.J.S. Indictments and Informations § 168, p. 1123; 22 C.J.S. Criminal Law § 298, p. 785; 22 C.J.S. Criminal Law § 285, p. 746; 22 C.J.S. Criminal Law § 238, p. 614; 15 Am.Jur. 65, Sec. 390.

Our examination of the law has convinced us that an overwhelming weight of authority supports the rule as stated in 22 C.J.S. Criminal Law § 298d, p. 788: “Robbery. Where accused robbed two or more persons at the same time a prosecution for one of such robberies does not prevent a subsequent prosecution for another.” In 15 Am.Jur. 65, 66, Sec. 390, it is stated that “ * * * where several persons are robbed at the same time, the offender may be indicted and convicted for the robbery of each person as a distinct offense.”

It is urged that in the case where Ashe was acquitted the same issues were tried as in the present case wherein Ashe was convicted. It is true that in each case much of the evidence was of necessity the same. However, the ultimate and main issue in the first case was, did Ashe rob Don Knight? A jury by its verdict found that he did not. In the case now before us, the vital issue was, did Ashe rob Ray Roberts? A jury by its verdict found in the affirmative. Are those verdicts inconsistent ? Not necessarily so. In the trial where Knight was the person alleged to have been robbed, the jury may not have believed beyond a reasonable doubt that any property was taken from Knight. In the case now before us, the jury found that property was taken from Roberts. It must not be overlooked that it is the function of a jury to weigh the evidence in a criminal case. A verdict of guilty is not authorized unless a jury finds beyond a reasonable doubt that the defendant is guilty. Courts and text writers should not become too excited over the outcome of cases where under apparently similar circumstances one person is convicted and another is acquitted. So long as we have the jury system (and who would want to make a change) we shall have results which at times are puzzling. The same may be true of results in court-tried cases.

The doctrine of "Collateral Estoppel” has been urged as a remedy to prevent multiple prosecutions in cases such as the one now before us. The doctrine was discussed at length in 24 Mo.Law Review, commencing at page 513, and in 25 Mo.Law Review, page 369. The doctrine has some support as may be noted in the articles in the Missouri Law Reviews. It was given consideration in the dissenting opinions in the Supreme Court of New Jersey and in the United States Supreme Court in the case of State v. Hoag, supra. Those in favor of the doctrine evidently are of the opinion that its application is necessary for the protection of defendants, that is, to prevent the State from harassing an accused by multiple trials. When consideration is given to this subject, it must be kept in mind that the local authorities, the prosecutor and the trial judge, are in a better position to judge the case than textbook writers or appellate courts. Those officers are sworn to uphold the law. Consideration must be given to the rights of an accused. But the rights of the general public and the persons injured as a result of criminal deeds must also be given consideration. The Superior Court of New Jersey in State v. Hoag, supra, 114 A.2d 573,1. c. 577(8), made a statement which we think should not be overlooked. Note what was there said: “Assuredly our prosecutors are aware that the concept of double jeop-ary is designed to prevent the government from unduly harassing an accused, and we are confident that they will not resort unfairly to multiple indictments and successive trials in order to accomplish indirectly that which the constitutional interdiction precludes.”

We rule that the defendant’s plea of former jeopardy must be denied.

We have examined matters which we are required to review upon the record under S. Ct. Rule 28.02, V.A.M.R., and find no reversible error therein.

The judgment is hereby affirmed.

All concur.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri ex rel. KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v. SALMARK HOME BUILDERS, INC., et al., Defendants, Raytown Investment Company, a Corporation Appellant.
    No. 48431.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Burrus & Burrus, Rufus Burrus, Independence, for appellant.
    Keith P. Bondurant, Howard F. Sachs, Spencer, Fane, Britt & Browne, Kansas City, for respondent.
   HOLMAN, Commissioner.

In this condemnation case (filed October 30, 1956) the commissioners appointed by the circuit court awarded defendant Ray-town Investment Company, a corporation, the sum of $20,000 for the damage to its property and both plaintiff and defendant filed exceptions to said award. The subsequent trial in the circuit court resulted in a verdict and judgment for defendant in the amount of $10,000 and defendant has duly appealed therefrom. Since defendant claimed damages in excess of $55,000 and offered evidence in support thereof, we have jurisdiction of this appeal as the amount in dispute exceeds $15,000. Section 477.040 RSMo 1959, V.A.M.S.

Plaintiff, in the course of its business, desired to construct a 161,000 kv transmission line from its Montrose Station in Henry County, Missouri to a point in the vicinity of Kansas City, Missouri, a distance of approximately 53 miles. ' In 1955 defendant had purchased 115 acres of land in Jackson County. This tract was “very nicely adapted to a subdivision plan” and defendant immediately began to prepare plans to develop it for home sites. In this action plaintiff has condemned a right of way across this tract for the transmission line heretofore mentioned. The easement required was 160 feet wide, 1,375 feet long, and involved an area of 5.1 acres.

Defendant presented witnesses who fixed the damages resulting from the taking at amounts ranging from $55,000 to $97,000. Plaintiff’s witnesses gave damage estimates which ranged from $4,000 to $7,000.

