text:
    STATE of Missouri, Respondent, v. Jackie IRBY, Appellant.
    No. 52902.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Henry L. Twigg, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    James Haw, Charleston, for defendant-appellant.
   HOUSER, Commissioner.

Jackie Irby was charged with burglary and stealing. § 560.110, RSMo 1959, V.A. M.S. The jury returned a verdict finding defendant guilty of both charges. Judgment was entered on the verdict. The court sentenced defendant to commitment in the custody of the department of corrections for two years on each charge, the sentences to run concurrently. Defendant has appealed, challenging the sufficiency of the evidence to sustain a conviction.

The state’s case, based on circumstantial evidence, tended to show these facts: On the morning of September 2, 1966 John Jackson’s gasoline filling station in Whiting was broken into and a quantity of batteries, cigarettes and razor blades were taken, About 5 or 6 o’clock on the preceding evening defendant and three other young men (whose first names were Dusty, Rayburn and Warren) began driving around Mississippi County in Warren’s white 1963 Thunderbird automobile. They were drinking. They went from East Prairie to Wyatt Junction and on to Whiting. Warren “pulled up” and stopped on a little dirt road behind Jackson’s filling station, sometime between midnight and 1 o’clock a. m. Defendant was sitting in the rear seat. Warren said something to defendant. The nature of this communication was not shown. Warren had something in his hand (thought to be a screwdriver), which he got out of a little pocket in the car. Warren, “kind of mumbling like,” said he believed he could “get by with it.” He did not say what he thought he could get by with. Warren and defendant got out of the car. They started walking toward Jackson’s filling station. Dusty, the state’s witness to defendant’s activities, testified that he saw Warren go into the filling station, but he did not see defendant go into the filling station and did not know whether defendant went into the station or not. Dusty did not see defendant again after the time defendant left the car with Warren, walking toward the station. It was not shown how far in the direction of the station defendant walked. After Warren entered the filling station Dusty heard a sound like glass breaking. A broken glass in the door was later found. Six or seven minutes after he heard the glass breakage Dusty saw Warren come back to the car with several different kinds of cigarettes in his hand. Defendant was not with Warren when Warren returned to the car. Warrent put the cigarettes on the rear floorboard of the car. Rayburn, who had “passed out,” was sitting in the car during these events. Warren went back toward the filling station. When Warren returned with the cigarettes Dusty left the car, made his way to a telephone and called, telling his father to come get him because he did not “want any part of it.”

The Thunderbird was parked on the wrong side of the road, its lights off and trunk lid raised. A highway patrolman passing by noticed the car, decided to investigate, and found Rayburn sitting in the car, drunk, not knowing where he was. The patrolman found some new batteries, some razor blades and cigarettes in the trunk and on the rear floorboard of the car. The patrolman looked in the direction of the filling station, where he saw two subjects come to the corner of the station. They looked in the direction of the Thunderbird, and then turned and ran across the highway and out into a field. He did not pursue them, could not identify them and could not say that he saw defendant. He was not close enough to identify anyone other than Rayburn. From Rayburn he ascertained the names of the other boys. He radioed this information to the East Prairie police, who picked up Warren and defendant about 1:30 o’clock a. m., traveling south as if leaving East Prairie, in Dusty’s father’s automobile. Warren’s wife and Dusty’s father were also in the car. It was not shown that the automobile contained any of the fruits of the crime. There was no evidence of a common scheme or conspiracy to commit a burglary; no evidence of flight; no evidence of contradictory statements made by defendant when arrested, or of any attempt to deceive the officers as to his true name and identity.

Defendant denied that he broke into or entered Jackson’s station; denied that he took any property out of the station; denied that they stopped at the station. He testified that they stopped the car at Whiting Ditch, a quarter mile from the railroad crossing at Whiting, where they drank a few beers. He stated that Dusty asked Warren to use his car to see if he could pick up a girl; that Warren and defendant got out of the car and Dusty drove away with Rayburn in the car, “passed out.” Dusty was to be gone only a few minutes but he did not return. After waiting for an hour Warren and defendant walked to East Prairie, where relatives of Dusty told them “the law” was looking for them. They met Warren’s wife, after which Dusty’s father took them back to Whiting. Dusty’s father talked to Mr. Jackson, who had been notified of the break-in. They were on their way home when apprehended.

The state’s brief, without analyzing the evidence, asserts generally that the evidence goes beyond mere suspicion, concludes that there was sufficient circumstantial evidence to establish guilt and urges that “appellant simply failed to break the chain of circumstantial evidence.” The writer of the brief misconceives the nature of the burden resting upon the state, which is to prove the guilt of the defendant beyond a reasonable doubt. Where the state relies upon a chain of circumstances to establish guilt it is the burden of the state to forge every link in the chain; it is not incumbent upon the accused to “break the chain” of circumstantial evidence.in order to be entitled to an acquittal. “Where a chain of circumstances leads up to and establishes a state of fact inconsistent with any theory other than the guilt of the accused, such evidence is entitled to as much weight as any other kind of evidence; but the chain, as it were, must be unbroken, and the facts and circumstances disclosed and relied upon must be irreconcilable with the innocence of the accused in order to justify his conviction.” State v. Morney, 196 Mo. 43, 93 S.W. 1117, 1119.

The facts and circumstances relied upon by the state in this case to establish guilt are not inconsistent and irreconcilable with defendant’s innocence and do not point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of his innocence, as required. State v. Walker, Mo.Sup., 365 S.W.2d 597, 601 [5]. Although the evidence clearly implicates Warren, places defendant in Warren’s company for several hours prior to and immediately before the burglary, and portrays defendant and Warren walking towards the scene of the crime, there is a complete void in the evidence from that point on, as far as defendant’s complicity is concerned. From the time defendant and Warren started walking in the direction of the station defendant drops out of sight and does not reenter the picture at or near the scene of the crime or under incriminating circumstances. There is nothing to indicate that defendant knew that Warren intended to burglarize the station. There is no evidence that defendant ever reached the filling station, or served as lookout for Warren, or later had any of the fruits of the crime in his possession or under his control, or that the stolen goods were found in an automobile in which defendant was riding, or that he ever returned to the Thunderbird. The patrolman did not identify defendant as one of the two subjects who fled from the corner of the station.

The state showed that there were two persons actively engaged in the commission of this crime. Notwithstanding defendant was not identified as one of them the state relies upon the inference that defendant was one of them. This, however, is not the only reasonable inference arising from the state’s evidence. The state’s case demonstrates that there was a person at the scene other than defendant and an opportunity for that other person to have been the accomplice of Warren. It would be equally reasonable to infer from the evidence that that second participant was Dusty, not defendant. Rayburn was hors de combat from overdrinking and must be ruled out as a possibility, but Dusty was there on the scene, fully capable of joining Warren in the venture, quite aware of the fact that burglary and stealing were occurring. Dusty was not in or around the Thunderbird when the patrolman arrived to investigate. It is altogether possible that at that moment he (Dusty) was inside the station, actively assisting Warren. It is not important that the proof does not actually show that Dusty was the other participant. It is sufficient to reconcile defendant’s protestation of innocence that there was opportunity for some other person to have been the second participant observed by the patrolman. See State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794, 797, where the Court said, “Thus we see that the facts and circumstances shown by the evidence are not inconsistent with the innocence of the defendant. It matters not that there is no evidence tending to show that some person other than the defendant killed Frossard. That there was opportunity for some other person to do so cannot be gainsaid. * * * [Citing numerous cases, including State v. Morney, 196 Mo. 43, 93 S.W. 1117, where this concept appears first to have been stated, 93 S.W., l.c. 1119.]”

The most that can be said for the state’s case is that it places defendant at the scene of the crime immediately prior thereto, in the company of one who apparently was directly implicated; that it demonstrates that defendant had an opportunity to participate in the commission of the crime and reveals him in very suspicious circumstances. This, however, is not enough to sustain the state’s burden of establishing defendant’s guilt, either as a principal or as an aider and abetter.

Presence of the accused immediately before the commission of a felony is evidence “to be considered in determining whether he was guilty of aiding and abetting, but in order to aid and abet another in the commission of a crime something more than mere presence must be shown. * * * It is necessary that the accused ‘associate himself with the venture’ in some fashion, Mays v. United States, 8 Cir., 261 F.2d 662; that some form of affirmative participation be shown, State v. Butler, Mo.Sup., 310 S.W.2d 952, 957, — participation in the crime as something that he wished to bring about; that he sought by his action to make it succeed, United States v. Peoni, 2 Cir., 100 F.2d 401, 402; that he ‘consciously shared’ in the criminal act. Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919.” State v. Castaldi, Mo.Sup., 386 S.W.2d 392, 395. There is nothing in the state’s case to show that this defendant associated himself with' this venture, affirmatively participated in the crime, forwarded the effort, or consciously shared in the act.

Appellate opinions reversing convictions-of persons accused of larceny after having-been seen at or near the scene of the crime-under suspicious circumstances in which the accused had an opportunity to commit the-offense include State v. Walker, Mo.Sup., 365 S.W.2d 597; State v. Murphy, 356 Mo. 110, 201 S.W.2d 280; State v. Archer, Mo.Sup., 6 S.W.2d 912; State v. Favell, Mo.App., 411 S.W.2d 245. Compare State v. Watson, Mo.Sup., 350 S.W.2d 763, in which a conviction of burglary and stealing under circumstances much more incriminating-than those shown here was reversed for like reasons. “Mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake.”" State v. Jones, 106 Mo. 302, 17 S.W. 366, 369. “[Suspicions or even strong probabilities of guilt do not authorize a conviction.” State v. Scott, 177 Mo. 665, 76 S.W. 950, 952.

There having been no substantial evidence of defendant’s guilt defendant’s motion for a directed verdict of acquittal' should have been sustained.

This point is dispositive of the case. We need not review the procedural errors assigned.

Judgment reversed and defendant ordered' discharged.

WELBORN and HIGGINS, CG, concur..

PER CURIAM:

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

All of the Judges concur.

      . See and compare State v. Gibson, Mo.App., 409 S.W.2d 243, 244, where the principal offender told the driver to stop the car, announced “I’m going to go steal a car.” When the ear was stopped at a used ear lot the defendant got out of the ear with the principal offender, and the two returned from the car lot together, with the stolen merchandise in their possession.


source: Caselaw Access Project

author: HIGGINS, Commissioner. PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert Lee MOSER, Appellant.
    No. 52815.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, William O. Sawyers, Jr., Special Asst. Atty. Gen., St. Joseph, for respondent.
    Robert A. Mcllrath, Flat River, for appellant.
   HIGGINS, Commissioner.

Appellant, charged by information with the felony of stealing property having a value in excess of $50, was convicted by a jury which assessed his punishment at 6-months’ imprisonment in the county jail. Sections 560.156 and 560.161, V.A.M.S. Sentence and judgment were rendered accordingly.

Appellant does not complain of the sufficiency of the evidence and a brief statement demonstrates that the state made a case.

Clyde Henry Klob, a policeman of the City of Fredericktown, Madison County, Missouri, was on duty from 11:00 p. m., Saturday, June 11, 1966, to 7:00 a. m., Sunday, June 12, 1966. Sometime after 11:00 p. m. he discovered several rolls of woven wire fencing scattered in the alley behind Thai’s Locker Plant. “I drove around looking to see if I could see anyone and I went out West Main here and I seen a bunch of fellows over in front of Miner’s Lumber Company across from the VFW * * * Bob Moser, Tiny Gregory, J. Stephens, Larry Cooper, Gene Kemp, and two or three others that I did not recognize.” Later, he saw “an automobile going out of the alley * * * there was some wire in the back end of it.” The car went over a hump and three rolls of wire fell from the trunk of the car. He stopped the car and found the driver to be Bob Moser, the appellant. He was accompanied by Gene Kemp. The car, a 1957 Chevrolet, belonged to Larry Gregory. Appellant told Officer Klob he would take the wire back where he got it but, although Officer Klob returned to Thai’s Locker Plant, he did not again see appellant. He reported these incidents to N. F. Whitener, Sheriff of Madison County.

Wilbur George Oberman observed the car driven by appellant as it came from the alley behind Thai’s Locker Plant loaded with wire. He also saw that car as it was followed by Officer Klob. This occurred between 5:30 and 6:00 on the morning of June 12, 1966.

Sheriff Whitener saw appellant later on June 12, 1966, at Tiny Gregory’s house, five miles south of Fredericktown. “There was some wire laying by Tiny’s house and Tiny and Bob Moser and Tiny’s wife was standing out to the side of the house. * * * there were six rolls of wire laying there” between Tiny Gregory’s 1957 Chevrolet and the house. At the sheriff’s direction appellant loaded three 20-rod rolls of 39-inch woven wire into the car and drove into town where he unloaded it at Thai’s dock. The sheriff and appellant went from there to the jail.

C. W. Thai had stored wire on the “alley side” of his premises in Fredericktown for fifteen years. Each roll of 39-inch wire cost $19.75. On June 11, 1966, he had ten or fifteen such rolls of wire on his premises.

Larry Gale (Tiny) Gregory lived about five miles from Fredericktown. On June 11-12, 1966, he had been with Bob Moser, Gene Kemp, and J. Stephens at the VFW where at least he and Bob Moser had had something to drink. They left the VFW when it closed at 1:30 a. m. They left the VFW in Gene Kemp’s car and drove around for awhile. Later they loaded four rolls of wire into the Kemp car and Gene Kemp drove it to Tiny’s house. Jay Stephens followed them in his car and, while they were all at Tiny’s house, Tiny joined Jay and they went to eat breakfast. Before they left, Bob Moser borrowed Tiny’s 1957 Chevrolet. When Tiny returned to his home there were more than four rolls of wire on his premises — there were “approximately ten rolls” of wire.

Gene Kemp told how he, Bob Moser, and Tiny, beginning about 2:00 a. m., took one load of wire “out to Tiny’s” in his car arid how he and Bob Moser, using Tiny’s car, took a second load to Tiny’s. They were on their third trip with a load of wire when stopped by Officer Klob.

Robert Lee Moser testified in his own behalf and stated that he and Gene Kemp took one load of four rolls of wire to Tiny Gregory’s house in Gene’s car. He also admitted taking a second load of four or five rolls, using Tiny’s car, and being stopped by Officer Klob while in the process of taking a third load of five rolls of wire.

Both Gene Kemp and Robert Lee Moser denied they were stealing, their theory being that they “were taking care of this wire until (they) found the rightful owner.”

Appellant contends the court erred in allowing the prosecuting attorney to ask the defendant and Gene Kemp, also charged with stealing this wire, “questions that had not been gone into in the direct examination or in no way referred to in direct examination.”

The objection at trial to the cross-examination of Gene Kemp was “It’s immaterial ; it doesn’t prove or disprove anything,” and appellant is not entitled to review on a different theory.

During the cross-examination of the defendant, the prosecuting attorney asked:

“Q Mr. Moser, you had seen Officer Klob earlier that evening, had you? A Yes, sir. Q He had mentioned to you and a couple of fellas you were with out here in front of the VFW—
“MR. McILRATH: Wait a minute, don’t answer yet. Go ahead.
“MR. GRAHAM: He had told you and a couple of fellas you were with out in front of the VFW that this wire was down there ?
“MR. McILRATH: Now, wait a minute. I’m going to object to that; I didn’t go into that on direct examination. THE COURT: Overruled.
“MR. GRAHAM: You may answer. A Yes, he came by.
“MR. McILRATH: I want to ask that answer be stricken and the Jury told to disregard it. This is the Defendant. It wasn’t gone into on direct examination. THE COURT: Overruled.
“MR. McILRATH: I want to ask the Jury be discharged and a mistrial declared. THE COURT: Request is denied. MR. GRAHAM: You can answer that. MR. McILRATH: He’s already answered. A I already answered. MR. GRAHAM: What was your answer ?
“MR. McILRATH: I want to object to that; it’s repetitious. He answered it. THE COURT: Overruled. Now, let’s proceed in a more orderly fashion. What was your answer? A Yes, sir; he came by and told us.
“MR. McILRATH: I want to again ask that that be stricken, — I have to keep my record straight — and the Jury be discharged. It was not part of the direct examination and this is the Defendant. THE COURT: Denied. * * *
“Q Had you been drinking together at the VFW? A What? MR. McIL-RATH: Now, wait a minute. Please don’t answer — A No, sir.
“MR. McILRATH: — when I object. That wasn’t gone into on direct examination. THE COURT: He’s already answered. * * * MR. McILRATH: I want to ask the answer be stricken and the Jury told to disregard it. THE COURT: Denied. MR. GRAHAM: Do you know — MR. Mc-ILRATH: Wait a minute, please, till I finish this record. I want to ask the Jury be discharged' and a mistrial declared. THE COURT: Denied.”

Section 546.260, V.A.M.S., provides that a defendant who testifies in his own behalf “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case * * *; ” and under this section “the state is not confined to a ‘categorical review’ of the matters covered or stated in the direct examination of a defendant, but that the cross-examination may cover all matters within the fair purview of the direct examination. * * * If the defendant in chief in a general way refers to a subject, he may be examined in detail as to that subject.” State v. Scown, Mo., 312 S.W.2d 782, 786—787[2].

There was evidence that defendant, Tiny, Jay Stephens, and Gene Kemp were at or near the VFW when Officer Klob came along and questioned them about tires and wire scattered over the alley. Defendant in his own behalf also testified as to the scattered wire. The inference attempted was that someone else had scattered the wire and that defendant and Kemp merely collected it for safekeeping after they were confronted by Officer Klob while standing outside the VFW. Under such circumstances the prosecutor’s questions were within the purview of detailed examination of matters covered generally by the direct examination.