The first point briefed by defendant relates to the testimony of Frank Lacy who was assistant superintendent of plaintiff’s right-of-way department. He stated that James G. Hoover owned a tract of residential subdivision land located near defendant’s land which was comparable thereto. Over the objection of defendant Mr. Lacy was permitted to state that he had negotiated with Mr. Hoover and was able to purchase 1,700 feet of right of way from him for the line in question for $5,200. He was also allowed to testify that in the area generally they had purchased the right of way at prices ranging from $400 to $1,000 per acre.

We think the court clearly erred in permitting testimony as to the amounts paid by plaintiff to other owners of land to purchase the easement for the same transmission line for which it condemned the easement for a right of way across defendant's land. It has long been the established rule in this state that such evidence is not admissible. City of Springfield v. Schmook, 68 Mo. 394; Metropolitan St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860; Kansas City & G. R. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 84 A.L.R. 1477; Kansas City v. Thomson, Mo.Sup., 208 S.W.2d 216; State ex rel. State Highway Comm. v. Bruening, Mo.Sup., 326 S.W.2d 305.

The leading case upon this question is Metropolitan St. Ry. Co. v. Walsh, supra. Therein this court quoted with approval from Lewis, Law of Eminent Domain, as follows: “What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property.” 94 S.W. 864. The court then concluded that “after a most careful consideration of the rule announced by Mr. Lewis * * * that testimony, as to what was paid by the party who seeks to condemn property, to other parties, for lands to be used in connection with the same purpose for which the land sought to be appropriated was to be used, is inadmissible in the ascertainment of the value of the land involved in the proceeding to condemn, we have reached the conclusion that such rule of evidence as applicable to proceedings of this character, is predicated upon sound legal as well as logical reasons and should be followed.” 94 S.W. 865.

We approve the statement in Nichols On Eminent Domain, Vol. 5, § 21.33, pp. 296, 297, as follows: “The reasoning which forbids consideration of forced sales generally, renders it incompetent for either party to put in evidence the amount paid by the condemnor to the owners of neighboring lands taken at the same time, and as part of the same proceedings, however similar they may be to that in controversy and whether the payment was made as the result of a voluntary settlement, an award, or the verdict of a jury. The rights of an owner to recover just compensation for the taking of his land are not to be measured by the generosity, necessity, estimated advantage, or fear or dislike of litigation which may have induced others to part with the title to their real estate, or to relinquish claims for damages by reason of injuries thereto. It would be equally unwise, unjust and impolitic to make it impossible for a corporation which has taken land by eminent domain to compromise the claims of one owner without furnishing evidence against itself in the cases of all others who had similar claims. If a sale is made to a corporation about to institute condemnation proceedings if it cannot acquire the land by purchase at a satisfactory price, the price paid is not a fair test of market value.”

In support of its contention that the testimony was properly admitted plaintiff relies primarily upon the case of State ex rel. State Highway Comm. v. Bruening, supra. We are unable to understand how that case supports plaintiff’s contention as it specifically approved the rule established in the Walsh case. The Bruening case involved the condemnation of a right of way by the State Highway Commission. The case was reversed upon another ground but the court considered whether, upon a new trial, evidence would be admissible as to the price paid by Kansas City for nearby tracts bought for the purpose of establishing a municipal service center. We stated that the rule approved in the Walsh case would not necessarily be applied in case of a purchase by one having the power to condemn but who was not the condemner in the case being tried. We said in that opinion that “If on retrial the court does not invoke the rule of auxiliary policy referred to in Thomson, and if in fact Kansas City had no fixed purpose to condemn if it could not acquire the properties by negotiation; if it appears that no threats of condemnation were communicated to the prospective sellers and that otherwise the ■ sales were voluntary, the evidence should be admitted.” 326 S.W.2d 314. The Bruening case is clearly distinguishable from the case at bar and the statements made therein would not support the admission of the evidence here complained of.

For the reasons stated we rule that the testimony of Mr. Lacy heretofore described was improperly admitted and was prejudicial to defendant.

Most of the other points briefed by defendant relate to matters that will not likely recur on another trial and they need not be discussed herein. However, there is one point in regard to the admission of certain evidence upon which we consider it advisable to express our views. Robert L. Hamblin, president of the defendant corporation, testified in detail concerning the damages sustained by defendant. Upon cross-examination he stated that he owned one third of the stock of the corporation which he had purchased in September 19S8, about two years after this proceeding was instituted. He further stated that the land in question was the sole asset of the corporation. Over the objection of defendant he was required to testify that he paid $15,000 for the stock he had purchased. On redirect examination defendant developed from the witness that there was “considerable mortgage indebtedness” against the land when he bought the stock. On recross-examination Mr. Hamblin was asked the amount of that indebtedness and replied that it was $45,000. There was no testimony as to whether the defendant had other debts or obligations.

Defendant contends that the evidence concerning the price paid for the stock was not admissible because it did not reflect the value of the land, the whole circumstances of the sale were not shown, and the evidence was misleading and presented an improper basis for the jury to consider in determining the value of the land. No case has been cited by either party which we consider helpful in determining the question presented.