Assuming, arguendo, that the matters upon which defendant and his witness were questioned were not strictly within the scope of their direct examination, cross-examination as to matters not referred to in chief is not grounds for reversal unless material or prejudicial to accused’s substantial rights. State v. Pierson, 331 Mo. 636, 56 S.W.2d 120, 123[5],

Appellant himself removes any vestige of materiality from the questions by his statement that any evidence “with regard to drinking or the VFW Hall would certainly be collateral, irrelevant, and immaterial at best”; and his arguments that they were prejudicial because “Madison County is a notoriously dry county, and questions about drinking could have only been propounded by the Prosecuting Attorney with the intention of prejudicing the Jury against the Defendant. * * * and (that) the VFW Hall is considered by many citizens as the local distributor for OLD LUCIFER, all to the detriment of those who might have repaired thereto for any period no matter how short, or any purpose no matter how noble” are in no way supported by the record.

Review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the information is in proper form and sufficient; defendant was accorded a jury trial upon his plea of not guilty; the verdict is proper and responsive; the punishment is within legal limits; the motion for new trial was considered; and allocution was granted.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HOUSER, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Victor LAWRENCE, Appellant.
    No. 52895.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Special Asst. Atty. Gen., Pacific, for respondent.
    Theodore F. Schwartz, Clayton, for appellant.
   HOUSER, Commissioner.

Victor Lawrence, charged with and convicted of second degree burglary, § 560.045, RSMo 1959, V.A.M.S., under the Habitual Criminal Act, and sentenced by the court to 5 years’ confinement in the penitentiary, has appealed.

These are the facts: Unice Sanders, occupant of a four-room cottage located at 1612 North 18th Street in the City of St. Louis, went to bed at 10 o’clock p.m. on July 3, 1966 with her front and back doors and windows secured. The night latches on the doors were locked. The windows were open but there were screens in the windows. The screens were “locked or tacked,” that is, the screens were fastened into the windows with tacks. The next morning Mrs. Sanders was awakened at 7 a.m. at which time she found the doors open, a 2-inch piece of tin which had been nailed over a hole just above the doorknob off the door and the screen off the front window. Shortly after daybreak, between 5 and 6 a.m., Mr. Perryman, a neighbor, observed defendant take a screen off one of the windows of the Sanders house and saw him climb through the window and go inside the house. He “tore the screen off the window.” This took 2 or 3 minutes. When he began to work on the screen the neighbor telephoned the police, who came shortly thereafter. Another neighbor, who had seen defendant looking into the Sanders house earlier, hearing the police siren, looked toward the Sanders house and observed defendant run out through the back door of the house. When the police arrived defendant was coming out of the alleyway. A policeman told him to “hold it,” Mr. Perryman identified him and defendant was arrested.

Defendant makes two points. First, he seeks a reversal of the judgment on the ground that the court erred in not directing his acquittal because as a matter of law the evidence proved that the offense was first degree burglary, not second degree burglary; that the evidence was insufficient to sustain a conviction of burglary in the second degree. This point is without merit. Criminal Rule 26.06, V.A.M.R. provides that “A defendant in any criminal case shall have no just cause for complaint because * * * (2) the evidence showed or tended to show him to be guilty of a higher degree of the offense than that of which he was convicted.” The evidence was sufficient to sustain a conviction of burglary in the second degree. State v. Wilson, 225 Mo. 503, 125 S.W. 479.

Defendant’s second point relates to a statement made by the assistant circuit attorney in final argument to the jury. Defendant took the stand and testified in his own behalf. He indicated that he had been nightclubbing in East St. Louis; had been let out near the scene of the crime, and was on his way to his mother-in-law’s house when the police arrested him, and that he was arrested because of his past convictions. In his direct examination and again on cross-examination it was elicited that he had pleaded guilty to burglary and stealing in November, 1960, and thereafter had pleaded guilty to stealing from a dwelling house and had been sentenced to 2 years in the penitentiary on account of each conviction. In his final argument the assistant circuit attorney, after speaking in a disparaging manner about the defendant’s “story” said: “That burglary conviction and other convictions were brought out solely and only for impeachment purposes, which is a lawyer’s word, ‘impeachment’; that was the only .purpose. It is applied to his credibility. Who do you believe? Do you believe this man who has manifested dishonesty in the past — .” At that point counsel for defendant interrupted with an obj ection, and a request that it be stricken, a mistrial declared, and the jury discharged. The court sustained the objection but refused to declare a mistrial.

Defendant contends that this amounted to a general attack on the character and reputation of the defendant when the defendant had not put his character and reputation in issue, citing State v. Mobley, Mo.Sup., 369 S.W.2d 576, 580, and State v. Slay, Mo.Sup., 406 S.W.2d 575, 580, for the proposition that where prior convictions have been presented to the jury for the purpose of affecting the defendant’s credibility the final argument of the state should be carefully confined to that purpose and subject.

The transcript plainly shows that the final argument of the assistant circuit attorney was confined to the question of the defendant’s credibility as a witness. His inquiry of the jury whether they believed this man “who has manifested dishonesty in the past” was an inquiry relating to his credibility in the light of his background — which must have been understood as a reference to his previous convictions of burglary and stealing — and not a general attack upon his character and reputation nor an effort to procure a conviction in the case on trial on the basis that he had been previously convicted. Defendant’s background and previous convictions may properly be weighed in determining what type of an individual he is and whether he is credible. State v. Duisen, Mo.Sup., 403 S.W.2d 574 [9]. Of course, as stated in that case, 403 S.W.2d, l.c. 578, "any comment [or we may add any inquiry] concerning the credibility of the defendant may indirectly have some bearing on his character, but when the comments are proper as comments on credibility, * * * defendant cannot complain that * * * the properly received information may affect other areas of consideration.” In this connection see and compare State v. Mitchell, Mo.Sup., 86 S.W.2d 185 [5] and State v. Jones, Mo.Sup., 221 S.W.2d 137 [4]. It is elementary that a convicted burglar and thief is a dishonest person and it reasonably may be argued that that type of person, with that kind of background, is not worthy of belief.

We have examined the amended information, verdict, judgment and sentence and find them proper and sufficient in form and substance. Defendant was arraigned and pleaded not guilty. He was accorded trial by a jury and was present throughout the trial, at the time the verdict was received from the jury, and at the time of judgment and sentence. Allocution was accorded defendant. The verdict is responsive to the issues; the punishment is within the legal limits and the trial court considered the motion for new trial.

Finding no error, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    Fred S. CHAPPELL and Edna E. Chappell, husband and wife, Emerson and Helen M. Taylor, husband and wife, John and Vivian Jackson, husband and wife, Bessie Hutchinson, a single person, and Charles and Ruth V. Hutchinson, husband and wife, Appellants, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Respondent.
    No. 52229.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      White & Dickey, Turner White, Springfield, Theodore G. Scott, Buffalo, Lincoln, Haseltine, Forehand & Springer, Horace S. Haseltine, Carl E. Yates, Springfield, for appellants-plaintiffs.
    John B. Newberry, Springfield, for defendant-respondent.
   STOCKARD, Commissioner.

This appeal arises from the trial of two consolidated actions in each of which the plaintiffs by their Count I sought actual damages from the City of Springfield for the operation of a nuisance in connection with its sewage disposal plant, and by their Count II sought punitive damages for the willful and malicious failure of the city to abate the nuisance. The trial court directed a verdict against plaintiffs on Count II. A jury trial as to Count I resulted in a verdict in favor of plaintiffs in the aggregate amount of $20,000. The plaintiffs filed a motion for new trial as to Count II, and the city filed a motion for new trial as to Count I. The trial court entered this order: “Defendant’s motion for new trial sustained on grounds of error in plaintiffs’ verdict directing instruction and damage instruction.” Plaintiffs’ motion for new trial as to Count II was overruled by operation of law at the end of ninety days. Plaintiffs have appealed from the order granting a new trial as to Count I, and also from the order directing a verdict as to Count II.

Plaintiffs assert that the trial court’s order granting a new trial failed to comply with Civil Rule 78.01, V.A.M.R., in that it failed to “specify of record the ground or grounds on which said new trial is granted.” Plaintiffs’ verdict directing instruction was Instruction 3, and the damage instruction was Instruction 4. Both instructions were challenged in the city’s motion for new trial. We think the trial court’s order did fail to specify the grounds on which the new trial was granted within the meaning and intent of Civil Rule 78.01, V.A.M.R. However, Civil Rule 83.06, V.A.M.R., provides that when a trial court grants a new trial without specifying of record the ground or grounds therefor, the presumption shall be that the trial court erroneously granted the motion and the burden of supporting the court’s action is placed on the respondent. Provision is made in this situation that the appellant may, by filing timely demand, require the respondent to file the original brief. Plaintiffs did not avail themselves of that procedure in this case. In its brief the city accepts the burden of supporting the trial court’s action in granting a new trial.

The city asserts that Instruction 3 was erroneous because it submitted in the disjunctive that the city “permitted vile odors to escape from its sewage disposal plant or sludge beds, sludge lagoons, sludge trucks, or deposits of sludge on and off its plant” when the “record is totally lacking in any evidence that the city * * * had ever used a sludge bed, or that it had ever used a sludge lagoon, or that its sludge trucks in any way caused -an odor.” The city also asserts that Instruction 4 was erroneous because it was “purportedly taken from the Missouri Approved Instructions,” MAI 4.01, but that the last phrase of the form of that instruction was left out. These challenges to the instructions were included in the assignment of errors in the city’s motion for new trial. Such errors, if they exist, are errors of law, and do not constitute a discretionary basis for the granting of a new trial.

In view of the fact that the order granting a new trial must be affirmed because of the error in Instruction 4, we need not on this appeal rule the alleged error attributed to Instruction 3. The language of Instruction 3, as such, is not challenged. The only assertion of error is that portions of the disjunctive submission are not supported by evidence. If that is true, the evidence at the new trial may be sufficient, or plaintiffs may elect not to include some of the submissions now contained in the instruction.

'We turn now to Instruction 4, which was as follows:

“If you find the issues in favor of the plaintiffs on one or more of plaintiffs’ claims, then you must award such plaintiffs such sum or sums as you believe will fairly and justly compensate such plaintiffs for any damages you believe they sustained. (MAI No. 4.01 Modified).”

Following the word “sustained,” as set out above in Instruction 4, MAI No. 4 contains the words, “as a direct result of the occurrence mentioned in the evidence.” This qualifying phrase was left out (plaintiffs say unintentionally) of Instruction 4 as given to the jury. The city contends that this omission was prejudicial error because it permitted the jury to allow damages “for anything the jury believed they [the plaintiffs] might have sustained, whether such damages were a result of the occurrences mentioned in evidence or not.”

Plaintiffs argue that this “technical error” in Instruction 4 was not prejudicial because in Instruction 3, plaintiffs’ verdict directing instruction, the fourth required finding was as follows: “Fourth, as a direct result thereof, plaintiffs sustained damage.” However, we conclude that this case is governed and ruled by Brown v. St. Louis Public Service Company, Mo., 421 S.W.2d 255, a decision by this court en banc. There, the phrase omitted in this case was included in the instruction, but in that phrase the word “direct” before the word “result” was omitted. Such omission was held to constitute prejudicial error, and the order granting a new trial was affirmed. As to the contention made by plaintiffs that the fourth clause of Instruction 3 prevented the omission of the phrase from being prejudicial, this court in the Brown case ruled as follows: “Likewise, we overrule plaintiffs’ contention that the absence of the word ‘direct’ in Instruction No. 6 is harmless error in view of the fact that Instruction No. 2, which was plaintiff’s verdict-directing instruction, required the jury to find that plaintiff sustained damages as a direct result of defendant’s negligence. In effect, a conflict between Instruction No. 2 and Instruction No. 6 was created.” Instruction 4 in the pending case authorized the jury to award to plaintiffs “any damages you believe they sustained,” and without the omitted qualifying phrase that is an erroneous measurement of damages.

Assuming the fourth required finding of Instruction 3 presented to the jury the proper measurement of damages, as contended by plaintiffs, then as was true in the Brown case a conflict was created. If it did not, the erroneous declaration in Instruction 4 remained unqualified. In either event, based on the ruling of the Brown case, the error was prejudicial and the trial court correctly granted a new trial for this reason.

Plaintiffs contend that in the event the order granting a new trial as to Count I is affirmed, they should be entitled to a new trial on Count II pertaining to punitive damages. It is doubtful that the evidence would authorize a finding of willful, wanton, malicious failure on the part of the city to abate the nuisance, but it is not necessary that we so rule. Even if the evidence in the record before us is not sufficient, since there must be a new trial as to Count I, it could be contended that the evidence on that new trial might authorize the submission of the issue of punitive damages, and therefore we should authorize a new trial as to Count II. However, to do this would at least indicate that this court considers punitive damages to be recoverable, when authorized by the evidence, against a municipality.

It is the general rule that in the absence of a statute specifically authorizing such recovery, punitive or exemplary damages are not recoverable against a municipal corporation. Bennett v. City of Marion, 102 Iowa 425, 71 N.W. 360, 63 Am.St.Rep. 454; City of Chicago v. Langlass, 52 Ill. 256, 4 Am.Rep. 603; Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419; Wilson v. City of Wheeling, 19 W.Va. 323, 42 Am. Rep. 780; Fisher v. City of Miami, Fla., 172 So.2d 455; Brown v. Deming, 56 N.M. 302, 243 P.2d 609; Rascoe v. Town of Farmington, 62 N.M. 51, 304 P.2d 575; Clarke v. City of Greer, 231 S.C. 327, 98 S.E.2d 751; Raplee v. City of Corning, 6 A.D.2d 230, 176 N.Y.S.2d 162; Michaud v. Bangor, 160 Me. 285, 203 A.2d 687; Desforge v. City of West St. Paul, 231 Minn. 205, 42 N.W.2d 633, 19 A.L.R.2d 898; McManus v. City of Madison Heights, 366 Mich. 26, 113 N.W.2d 889; Annotation 19 A.L.R.2d 903; Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1173, 1204.

In 1877 in the case of Hunt v. City of Boonville, 65 Mo. 620, this court ruled that while a municipal corporation could be liable for actual damages resulting from a trespass, it could not be held liable for treble damages under what is now Section 537.340, V.A.M.S. The court recognized that private corporations are answerable in exemplary damages for the willful and malicious acts of their agents done in the course of their employment, but, the court said, “we are inclined to think that a distinction should be drawn in this particular between private corporations, which are organized and conducted solely for the purpose of private and personal emolument, and public corporations, created by government for political purposes and exercising authority, delegated by the State, for the administration of the local and internal affairs of a city or town of a public character. There is respectable authority to the effect that a municipal corporation can not, as such, do a criminal act or a willful and malicious wrong and they cannot therefore be made liable for exemplary damages.” We are not able to find any later case in this state which has expressly ruled on the issue of whether a municipality is subject to punitive damages in the absence of a statute specifically authorizing such recovery. However, in Kelly v. City of Cape Girardeau, 338 Mo. 103, 89 S.W.2d 41, plaintiff sought actual damages for the overflow of his property alleged to have resulted from improper collection by the city of surface water and diverting it onto plaintiff’s property. Prior thereto plaintiff had obtained a judgment against the city in which the condition was declared to constitute a nuisance and its abatement was ordered, and in the action in which plaintiff sought actual damages he also sought punitive damages for the willful and wanton failure to abate the nuisance. Trial resulted in a verdict of actual damages in the amount of $20 and punitive damages in the amount of $135 on each of several counts. See Kelly v. City of Cape Girardeau, 228 Mo.App. 865, 72 S.W.2d 880, an opinion in the same case by the Springfield Court of Appeals. In neither the court of appeals opinion, supra, nor in the opinion by this court was there any discussion of whether a municipal corporation is subject to punitive damages, and apparently the issue was not before the court. In view of what was done in the Kelly case without discussion, which appears to be in conflict with the principles stated in the Hunt case and with the general rule, we conclude that we should reexamine the principles involved.

In State ex rel. United Factories, Inc. v. Hostetter, 344 Mo. 386, 126 S.W.2d 1173, this court said that it had “consistently sustained the award of punitive damages against a corporate defendant (private corporation) for the wrongful act of its servant or agent in the course or line of his employment when the evidence shows such wrongful act was done wilfully, wantonly or maliciously.” Care apparently was taken to show that the term “corporate defendant” referred only to a private corporation and not to a public or municipal corporation. Thus, subsequent to the Kelly case, by implication at least, this court recognized that private corporations and public corporations should be treated differently in respect to liability for punitive damages.

Punitive damages, in this state as in others, are awarded for the purpose of inflicting punishment for wrongdoing, and as an example and deterrent to similar conduct. Beggs v. Universal C. I. T. Credit Corporation, Mo., 409 S.W.2d 719; Polk v. Missouri-Kansas-Texas R. Co., 351 Mo. 865, 174 S.W.2d 176. They are not awarded as •compensation to plaintiff for the injuries or loss sustained by him. Compensation for actual injuries or loss is in the form of actual damages.

One of the principal reasons advanced by the courts why punitive damages should not be recoverable against a municipality, in the absence of specific legislative authority, is that to permit such recovery would contravene public policy. The reasoning is that since punishment is the objective, the people who would bear the burden of the punishment — the tax paying citizens — are the same group who are supposed to benefit from the public example which the punishment makes of the wrongdoer. In Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419, the court commented that the “wanton agent may become liable individually, perhaps on his bond if he have any, but to hold that the public can be visited with punishment for the willful and malicious acts of its servants would be to contravene sound public policy.” In McGary v. President & Council of Lafayette, (La.) 12 Rob. 674, 43 Am.Dec. 239, plaintiff sought actual and punitive damages against a municipality when its agents ordered the demolition of a building in violation of an injunction. Upon rehearing the court held that the municipality could not be held liable for punitive damages because “vindictive damages” can “never be allowed against the innocent” which would be taxpayers of the municipality. See the discussion of the public policy theory in 19 A.L.R.2d at p. 910, and the cases there cited. We conclude that the underlying justification and purpose of punitive damages, that is, the punishment of a wrongdoer, is not applicable when applied to a municipal corporation.