Plaintiff contends, in effect, that the ownership of one third of the stock is equivalent (in this case) to the ownership of one third of the land. If that position were sound the evidence of the sale price of the stock would probably be admissible as tending to prove the value of the land. However, there ■are many differences between the ownership of a minority interest in the stock of a corporation whose sole asset is a tract of land and the ownership of the title to a proportionate interest in the land itself. The owner of a fractional interest in land has some control over the management of the land and the use of the proceeds therefrom. If he cannot agree with his co-owners concerning the use and management of the land he can force a sale or division thereof by partition suit. However, the owner of a minority interest in the stock of a corporation does not have any legal control over the assets of the corporation, the disposition of the earnings therefrom, or the expense of conducting the corporate business. For those reasons a minority stockholder will often sell his stock for less than the proportionate value of the assets of the corporation. It would therefore appear that it would be quite speculative and somewhat misleading to admit evidence of the sale price of corporate stock as proof of the value of the land owned by the corporation.

Plaintiff suggests that the evidence was admissible to impeach the testimony of the witness concerning his opinion as to the value of the land. If the price paid for a minority stock interest is not proper proof of the value of land owned by the corporation it would seem to follow that evidence of the price paid by a witness for the stock would not be admissible to impeach his testimony as to the value of the land. Also, it should be borne in mind that Mr. Hamblin would naturally buy the stock at the lowest price for which it could be obtained. The price he paid would not be an indication that be did not consider that the stock was worth more than that amount. There are so many considerations that influence the market price of corporate stock other than the value of the assets of. the corporation that the price of the stock is not a reliable index to the value of the corporate assets. As indicated, we accordingly conclude that evidence of the sale price of one third of the stock of defendant corporation is not proper evidence to prove the value of the land owned by the corporation and is not admissible to prove such value or to impeach the testimony of the purchaser of the stock as to the value of the land. The admission of that evidence would inject a collateral issue which would prolong the trial and tend to divert the attention of the jury from the real issue in the case.

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

COIL, C., concurs in result.

HOUSER, C., concurs.

PER CURIAM.

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

All concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles N. JOHNSTONE, Appellant.
    No. 48705.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1961.
    Motion to Transfer to Court en Banc Denied Nov. 13, 1961.

      Charles N. Johnstone, appellant, pro se.
    Thomas F. Eagleton, Atty. Gen., Charles H. Sloan, Special Asst. Atty. Gen., for respondent.
   EAGER, Presiding Judge.

This appeal arises in a proceeding to vacate a judgment and sentence under Rule 27.26, V.A.M.R. Following a conviction of robbery with a dangerous and deadly weapon and a finding of two prior felony convictions, defendant was sentenced to life imprisonment in accordance with the verdict of a jury. Upon appeal, that conviction was affirmed. State v. Johnstone, Mo., 335 S.W.2d 199. Certiorari was denied as shown at 364 U.S. 842, 81 S.Ct. 81, 5 L.Ed. 2d 66. The present motion to vacate, filed in the Circuit Court of Jackson County, was denied on January 27, 1961. Defendant’s notice of appeal from that ruling was late, and this court issued its special order under Rule 28.07 permitting the filing of another notice.

By an amended information in the original case defendant was charged with robbery, as stated, with a prior felony conviction for first degree robbery in Missouri, and with a prior felony conviction in the United States District Court for the District of Colorado for the interstate transportation of a stolen motor vehicle (Dyer Act), 18 U.S.C.A. §§ 2311-2313; it was also alleged that he served both of such prior sentences and was discharged in each such case. We take judicial notice of the trial proceedings in the principal case, for we have the transcript here and the case was terminated in this court. At the time of defendant’s conviction (November 1958) and sentence (December 1958) the applicable Habitual Criminal Statutes were §§ 556.280 and 556.290 RSMo 1949, V.A.M.S., under which a verdict for the maximum term applicable to the “subsequent offense” was mandatory if the jury found defendant guilty of both the subsequent offense and the prior offenses. State v. Stanton, Mo., 68 S.W.2d 811; State v. Johnstone, Mo., 335 S.W.2d 199, supra. The procedure has since been changed, but that is immaterial here. Sections 556.280 and 556.290 RSMo 1959, V.A.M.S.

It will be noted that on defendant’s original appeal he attacked the legality and constitutionality of our then existing Habitual Criminal Statutes; these were held valid and constitutional in all respects. Defendant now seeks to pose another attack upon the procedure at his trial, involving again one section of those Habitual Criminal Statutes, Section 556.290 RSMo 1949, V.A. M.S. For convenience we quote the body of that section as follows: “Every person who shall have been convicted in any of the United States, or in any district or territory thereof, or in a foreign country, of an offense which, if committed in this state, would be punishable by the laws of this state by imprisonment in the penitentiary, shall, upon conviction for any subsequent offense, within this state, be subject to the punishment herein prescribed upon subsequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court in this state.”