Another factor to be considered is the rule which permits evidence of the wealth of a tort-feasor as a measure of the amount of punitive damages which should be awarded. Brown v. Payne, Mo., 264 S.W.2d 341; Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43. “The theory is — the wealthier the wrongdoer, the greater the award. Otherwise stated, a relatively small sum might be adequate to punish a poor man. A much greater sum, for the same wrong, would be needed to punish a rich man. If this were allowed against municipalities, it would permit evidence of the unlimited taxing power as the measure of a proper verdict.” Fisher v. City of Miami, Fla., 172 So.2d 455. It has been suggested that punitive damages should be permitted to be recovered against a municipality without evidence of wealth, but as stated in the Fisher case, this would “completely eliminate the punishment element which is a prime justification for the award at the outset.”

The theory that punitive damages serve as a deterrent to others adds little justification for the award against a municipality. It is assumed that public officials will do their duty, and if discipline of a wrongdoing municipal employee is indicated, appropriate measures are available through the electorate, or by superior officials responsible to the electorate, without recourse to punitive awards through the courts.

We find no statute authorizing the recovery of punitive damages against a municipality in the factual situation we have here. Therefore, we conclude that insofar as Kelly v. Cape Girardeau, supra, implies that punitive damages are recoverable against a municipal corporation under the factual circumstances of this case, it is disapproved, and that this court should be aligned with the substantial majority which hold that, in the absence of a legislative pronouncement to the contrary, municipalities are not liable for punitive damages when sued for a wrong committed by an employee.

For the above reasons the judgment of the trial court directing a verdict for defendant as to Count II is affirmed; the order granting a new trial as to Count I is affirmed and the cause remanded.

BARRETT, C., not sitting.

PRITCHARD, C., concurs in part, dissents in part.

PER CURIAM:

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

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

DONNELLY, J., not sitting.


text:
    STATE of Missouri, Respondent, v. Raymond Joseph NOLAN, Appellant.
    No. 52728.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Jerome T. Bollato, Special Asst. Atty. Gen., St. Louis, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   STOCKARD, Commissioner.

Defendant, charged under the habitual criminal act, was found guilty by a jury of the offense of burglary, second degree, and stealing, and was sentenced by the court to imprisonment for ten years for burglary and five years for stealing, the sentences to run concurrently.

Although defendant does not challenge the sufficiency of the evidence, a brief statement of the facts will be helpful. About 8:00 o’clock of the evening of December 27, 1965, a neighbor of Mr. and Mrs. Paul Kochan called the police when he saw moving lights in their house. When the police arrived defendant and a companion ran from the front door of the house and were arrested. Another companion was arrested in the house. Entrance had been gained by prying open a window. An electric razor and a wristwatch which belonged to Mr. Kochan were found in the possession of one of defendant’s companions, and a television set, some clothing, a vacuum sweeper, a typewriter and other articles had been piled near the front door.

When a police officer proposed to testify concerning oral statements made by defendant, a hearing before the court and out of the presence of the jury was held at defendant’s request to determine whether the oral statements were voluntarily made. At this hearing Officer Moore testified that in his presence Officer Sanders (who was not available as a witness because of a death in his family) told the defendant that “he could talk to an attorney or friend, make a phone call, that was his right; that he did not have to make a statement, that it could be used against him in court.” Officer Seguin also testified that immediately after defendant’s arrest, he advised defendant that “he didn’t have to say anything if he didn’t wish to.” Defendant did not testify and presented no evidence at this hearing, and the only evidence concerning the vol-untariness of the oral statements of defendant was that related above.

Defendant’s first point is that Officer Sanders did not make it clear to him that he had a right to counsel before making an oral confession, and therefore, the court erred in receiving evidence of his oral statements.

This case was tried after the decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and before the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. The requirements of the Miranda case are not retroactive, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, and although the principles of the Escobedo case do apply, appellant does not cite that case and apparently does not rely on it. Under the factual situation, we are of the opinion that it has no application. In this case there is no evidence whatever that defendant had a lawyer when questioned by the police, or that he wanted a lawyer, or that in any way he was denied the right to have a lawyer present or to confer with one prior to talking to the police.

Defendant’s argument is that when he was advised as above set out he “did not realize the legal effect of an oral statement” and believed he could orally confide in the police officers as evidenced by the fact that he told the officer, after the above information was given to him, that he would be “glad to tell * * * what happened, but he would not make a written statement.”

We cannot agree with the inference defendant now attempts to place on his willingness to make an oral statement. Nothing the police officers told him could reasonably have caused that impression. He was told that he could talk to an attorney or a friend before making a statement, that he did not have to make any statement, and that if he did it could be used against him. This reference to a statement obviously referred to any statement, oral or written. In addition, even if this contention had some merit, which it does not, the point was not assigned as error in defendant’s motion for new trial, and the issue is not preserved for appellate review. State v. McCrady, Mo., 416 S.W.2d 175, 177.

Defendant’s second point is that his oral statements were erroneously admitted into evidence because there was no testimony “that no threats of harm or promises of worldly advantages were made to him as an inducement to obtain the confession.” Defendant’s contention is that the burden of proving an in custody statement to be voluntary is on the state, citing State v. Williams, Mo., 369 S.W.2d 408, and that a statement made as the result of threats or promises is inadmissible on the basis that it is involuntary. State v. Smith, 354 Mo. 1088, 193 S.W.2d 499. We do not disagree with these principles, but at the hearing before the court on the issue of the voluntariness of the confession there was no evidence whatever of threats or promises. The testimony of Officer Moore as to what Officer Sanders told defendant purported to include all that Officer Moore heard. Therefore, the reasonable inference from the evidence is that no threats or promises were made. In order for the state to meet its burden, it is not required that it negative every possible circumstance which, if developed, could present an issue of fact as to whether the confession was voluntary. It was sufficient for the state to present a prima facie showing of voluntariness, which it did in this case, and if defendant contended that there were special circumstances which would result in the confession being involuntary, it was incumbent on him to present evidence in support of his contention.

We note that defendant’s second point was not presented as an assignment of error in his motion for new trial. We have discussed the merits of these two points to demonstrate that there is no occasion to consider whether plain error was involved within the meaning of Criminal Rule 27.20, V.A.M.R.

The trial court made a finding, based on the evidence presented to it, that the oral statements were voluntary. No other conclusion could reasonably have been reached from the evidence. There was compliance with the procedure required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, and the finding by the court that the oral statements of defendant were voluntary, was not only justified, but was required by the evidence.

Defendant’s next point pertains to a gratuitous remark of Officer Seguin, a witness for the state, during direct examination. Officer Seguin had testified concerning the arrest by him of defendant’s companion. He also testified that he saw an automobile in front of the house. When asked what kind of an automobile it was, he replied: “I saw a ’65 Pontiac, blue color. I would recognize the car previously as belonging to somebody else, but a police character owned the car.” The trial court sustained defendant’s objection to the answer, and at defendant’s request the court instructed the jury to disregard “the last part of the witness’ answer.” The trial court denied defendant’s request that a mistrial be declared, and it is of this ruling that defendant now complains. He asserts that it constituted an abuse of discretion on the part of the trial court.

Every error which might occur in the trial of a case does not necessarily require the granting of a mistrial, State v. Camper, Mo., 391 S.W.2d 926, 927, which is a drastic remedy that “should be exercised only in extraordinary circumstances.” State v. James, Mo., 347 S.W.2d 211. Stated another way, a mistrial should be granted only where the incident is so grievous that the prejudicial effect can be removed no other way. For this reason the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who observed the incident giving rise to the request for a new trial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal short of a mistrial. State v. Camper, supra, at p. 928. The function of an appellate court in the situation before us is to determine whether, as a matter of law, the trial court abused its discretion in refusing to declare a mistrial.

The objectionable remark of the witness was gratuitous in that the question asked of the witness did not call for that part of the answer. Also, it is somewhat ambiguous, and it does not necessarily indicate that defendant was a “police character.” It is recognized that in some situations an error in admitting improper evidence may be such that the prejudicial effect cannot be removed by instructing the jury to disregard it. State v. Benson, 346 Mo. 497, 142 S.W.2d 52; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. However, in other situations the prejudicial effect can be removed in that manner. See for example, State v. Holmes, 316 Mo. 122, 289 S.W. 904; State v. Camper, supra. Under all the circumstances in this case we do not consider the gratuitous remark to be of the nature that the trial court would not be entitled to an exercise of discretion in determining the measures required to remove the prejudicial effect. The court was in a far better position than we are to determine the remedial measures required, and we cannot say, as a matter of law, that in the circumstances we have here it erred in refusing to take the drastic step of declaring a mistrial and discharging the jury.

Defendant’s last point is that the trial court erred in refusing his requested Instruction A which was as follows:

A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, a Defendant has the right to rely upon a failure of the prosecution to establish such proof. A Defendant may also rely upon evidence brought out on cross-examination of witnesses for the prosecution. The law does not impose upon a Defendant the duty of producing any evidence whatsoever.”

Defendant asserts that he was entitled to have the jury informed that he “could rely on a lack of evidence.” This is another way of saying what was told the jury by Instruction 6, a cautionary instruction in the usual form pertaining to the presumption of innocence and reasonable doubt. In Instruction 6 the jury was told that the law presumes the innocence and not the guilt of defendant, and that unless the evidence in the case, taken as a whole, satisfied the jury of defendant’s guilt beyond a reasonable doubt they should acquit him. Instruction A purports to tell the jury that reasonable doubt may arise from a lack of evidence, or from testimony given on cross-examination. This, and the statement that defendant has no duty to present evidence, constitutes argument as to what may bring about a reasonable doubt. Defendant is not entitled to have the court argue his case in the form of an instruction. Defendant also argues that Instruction A was a converse instruction, but he does not indicate what it was intended to converse. We consider it to be a form of a cautionary instruction, argumentative in form, and properly refused by the trial court.

The review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the information is sufficient, that defendant was present and represented by counsel throughout the trial, that the jury verdict is in proper form and is responsive to the issues, that the punishment is within legal limits, and that allocution was granted.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Albert BOOTH, Appellant.
    No. 52660.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, W. Scott Pollard, Special Asst. Atty. Gen., St. Louis, for respondent.
    Raymond A. Bruntrager, St. Louis, William L. Mason, Jr., Galena, for appellant.
   SEILER, Judge.

This case involves the question of whether testimony by a drug addict who had taken three injections of heroin of unspecified strength and size within a period of twelve hours, the last about fifteen minutes before the occurrence of the events to which he testified, constitutes substantial direct testimony that the defendant feloniously shot the deceased. We conclude it does under the facts before us and affirm the judgment.

Defendant was convicted of murder in the second degree of James Bailey and appeals. Since defendant was also charged with three previous stealing convictions, with imprisonment, which were found as a fact by the court outside the hearing of the jury, the punishment was determined by the trial judge, who sentenced defendant to imprisonment for life, Sec. 556.280, RSMo 1959, V.A.M.S.

The state’s case was as follows: Robert Leo Vaughn, age 22, the state’s first witness, had been addicted to heroin for about two years. He and the deceased, age 26, also a heroin addict and a close friend, would steal personal property to raise money for heroin. Sometimes they bought heroin from the defendant. Vaughn took the heroin directly into the vein in his arm, “mainlining” as he called it. The heroin was in the form of powder, to which was added water and heat. The resulting solution he would inject with a needle and syringe. He showed the jury his right arm, on which there was a blue line, extending from elbow to wrist caused, he said, from “about a thousand” such injections. He said one injection cost about $20 and he would take four or five a day. As indicated, there was nothing in the record as to the amount in an injection or its strength or purity. Vaughn testified that for the last four months before testifying' he had been a patient at State Hospital No. 1 in Fulton for cure of his addiction and that he had had no narcotics for the last five months.

About a week before the shooting, Vaughn said defendant told him to “leave [Bailey] alone because he is a snitcher” to the police and F.B.I. Vaughn and Bailey used to take defendant with them on their stealing, but stopped doing so, to which defendant objected.

In the afternoon of January 10, 1965, Vaughn woke up around four o’clock and took his first shot of the day. Then Vaughn, Bailey and a woman, named Pat Townsend, age 25, with her two children, drove across the river to Collinsville, Illinois. There Bailey, Townsend and the children entered a department store. Bailey returned to the car in a few minutes, and showed Vaughn a handful of rings he had stolen. Vaughn and Bailey returned to St. Louis, to a house at 4259 Finney, where Bailey bought some powdered heroin from one Roosevelt Sain, and Bailey and Vaughn each took a shot of heroin in the arm. This was about 6:30 or 7:00 p.m. While Bailey and Vaughn were there, defendant Booth, Perry Pitchford, Fred Parker and a man called Junko also entered. Bailey had the rings in his hand and he and Parker talked about them. After about two hours Vaughn and Bailey went to Vaughn’s house, where Pat Townsend again appeared. As they started to leave to get something to eat, the police arrested Bailey and Townsend. Townsend was released and she and Vaughn procured a bondsman for Bailey, who was released around 2:00 a.m. Then they returned to 4259 Finney so Bailey could buy some more heroin. Vaughn and Bailey went inside. Townsend stayed outside in the car.

Around 3:00 a.m., there were seven men in a living room about 12 ft. x 14 ft. in size on the first floor of 4259 Finney, including defendant, Vaughn, and deceased. Vaughn had had a shot of heroin about fifteen minutes earlier and “had already taken off.” According to Vaughn, he was seeing things clearly, all his senses were heightened, and this is what happened:

Fred Parker was lying on a couch. The defendant was sitting in the corner. Earl Davis was sitting in a chair in the opposite corner. Milton Gulley was opening the door. James Bailey was sitting on the couch, by Parker’s head. Vaughn sat down at a table and picked up some cards. After about fifteen or twenty minutes the defendant said to Bailey “Give me those rings.” Bailey said, “No.” Defendant said, “Don’t make me kill you about those rings. Give them to me.” Then, in “a couple seconds,” Vaughn heard a shot, which came from near the direction of defendant. By this time both defendant and Earl Davis were standing by a stove. Vaughn saw a forty-five gun in defendant’s hand. In a few more seconds, there was a second shot, fired by defendant, standing, at Bailey, who was then standing at the corner, over the couch, by the window, about ten or twelve feet separating defendant and Bailey. Vaughn heard Bailey say, after the first and before the second shot, “Earl, you done shot me in my leg” and grab his leg. According to Vaughn, Bailey had nothing at any time in either hand, but grabbed his leg again with his right hand after the second shot. Vaughn testified he saw defendant fire a third and fourth shot at Bailey. Bailey had fallen on the couch and defendant took a step forward, aimed at the head, fired and Bailey fell over on the floor. Bailey made no move toward defendant at any time. The only thing he said to defendant was, “You don’t have to do this.”

Shortly after the shooting, Vaughn heard Fred Parker say that “Everybody in here seen Bailey with that pistol” and when they all came back in the room a few minutes later he (Vaughn) saw a small pistol, twenty-two caliber, at the finger tips of Bailey’s right hand. Vaughn had seen this pistol in Milton Gulley’s possession a few days earlier. Roosevelt Sain removed the pistol, saying he “wasn’t going to allow that”. Several of them took Bailey to the hospital, where he died on the operating table. The autopsy showed gunshot wounds of the right cheek, right elbow, lower portion of right chest, left shoulder, two of the left cheek and an exit wound in the back of the head. There was no wound in the leg.

Later Vaughn saw the rings in defendant’s possession and defendant wearing the ring deceased had on his finger at the time of the shooting.

The police found three spent “pellets” (caliber not determined) in the room and four forty-five cartridge casings. Defendant was arrested around 8:00 a.m., January 11, after having telephoned the police where he could be found, and at the time of arrest turned over a forty-five Colt automatic to the police. There was no evidence of comparison tests, if any, between .the recovered pellets and casings and the gun produced by defendant.

Pat Townsend, who had known Bailey for about twelve years and had been living with him for the last three months before the shooting, testified she was waiting outside in the car, heard five shots and in about seven minutes Vaughn came out with the others. She went in the house with Vaughn and Sain. She saw Bailey on the couch and floor, in his right hand a gun, which was removed by Sain with the statement, “It’s a damn shame. I can’t let this go down like this.” She testified she had known Vaughn about five months, that she did not take narcotics, but had seen Vaughn and Bailey shoot heroin in the vein, that she observed the way Vaughn walked, talked and his conduct on January 10 and 11; that he was his ordinary self, in control of his faculties, not irrational; that when he took nar- . cotics he “would go in a nod, looked like he was going to sleep”; that he would “go in his nod” within three or four minutes, have his head down, and “he looks like he is sleeping, but he don’t be sleeping”. She had talked to him many times when he was in this state, that he answered her and “talked in his normal sense”.

On this aspect of his addiction Vaughn testified that the effect of a shot of heroin on him was that it “makes your wits sharper and you see things clearly”, that he did not see things that were not there, that he was well aware of things goihg on around him and that the effect generally lasted three or four hours.

Vaughn was cross-examined thoroughly, but was not shaken on the details of the shooting, although counsel did obtain an admission the witness told a good friend, one John Charleston, he (Vaughn) was so under the influence of narcotics he did not know what happened, which statement the witness said on the stand was a lie. Vaughn also admitted five felony convictions.

Roosevelt Sain was called as a witness by the state, which sought unsuccessfully to examine him as a hostile witness. On cross-examination by defendant’s counsel, he testified he saw the deceased pull a gun on defendant, following an argument, and after the first shot by deceased, the witness ran out of the room. He denied the statements attributed to him by Vaughn and Townsend. Fred Parker and Milton Gulley were called by the state, but failing to obtain permission to examine them as hostile witnesses, on the basis of their testimony at the coroner’s inquest, the state did not question them further.