In defendant’s motion he first suggests that the obviously prejudicial effect of our habitual criminal procedure tended to render his trial unfair. With that we have no present concern, for our statutes have repeatedly been held valid and constitutional. State v. Johnstone, Mo., 335 S.W.2d 199, 207; State v. Thompson, Mo., 299 S.W.2d 468, 472. More specifically, he alleges that evidence of (and references to) his prior conviction, service of sentence and discharge for the Dyer Act violation was inadmissible and so prejudicial as to make his trial unfair by depriving him of an “impartial” jury, as guaranteed by Article I, § 18(a) of the Missouri Constitution, V.A. M.S., the Fifth Amendment of the Federal Constitution, and the Due Process clauses of both the Federal and State Constitutions. U.S.Const. Amend. 14; Const, art. 1, § 10. He also asserts that this court has recognized the inherent prejudice resulting from the use of evidence of prior convictions under our statutes. State v. St. Clair, Mo., 261 S.W.2d 75; State v. McWilliams, Mo., 331 S.W.2d 610. Be that as it may, the propriety of such statutes and of the procedure therein provided is a matter of legislative policy and cognizance; it is the duty of the courts to enforce them so long as they remain a part of our law. State v. Johnstone, Mo., 335 S.W.2d 199, 204. Certainly prejudice results when prior convictions are submitted to the jury, but, where the procedure is properly used, that prejudice is no more illegal than the prejudice inherently created by proof of the principal crime. In passing, we note that it has been held that proof of prior convictions under federal law is admissible under our act. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 331 [36], And see State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327. It is not necessary, generally, that the offense previously committed outside of Missouri be “identical in all its elements with one punishable as a felony in this state.” State v. Young, 345 Mo. 407, 133 S.W.2d 404, 408. In the view we take of this appeal we do not reach the specific question raised concerning the admissibility of the evidence of the Dyer Act conviction. However, this opinion is in no way to be taken as a determination of its inadmissibility.

The Trial Court here found and determined, without hearing evidence, that defendant had been tried and convicted before a duly qualified jury, and that he was represented by competent counsel; and that the allegations of defendant’s present motion were conclusions and not allegations of any facts which would constitute grounds for relief under Rule 27.26. We have held many times that where no genuine issue of fact is made on such a motion it may be summarily disposed of as a matter of law. State v. McDonald, Mo., 343 S.W.2d 68, 72; State v. Glenn, Mo, 317 S.W.2d 403, certiorari denied 358 U.S. 942, 79 S.Ct. 348, 3 L.Ed. 349; State v. Ninemires, Mo, 306 S.W.2d 527. It has never been the object of this rule, or the purpose and intent of the courts in applying it, to afford to the defendant an opportunity for a second motion for new trial or a second appeal based on alleged trial errors. State v. Smith, Mo., 324 S.W.2d 707, 711; State v. Hagedorn, Mo, 305 S.W.2d 700, 702; State v. Childers, Mo, 328 S.W.2d 43, 45; State v. Hecke, Mo., 328 S.W.2d 41. It is obvious from the very wording of the rule that the defect in the judgment and sentence must be such as to render them subject to collateral attack. Generally, the principles applicable are very similar to those governing the granting of the writ of habeas corpus. State v. Thompson, Mo, 324 S.W.2d 133, 135. In Hagedorn, supra [305 S.W.2d 702], it was held that although the attempted admission of improper evidence of a prior conviction might have been a ground of error which “could have been considered prejudicial on appeal” (citing State v. St. Clair, Mo, 261 S.W.2d 75, on which defendant relies here), nevertheless a motion under Rule 27.26 could not function as an appeal so as to make such supposed error available in that proceeding. We have a. similar situation here. ,

When evidence of the prior Convictions1 was offered at defendant’s trial his counsel objected on certain stated grounds, but no objection was made to the federal conviction on the ground now suggested; counsel thereafter commented to the jury on the circumstances of that conviction as shown by the record, namely, that it involved an “interstate theft of a car,” that defendant had entered a plea of guilty, and that he was then only twenty-nine years old. Neither of the motions for new trial (defendant filed one per se, and his counsel filed another) raised the point now urged, although defendant did advance the contention that the use of the Habitual Criminal Act, generally, imposed double jeopardy and infringed upon his right to a fair trial.

The present contention that proof of a Dyer Act conviction was inadmissible under our statute is one raising again a matter of alleged trial error, if indeed that should be held erroneous at all; certainly, it was not and is not such a matter as to render the judgment and sentence void. State v. Hagedorn, Mo, 305 S.W.2d 700. Every trial error conceivably raised was given full and adequate attention on defendant’s original appeal. Defendant’s claim that this evidence per se prejudiced the jury to such an extent as to prevent a fair and impartial trial is no more true than would be a similar claim based on the admission of many other classes of proof known to be prejudicial, or one based upon any action of court or counsel at the trial which tended to create prejudice. We do not presume to review all trial errors in this proceeding, even though prejudicial. In the cited case of State v. St. Clair, Mo, 261 S.W.2d 75, the court merely held on direct appeal, that certain improperly established evidence of prior convictions was prejudicial and reversibly erroneous. We do not here approve or disapprove of that holding for it is not necessary; the question there arose in an entirely different type of proceeding. If there was any error here (and again we expressly disclaim any such determination) it was not such as to deprive defendant of due process, or of equal protection, or of any fundamental right, so as to permit of a collateral attack. See, generally, State v. Smith, Mo., 324 S.W.2d 707, 711; State v. Hecke, Mo., 328 S.W.2d 41, 43; State v. Ninemires, Mo., 306 S.W.2d 527; State v. Childers, Mo., 328 S.W.2d 43, 45; State v. Rutledge, Mo., 317 S.W.2d 365. What has been said concerning the admission of evidence of the Dyer Act conviction applies equally to any references to that conviction in the voir dire.

We find that nothing was done here which deprived the defendant of a fundamental right; and we find affirmatively and to our satisfaction, from the motion, the files, and the records that defendant is entitled to no relief. The judgment is affirmed.

All concur.


author: COIL, Commissioner.

text:
    Barbara PIJUT, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
    No. 48612.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Barnhart & Sommers and Don B. Som-mers and David G. Dempsey, St. Louis, for appellant.
    William M. Corrigan, St. Louis, for respondent.
   COIL, Commissioner.

Barbara Pijut, plaintiff below, sought $25,000 as damages for the alleged wrongful death of her husband on October 6, 1956, who she averred died as the result of a collision between the automobile in which he was riding and defendant’s streetcar. A jury found for defendant, and plaintiff on appeal contends that the trial court erred in giving instruction 4. An opinion on a prior appeal of this case is reported at 330 S.W. 2d 747.

It is undisputed that plaintiff’s decedent was a passenger in an automobile, driven by Charles Doggendorf, waiting to make a left turn off Grand Avenue onto Hickory Street, when it was struck in the rear by the front of defendant’s northbound streetcar.

There were north and southbound tracks in the approximate center of Grand. Caroline Street intersects the east side of Grand. At the south curb of Caroline was a stop sign for northbound Grand traffic. Beginning at the south curb of Caroline and immediately east of the east rail of the northbound track and-extending southwardly was a loading zone for northbound streetcar passengers. Hickory is two blocks north of Caroline (one short and one ordinary block) and Grand is downgrade from south to north from Caroline to Hickory.

The facts and circumstances under which the respective vehicles arrived at the collision point were in dispute. Plaintiff’s version was that the northbound Doggendorf car came to a stop on Grand at Caroline; that the collision streetcar was then stopped at the south curb of Caroline taking on passengers ; that the streetcar was stationary when Doggendorf proceeded; that within the first short block north of Caroline he went onto the northbound track and north-wardly to the south curb of Hickory where he came to a stop with the left side of his automobile near the center line of Grand and gave an arm signal for a left turn; that after he had remained in that stopped position for as long as twenty seconds the streetcar ran into the rear of the automobile.

Plaintiff submitted her case under the St. Louis Vigilant Watch Ordinance, directing a verdict in the event the jury found that defendant’s operator failed to keep a vigilant lookout for vehicles on the track when by so doing he could have discovered the automobile on the track and in a position of danger in time to have avoided colliding with it by stopping said streetcar in the shortest time and space possible.

Defendant’s evidence was to the effect that its streetcar was stopped at the stop sign at the south curb of Caroline where passengers alighted and hoarded; that as it proceeded north and when it had reached a place about 100 feet south of Hickory and was traveling 25 to 30 miles per hour its operator saw an automobile going 25 to 30 miles per hour (which was in fact the Doggendorf automobile) “cut in on me very sharply”; that at the time the automobile cut in, it was about two feet to the right of the streetcar and the operator saw it through the front side door; that the automobile’s front end could have been a little ahead or a little behind the front of the streetcar but it was approximately “even” and it was going faster than the streetcar; that at the time defendant’s operator saw the automobile cutting in he immediately threw the car into emergency, that is, applied full brakes; that the automobile moved to a position in front of the streetcar, turned due north, proceeded a short distance, and made an unsignaled stop at the south curb of Hickory; that the overhang of the left side of the streetcar struck the left rear of the stationary automobile; that the streetcar had been slowed to one to five miles per hour at the time of the collision and it would have taken 100 to 150 feet including reaction time to have stopped the streetcar under the existing conditions at a speed of 25 to 30 miles per hour.

The St. Louis Vigilant Watch Ordinance read in evidence was: “Vigilant watch to be kept. The conductor, motorman, grip-man, driver, or any other person in charge of each car shall keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible.”

Defendant’s verdict-directing instruction 4 was: “The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in the evidence Mr. O’Neal was operating the streetcar mentioned in the evidence north-wardly along Grand avenue, and that as said streetcar was approaching Hickory street it arrived at a point approximately 100 feet south of Hickory street traveling approximately 25 to 30 miles per hour, and if you find that at this time the automobile driven by Charles Doggendorf was being operated with the front end of said automobile approximately even with the front of the streetcar and approximately two feet to the right hand side thereof at a greater speed than the streetcar, and if you find that said automobile was driven from the position set out above so as to sharply cut to the left (west) and directly in front of and into the path of said moving streetcar without any sign or signal of the auto driver’s intention so to do, and that said automobile then continued on northwardly on the northbound streetcar tracks until such time as said automobile neared Hickory street, and if you find that said automobile was then brought to a sudden stop facing in a northwestwardly direction at or near the south curbline of Hickory street without any sign or signal of the auto driver’s intention so to do, and if you find that at the time when the said automobile started to cut to' the left in front of and into the path of the streetcar Mr. O’Neal applied the emergency braking power of said streetcar in an attempt to stop said streetcar in the shortest time and space possible under the conditions then and there existing, and if you find that the speed of the streetcar was reduced to approximately 1 to 5 miles per hour at the time of the collision, and that Mr. O’Neal, with the means and appliances at hand could not fully stop said streetcar and thereby avoid colliding with said automobile, then in that event, the plaintiff, Mrs. Pijut, is not entitled to recover and your verdict should be in favor of the defendant.”