The defense was self-defense. For the defendant, Fred Parker testified he was asleep on the couch and was awakened by arguing between Bailey and defendant. Bailey pulled out a pistol and fired at defendant and the witness ran out of the room. Parker said on cross-examination his record was “as long as you can make it” and that “I’m guilty of all of it”. He had known defendant for twenty years.

Milton Gulley testified to the argument between defendant and Bailey and seeing a pistol in Bailey’s hand. Gulley heard one shot and he, too, ran out the door. He had been convicted in 1956 of drug addiction.

Defendant and Earl Davis did not testify. Defendant’s wife testified she had lived with Vaughn for two and a half years, had a child by him, but left him to marry defendant at a time when Vaughn was confined in the workhouse. She said Vaughn said he was going to get even with her and threatened defendant. She also said Vaughn told her he was in the toilet “nodding” when the shooting occurred, that he “had just taken off”.

Defendant contends there is no substantial direct evidence in the case that defendant shot the deceased, because the only direct evidence on this point is that of Robert Vaughn, but this, says defendant, is not substantial evidence because Vaughn had been a drug addict for two years, was under the influence of a dose of heroin at the time of the events testified to, that everybody knows a drug addict under the present influence of a dose of heroin is not competent to act rationally or accurately record mentally, but is subject to hallucinations which he may later recount as actual events and the court should therefore take judicial notice the evidence given by Vaughn was not substantial.

None of the cases cited by defendant supports the proposition contended for, although the statement is made in Gaddy v. State Board of Registration for the Healing Arts (Mo.App.) 397 S.W.2d 347, 355, that:

“ * * * it is common knowledge that narcotic drugs produce results other than the mere relief of pain and, in strange and diverse respects, influence and affect the reactions and judgment of users * * * »

The Gaddy case involved a doctor whose license was revoked. There was convincing proof of his addiction and the above quotation appears in the closing part of the opinion, where the court was pointing out that once the Board arrived at the conclusion the appellant was a narcotics addict the wisdom of its action in revoking his license could not be gainsaid, pointing out that if such people are a hazard on the highways, they certainly would be no less a hazard in the operating room. The question of appellant’s reliability as a witness was not discussed and in fact, some of appellant’s testimony was used against him as admissions, as substantial evidence of the fact admitted. The case is not authority for the proposition that we should take judicial notice here that the witness Vaughn’s testimony is worthless.

In Markowitz v. Markowitz (Mo.App.) 290 S.W. 119, 122, the court seemed to assume that the testimony of a drug addict was unreliable. However, expert testimony had been admitted as to the reliability of a witness who was a drug addict and the point before the court was whether admission of this testimony was error. The court held it was not, that it went to the credibility of the witness. This is not the point before us now.

We do not hold that the effects which defendant says accompany heroin addiction are of such universal and common knowledge that they can be recognized and accepted as true without proof, so that we should take judicial notice that the evidence given by the witness Vaughn was not substantial. In fact, most of the authority is the other way. See annotation, Use of drugs as affecting competency or credibility of witness, 52 A.L.R.2d 848, 859 and 97 C.J.S. Witnesses § 59b, p. 454. In People v. Williams, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 159 N.E.2d 549, with two judges dissenting, cert. den. 361 U.S. 920, 80 S.Ct. 266, 4 L.Ed.2d 188, the Court of Appeals of New York affirmed a conviction of selling narcotics where the testimony as to the actual purchase depended solely on the testimony of a witness who had been a heroin addict for five years, taking it intravenously, as a “mainliner”. Defendant sought to prove by a doctor (1) that mainliners addicted to heroin are unworthy of belief and (2) that, therefore, the witness was unworthy of belief. The opinion first declares it is not permissible for an expert to testify to the veracity of a particular witness and then holds (159 N.E.2d l. c. 554):

“ * * * after long and serious deliberation * * * we hold inadmissible expert testimony that narcotics addicts of the same type as a witness are unworthy of belief in the absence of a clear and convincing showing to the full satisfaction of the Trial Judge that such is the consensus of medical and scientific opinion. The reliability of such a thesis must be clearly established before a jury may be subjected to its influence.”

The court referred to Wigmore’s statement (3 Wigmore Evidence, 3rd Ed. Sec. 875, p. 368) that “There must first be proof of general scientific recognition that they [scientific methods of determining credibility] are valid and feasible.”

See also an earlier examination (1929) of the then existing authority on the subject by District Judge McDowell in Kelly v. Maryland Casualty Co. (D.C.W.D.Va.) 45 F.2d 782, involving a morphine addict and the effect of such addiction on a person’s reliability as a witness. The portion of the opinion setting forth the views of various authorities on the subject is too long to quote, but Judge McDowell came to the conclusion that, as of that date, there was no consensus of medical opinion to the effect that morphine addicts were usually abnormally untruthful in respect to matters not connected with their addiction.

Defendant is in effect asking us to declare the truth of his proposition without requiring evidence from defendant, contending that his proposition is one as to which he will not be required to offer evidence. This would be an application of judicial notice, Wigmore on Evidence, Vol. IX, Sec. 2565, pp. 531-532, which we do not believe is warranted. We therefore overrule defendant’s contention that we should hold a drug addict’s testimony under the facts before us, is, per se, incompetent and inadmissible.

This is not the first case where a conviction has depended upon testimony of a drug addict. As would be expected there are many such cases involving convictions for unlawful possession or sale of narcotics. But such convictions are not limited to narcotics cases. In Commonwealth v. Farrell, 319 Pa. 441, 181 A. 217, a murder conviction with a death sentence was upheld, where one of the important witnesses for the state was a confirmed opium user. In Commonwealth v. Price, 208 Pa. Super. 354, 222 A.2d 610, a conviction of arson was upheld where the only testimony implicating defendant was that of a convicted narcotics user, who was taking drugs at the time of the events to which he testified. See also United States v. Tannuzzo (C.A.2d N.Y.) 174 F.2d 177, conviction for transporting and conspiring to transport stolen fur coats in interstate commerce; Beland v. State, 86 Tex.Cr.R. 285, 217 S.W. 147, conviction for felony theft; People v. Nelson, 33 Ill.2d 48, 210 N.E.2d 212, conviction of murder.

Unless Vaughn’s testimony was clearly unbelievable or impossible under the facts and circumstances (and we cannot say it was), it was for the jury to decide how much credence to give Vaughn’s testimony. The fact of his addiction and that he had taken three injections of heroin, intravenously, within twelve hours or so, the last one only fifteen minutes before the events took place which he claimed he heard, saw, and remembered, was before the jury. Defendant’s counsel argued all this to the jury, emphasizing that Vaughn could not be believed, that no reliance could be put in what he said and that defendant should not be convicted on the word of a dope addict. Nevertheless, the jury evidently believed Vaughn’s testimony as to the shooting, as they had the right to do, and we cannot, therefore, say there is no substantial evidence on which to support the conviction.

Having overruled defendant’s contention that we should declare as a matter of law that the testimony of Vaughn is not substantial and cannot support the conviction, we need not reach defendant’s other contention, which is premised on the proposition that without Vaughn’s direct testimony, there is no substantial circumstantial evidence in the case that defendant shot the deceased.

Examination of the record as required by rule 28.02, V.A.M.R. shows no error.

Judgment affirmed.

All concur.

      . “The going New York City rate in 1965 for sufficient heroin for a single shot was reported as $15. House Hearings 264 (testimony of Robert F. Walsh, Assistant District Attorney of Kings County, New York). As a result of stringent law enforcement and inflated prices, heroin available for purchase by addicts is reportedly much more diluted than was true in the past * * * ‘[The] addict now, instead of getting a fairly pure heroin, which he did in the past, now gets a very much diluted version’ Id. at 117 (testimony of James P. Hendrick, Acting Assistant Secretary of the Treasury).”, from Narcotic Addiction, Criminal Responsibility, and Civil Commitment, Frankel, 1966 Utah L.R. 581, 587.

      . Of interest is the article by Drs. Fraser, Jones, Rosenberg and Thompson, on the staff of the National Institute of Mental Health, Addiction Research Center, Public Health Service Hospital, Lexington, Ky., entitled “Effects of Addiction to Intravenous Heroin on Patterns of Physical Activity in Man”, Clinical Pharmacology and Therapeutics, Yol. 4, No. 2, pp. 188-196 (1963), wherein they conclude as follows (l. c. 196):
      “Narcotic addicts consistently state that one of the important effects of narcotics is the production of a ‘drive.’ While this experiment confirms the existence of a temporary increase of activity which may be a reflection of such a ‘drive,’ it is short-lived and followed by depressed activity. The general clinical observations, the behavior and attitude of the patients, and their consistent per-formalice in the pursuit rotor tests indicate that the protracted reduced activity observed during addiction to heroin is not due to physical debility nor to psy-chomotor impairment, but to reduced responsiveness of the patients to ambient stimuli.”