Plaintiff contends that instruction 4 was erroneous because it failed to require the jury to find that the streetcar operator exercised the requisite degree of care in “keeping a lookout prior to the moment when he actually saw the Doggendorf automobile for the first time.” Plaintiff correctly asserts that it was defendant’s duty not only to keep a vigilant watch for vehicles on the streetcar track but as well for vehicles moving toward the track and on the first appearance of danger to any such vehicle to stop its streetcar in the shortest time and space possible. Thus, says plaintiff, the jury properly could not have found for defendant on the theory submitted unless as a prerequisite it was required to find that the streetcar operator not only (in the exercise of requisite care) could not have stopped the streetcar after he saw the automobile approaching the track but it •should have been required to find also that the operator exercised requisite care to have .seen the automobile when there “was the first appearance of danger” to it from the ■continued movement of the streetcar. In other words, plaintiff contends that defendant’s duty was not only to act after its operator saw the automobile moving toward the track but that it had the duty also to have exercised commensurate care to have ■seen the automobile at the time it first was in a position when it appeared or should have appeared to be in danger from the ■streetcar’s forward movement.

We agree that a verdict-directing instruction, whether it be plaintiff’s or defendant’s, must contain a submission of all the essential issues which are prerequisite to a verdict for the submitting party and thus even though plaintiff’s recovery instruction in this case hypothesized defendant’s duty only after the automobile was on the track, defendant having elected to hypothesize the facts under his theory rather than to converse plaintiff’s submission, its verdict-directing instruction needed to include the requirement suggested by plaintiff. See Thomas v. Kimsey, Mo., 322 S.W.2d 754, 757[l-3]. The trouble with plaintiff’s position, as we see it, is that her premise that instruction 4 does not contain the requirement in question is fallacious.

Instruction 4 required the jury to find in part “that at the time when the said automobile started to cut to the left in front of and into the path of the streetcar Mr. O’Neal applied the emergency braking power of said streetcar in an attempt to stop said streetcar in the shortest time and space possible under the conditions then and there existing,” etc. (Our italics.) The foregoing, under the evidence in this case, effectively required the jury to find prerequisite to a defendant’s verdict that its operator in fact saw the Doggendorf automobile at the first instant its presence and position could have presented an appearance that it was endangered by the continued forward movement of the streetcar. For it is apparent under the evidence that so long as the automobile traveled northwardly parallel to the streetcar there could have been no appearance of danger to it. The “first appearance of danger” to the automobile could have occurred only at the instant the automobile “started to cut to the left in front of and into the path of the streetcar” as hypothesized in the instruction. The phrase “started to cut” is synonymous with “began to cut” and, if the jury found that defendant’s operator actually saw the Doggendorf automobile at the time it “began” to move toward the track, it necessarily found that the operator saw it on the “first appearance of danger * * * to” it.

Plaintiff contends that instruction 4 is erroneous for the further reason that it is in reality a sole cause instruction and, as such, must have negatived, but did not, defendant’s negligence submitted in plaintiff’s verdict-directing instruction. We shall not pause to determine whether 4 is a sole cause instruction; for if it is or if, in certain respects, it is in the nature of a sole cause instruction, and, in either event, it was necessary for it to have negatived defendant’s negligence as hypothesized by plaintiff, instruction 4 did, in fact, negative defendant’s negligence submitted in plaintiff’s instruction. As heretofore noted, plaintiff’s instruction 1 submitted defendant’s negligence in violating the Vigilant Watch Ordinance in failing to have discovered the Doggendorf automobile “upon, the track” in time to have avoided the collision by stopping the streetcar in the shortest time and space possible. Instruction 4 hypothesized a fact situation which, if so found by the jury, negatived defendant’s negligence submitted in instruction 1 because instruction 4 hypothesized facts in evidence which, if true, destroyed plaintiff’s. case on the factual theory under which she had submitted it. Silver v. Westlake, Mo., 248 S.W.2d 628, 633 [4].

The trial court did not err in giving instruction 4 for either of the reasons assigned by plaintiff, and the judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: WESTHUES, Judge.

text:
    CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Respondent, v. INTERNATIONAL HARVESTER COMPANY et al., Defendants, Sommers Brothers Manufacturing Company, a Corporation, Defendant-Appellant.
    Nos. 46907, 48074.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1961.

      Lashly & Neun, Paul W. Lashly, Frank A. Neun, St. Louis, for appellant.
    Thomas J. Neenan, Oliver T. Johnson, Andrew J. Reis, St. Louis, for respondent.
   WESTHUES, Judge.

This case involves the question of the valuation of property and the method of assessing damages in a condemnation proceeding.

The International Harvester Company and many others were named as defendants in a condemnation petition filed by plaintiff City of St. Louis. Sommers Brothers Manufacturing Company, a corporation, was one of these defendants. After the commissioners appointed by the court filed a report, Sommers Brothers Manufacturing Company filed exceptions which were tried. After the court affirmed the award made by the commissioners, this defendant filed a notice of appeal. That case was numbered 46907. Then, after a final judgment was entered as to all parties in the condemnation case, this defendant filed a second notice of appeal, that is, case No. 48074. These appeals were consolidated so, in fact, there is but a single case before this court and the Sommers Brothers Manufacturing Company is the sole party defendant on this appeal.

(Sommers Brothers Manufacturing Company will hereinafter sometimes be referred to as Manufacturing Company or as defendant.)

On December 5, 1945, the condemnor, the City of St. Louis, passed an ordinance authorizing condemnation proceedings to be instituted for the purpose of widening North Broadway, a street within said City.

On May 15, 1946, a petition was filed wherein numerous persons and corporations were named as owners of property which was to be taken or affected by the proposed improvement.

On November 3, 1952, the cause was referred to the Permanent Condemnation Commission of the City and on September 21, 1953, the Commission report was filed. In this report, the commissioners assessed damages in the sum of $58,020 in favor of the defendant corporation for the taking and damaging of property of that company. Exceptions to the report were filed on October 6, 1953, by the defendant and by the City on October 9, 1953.

On March 1, 1956, the City of St. Louis deposited the money in the registry of the court for the benefit of the property owners. Later, the City dismissed its exceptions. Upon a hearing, which was begun on November 25, 1957, before the circuit court, sitting without the aid of a jury, that court affirmed the report of the commissioners as to the Manufacturing Company. An appeal was taken to this court.

The amount claimed by the defendant exceeds the amount of the judgment by far more than $15,000 and therefore appellate jurisdiction is vested in this court. Furthermore, a constitutional question has been presented for determination.

In the brief, the property owner claims that the trial court erred in ruling that the damages should be determined as of the effective date of the ordinance authorizing the condemnation. That date was December 5, 1945. The defendant corporation contends that the court, on the hearing of the exceptions, should have determined the damages as of the date the City deposited in the registry of the court the amount found to be due by the commissioners. This date was March 1, 1956. The evidence showed beyond a doubt that property values had increased materially between December 5, 1945, and March, 1956.

The trial court ruled that under the provisions of the City Charter the damages must be determined as of the date the ordinance became effective. The Charter so provides. Note that Sec. 5 of Article XXI reads, in part, that “they (the commissioners) shall hear the evidence submitted by the parties interested; assess the damages as of the date said ordinance became effective.” The trial court, in. comments made while ruling the question, referred to the case of City of St. Louis v. Senter Commission Co., 337 Mo. 238, 85 S.W.2d 21, as authority for the ruling made.

The defendant contends that the Charter provision in question is unconstitutional in that it is in conflict with Sec. 26 of Article I of the 1945 Missouri Constitution, Vol. I, V.A.M.S. This section, in so far as applicable, provides “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” Among the cases cited in suppor1>of the theory that the damages to be assessed, in a case where exceptions have been filed to the commission report, should be as of the date the con-demnor pays the money into court are: City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; In re Armory Site in Kansas City, Mo., 282 S.W.2d 464; Kansas City Southern Ry. Co. v. Second Street Imp. Co., 256 Mo. 386, 166 S.W. 296; Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W. 2d 858; State ex rel. State Highway Commission v. Schutte Investment Co., Mo., 334 S.W.2d 241; Curotto v. Hammack, 362 Mo. 457, 241 S.W.2d 897, 26 A.L.R.2d 1302.

Sec. 26 of Article I of the 1945 Constitution is very similar, in fact, in substance it is the same as Sec. 21 of Article II of the 1875 Constitution. The provision of the 1875 Constitution was before this court in the case of City of St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298, loc. cit. 302(5). This court there declared the law to be as follows: “If we will take our constitution at its word, and give effect to it according to its plain meaning, we can have no difficulty in determining the proper measure of damages in such case. Courts lay down general rules for the guidance of the jurors and commissioners which are sometimes serviceable, but any rule that may be laid down must itself be measured by the rule given in the constitution, and any rule that so limits the damages in such case as that the result will be in fact less than just compensation for the injury suffered falls short of the constitutional measure.”

The actual taking of the property of the defendant corporation in this case occurred on March 1, 1956, when the-amount of the award was paid into the registry of the court and not on December 5, 1945, the date the ordinance became effective. This court has so held in a number of recent cases. In the City of St. Louis v. Vasquez, supra, the commissioners filed their report on January 5, 1953, awarding damages of $32,152.50. On February 21, 1957, more than four years later, the City paid the award into the registry of the court for the benefit of the owner. Exceptions were filed. In the trial of the case,, the value of the land taken was determined as of the date the money was deposited by the City. After a remittitur, a judgment in the sum of $144,900.37 was affirmed by this court. The property had increased in value between the time of the commissioners’ award and the time the City deposited the money in court. In a condemnation proceeding case, In re Armory Site in Kansas City, 282 S.W.2d 464, loc. cit. 470 (9, 10), this court said that the landowner “is fully protected insofar as this proceeding is concerned in that his land is not taken from him until just compensation, regardless of the source, is either paid or made available to him.”

The case of City of St. Louis v. Senter Commission Co., supra, relied on as authority that, in assessing damages, it is proper to determine values as of the date the ordinance became effective, does not rule the question. In that case, the question of benefits and not damages was before the court. The constitutional provision, Sec. 26 of Article I, supra, is superior to any charter or ordinance in awarding damages in condemnation cases as was said in the case of City of St. Louis v. Brown, supra [155 Mo. 545, 56 S.W. 302]: “ * * * any rule that so limits the damages in such case as that the result will be in fact less than just compensation for the injury suffered falls short of the constitutional measure.” So, in this case, the defendant’s property was tagged for condemnation on December 5, 1945. The damages were determined as though the City acquired title as of that date. In fact, the property owner had no opportunity to obtain the money for his damages until 1956. Under the constitutional provision above mentioned, it was then, and only then, that “the proprietary rights of the owner therein divested.” We rule that the constitutional rights of the Manufacturing Company were violated in that its property was taken for public use without just compensation. On remand, the damages to be assessed should be determined as of the date the City paid the amount of the commissioners’ award into the registry of the court.

We have ruled that in this case the Charter provision fixing the effective date of the ordinance as the time to consider the question of damages must yield to the Constitutional provision, Sec. 26 of Article I, supra. The question remains whether such Charter provision is unconstitutional. A situation such as we have before us should not occur often if the City authorities and the court wherein a condemnation proceeding is pending follow the provisions of the Charter. The Charter, Sec. 1 of Article XXI, provides that after an ordinance is passed providing for condemnation of property, the City counselor shall within six months file a petition seeking condemnation in the circuit court. Sec. 3 of Article XXI of the Charter provides that it then becomes the duty of the court to designate commissioners to assess the damages. This section further provides that the commissioners “shall make report within the time fixed by the court, which time shall in no event exceed ninety days.” Sec. 6 of Article XXI of the Charter authorizes the City at any time after the commissioners’ report is filed to pay into court the amount of the damages assessed. In other words, the Charter provisions contemplate a completion of the proceedings within a reasonable time. In such cases, the question of whether there has been a material change in the value of property pending the proceeding is seldom presented. However, as occurred in this case, where the commissioners’ report is not filed until nearly eight years after the effective date of the ordinance authorizing the condemnation, the date of the ordinance cannot and should not be used in assessing the damages, especially where there has been a change in the value of property. In all condemnation cases, the constitutional mandate as to compensation for the taking of property must be controlling. City of St. Louis v. Vasquez, supra. Courts do not and should not declare statutes or charter provisions unconstitutional if such a ruling can be avoided. However, the Charter provision fixing the date for the determination of damages is clearly in conflict with the constitutional provision and is therefore void. Commissioners in fixing damages should determine the amount thereof as of the time the award is made. If exceptions are filed, the amount of damages should be determined as of the time the award is paid to the property owner or into the registry of the court for him.

In the brief, it is claimed that the trial court erred in not granting the defendant a trial by jury. The defendant property owner asked for a jury trial on the exceptions. This request was denied for the reason that Sec. 3 of Article XXI of the Charter provides that “Any party entitled to and desiring trial by jury of its rights to compensation shall file in the cause, before the assignment of the commissioners in each case, written demand therefor, including therein a description of its property to be taken or damaged, and failure so to do shall be a waiver of the right of trial by jury.” The Charter further provides that if such request is timely made, the question of damages as to the party asking for a jury will not be determined by commissioners but by a jury. The defendant in this case did not request a jury until after the commission had filed its report. If the Charter provision is valid, the trial court was justified in denying the request for a jury. The defendant claims that the Charter provision is unconstitutional. The point must be ruled against defendant. The right of trial by jury will be waived if no timely request therefor is made. 29 C.J.S. Eminent Domain § 281 b, p. 1285. Reasonable regulations and conditions may be made prerequisites for a jury trial and unless a party to a suit complies with such regulations waiver of a jury trial may result. 50 C.J.S. Juries § 114, pp. 827-830. The Charter provision in question was before this court in these cases: City of St. Louis v. Franklin Bank, 340 Mo. 383, 100 S.W.2d 924; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935, loc. cit. 944, 945 (10); and City of St. Louis v. Grass, 263 S.W.2d 387, loc. cit. 390(1). This court in each of those cases ruled that unless a request for a jury is timely made, the right thereto has been waived.

Complaint is made by defendant corporation because the trial court refused to award interest. On a reassessment of the damages, there should not be any confusion as to the allowance of interest. The case of City of St. Louis v. Vasquez, supra, along with cases cited therein, should be a sufficient guide for the proper allowance of interest if any is found to be due. Other minor matters were complained of which should not occur on a retrial.

The judgment of the trial court is hereby reversed and the cause remanded with directions to the trial court to proceed in accordance with the opinion herein.

It is so ordered.

PER CURIAM.

The foregoing opinion of WESTHUES, J., has been adopted as opinion of the court en banc.

All concur.