      . For example in addition to People v. Williams, supra, see Brown v. United States (C.A.9th Cal.) 222 F.2d 293; Tobar v. State, 32 Wis.2d 398, 145 N.W.2d 782; People v. Sorrentini, 26 A.D.2d 827, 273 N.Y.S.2d 981; Commonwealth v. Davis, 183 Pa.Super. 347, 132 A.2d 408; Commonwealth v. Aikens, 179 Pa.Super. 501, 118 A.2d 205; People v. Hill, 83 Ill.App.2d 116, 227 N.E.2d 117; People v. Dixon, 22 Ill.2d 513, 177 N.E.2d 224.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Gerald D. PETERSON, Appellant.
    No. 53017.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Robert L. Carr, Special Asst. Atty. Gen., Potosí, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   EAGER, Judge.

Defendant was charged by information with the burglary of a liquor store in North Kansas City. He was not charged with stealing. Upon trial, the jury convicted him and fixed his punishment at a term of three years. He was represented at the trial by privately employed counsel, and he is so represented here. Upon this appeal the only point raised concerns the final arguments and we shall not need to state the evidence in detail. We may say here, however, that the record discloses that the defendant seriously contested the issue of his identity, as well as his guilt.

At approximately 2:30 a.m. on August 18, 1966, the front door of Laurie’s Liquor Store at 10th Street and Swift Avenue in North Kansas City was forced open. A burglar alarm sounded at police headquarters and three cars, these being practically the whole force on duty at the time, responded to the dispatcher’s call. Each car contained one officer. One, William Boyd-ston, saw a man running out of the front door and around the building; the man wore “dark clothing,” was approximately six feet tall and was “stocky.” The next officer, Edward L. Smith, stopped his car at the corner of the building and saw a “figure” run along the side of the building toward the street; the man wore dark clothing. The third officer, Sergeant Brant, approached the scene on Swift Avenue and as he did so a man ran out into the street toward his car; he put on his brakes and swerved to avoid hitting the man, and thus crashed his car into a light pole. However, he testified that the man ran in front of his car at a distance of perhaps one or one and one-half car lengths, that his lights shone on him, and that he saw his face; he identified the man very specifically as the defendant. It was also shown in the record that officer Brant recognized the man at the time as Peterson, this defendant, and so told the other officers. His means of knowledge was not asked or given. The wrecking of the police car caused some confusion and the fleeing man was not apprehended. The neighborhood was searched by the officers, and a car was spotted at the rear of a rooming house or apartment building (referred to as the “Palmer House”), which the police recognized as, or learned by radio to be, that of defendant. This car was kept under surveillance and, after perhaps an hour, a man entered the car. A nearby officer approached and the man drove hurriedly away without lights, despite an order from the officer to “hold it.” That officer definitely identified the driver as the defendant, whom he knew. The car narrowly missed another police car near the entrance of the driveway, “fishtailed” down the wet street, drove around a barrier and finally ran into a building, having been shot at several times in the interval by both of the officers. No one was in the car when the police got there. The officers agreed that the man in that car was wearing a lightcolored shirt, but whether it was a “T shirt” or not, they did not know. The officer in the police car at the entrance to the driveway testified that he also recognized the driver as the defendant.

The attendant at a nearby Apeo filling station was interviewed and told to watch for a man of a certain description. There was controversy in the evidence concerning the description so given. This attendant, Robert Jones, testified that a man came in later and sat around for 30-40 minutes and drank coffee, and that he answered generally the description given; further, that this man sat in the shadows in a side room; that he left in a taxicab and that he, Jones, then notified the police. A police officer, in rebuttal, denied that he had given Jones such a description as Jones testified to. Jones further testified that the man who stopped in his station was not the defendant.

Mildred Andrews, who lived across the street from the spot where the fleeing man’s car crashed into a building, turned over to the police three receipts which she had found later that morning in the corner of her front yard. These were lying in a “little pile” very near a rope which had been stretched along the side of her yard to keep people from walking across it; she also found that a metal pipe to which the rope was tied had been bent over to within approximately one foot of the ground. The receipts received in evidence were all issued to defendant, one from a bonding company, one from the firm of attorneys which now represents him, and one of an undisclosed nature. In the liquor store it was found that one or more cigar boxes and some papers were scattered about on the floor, and that a filing cabinet had been opened. Some currency from the filing cabinet was on the floor with the papers, but apparently nothing was missing. It had been raining off and on during much of the night, and wet footprints were found. Fingerprints were taken but the results were ineffective because of moisture, presumably from the hands or fingers of the person who made them.

Defendant does not question the sub-missibility of the case, but we have stated the foregoing facts in order to show more clearly the evidence and the issues which were submitted to the jury. After a warrant was issued for the defendant he surrendered to the police voluntarily.

The sole point relied upon on this appeal is that the trial court “erred and abused its discretion” in overruling defendant’s objections to portions of the State’s concluding argument, and in overruling his motion for a mistrial based upon that argument. In the State’s opening argument the assistant prosecutor reviewed the evidence in detail, including that upon the question of identification, the finding of the receipts, and the testimony of the filling station operator. Based upon this, he asked for a verdict of “guilty.” That argument did not include any discussion of or reference to punishment. Defendant’s counsel, in his turn, also reviewed the evidence and sought strenuously to disparage the identifications made by the State’s witnesses. He avoided entirely all reference to the question of punishment. In the State’s closing argument, after reviewing some of the evidence, the assistant prosecutor said: “* * * we are asking that this jury bring back a verdict of guilty, and we’re asking not only that you bring back a verdict of guilty, but we’re asking that you assess the maximum sentence.” Out of the presence of the jury defense counsel promptly objected for the reasons that the matter had not been mentioned in the State’s opening argument and that he had made no argument on the subject; he further moved that the statements be stricken, and for a mistrial. After a very little colloquy, the Court overruled both the objection and the motion. Thereafter, counsel for the State continued with his argument, asked again for a maximum sentence of ten years, and added: “There’s just one way to stop burglaries, there’s just one way to stop crime in this county, and that is to let the criminals know that if they commit a crime in this county they will be punished. I don’t mean by a slap on the wrist, I mean by punishment, I mean punished.” Again counsel for defendant objected on the “same grounds” and was overruled. Continuing, the assistant prosecutor argued: “* * * If these people like Gerald Peterson, if they are to know that we want law and order in this county that we don’t want burglaries, they are going to have to be made to believe it, and believe me, your conviction in this case, and the returning of a maximum sentence of ten years will be just like a red flag.” Another objection was then made and overruled. Thereafter the State’s counsel continued: “It’ll be just like a red flag. The criminals will know then that Clay County doesn’t want any crime, that if you come over here and burglarize you’ll go to the penitentiary and you’ll go there for a long stretch. And this is, I think, is what the people of Clay County want. We don’t want these people over here committing crimes, and if they come over here and commit a crime we want to send them down for just as long as we can because we want it absolutely understood — ” We have quoted these portions of the argument in order to show the context in which the requests for a maximum sentence were made.

Counsel for defendant relies strongly on Shaw v. Terminal R.R. Ass’n of St. Louis, Mo., 344 S.W.2d 32, 93 A.L.R.2d 265, a civil case for personal injuries. There plaintiff’s counsel, in his opening argument, discussed the evidence and his theory of liability, stating also that in his concluding argument he would develop “some other points.” At that time defendant’s counsel notified him that he should “make all of his points” then, including the matter of damages, so that defendant might answer, or that it would later object. The Court overruled this request. Defendant’s counsel proceeded with his argument but did not touch upon the question of damages. In plaintiff’s concluding argument his counsel dwelt at length upon the injuries and sundry elements of the claimed damages, concluding with a request for a verdict of $25,000. To all of this defendant’s counsel promptly objected, but the objections were overruled. Thus, the entire argument concerning injuries and damages was withheld until the plaintiff’s concluding argument. On the appeal this Court held that such action was improper, that the trial court abused its discretion in permitting the argument, and that the error was prejudicial; it further held that the question was not merely whether the judgment was excessive, because no one could know what the jury might have done had the arguments proceeded in the proper manner. Concluding, the Court said, loc. cit. 37: “Counsel having the affirmative will be held to the requirement of fairly stating his essential points in the opening argument, at least to the extent that the defendant may fairly answer them; and a failure to require this will ordinarily constitute error, if the point has been properly raised at the time and preserved.” This principle has been recognized in other civil cases, before and since, but some have been distinguished on their particular facts. Goldstein v. Fendelman, Mo., 336 S.W.2d 661 (no sufficient objection); Misch v. C. B. Contracting Co., Mo.App., 394 S.W.2d 98 (record of arguments incomplete, but opinion contains an excellent discussion); Conlon v. Roeder, Mo., 418 S.W.2d 152 (where injuries and damages had been discussed in detail by both plaintiff and defendant and the only addition in the concluding argument was the mention of a specific figure which the Court instructed the jury to disregard); Cumming v. Allied Hotel Corp., Mo.App., 144 S.W.2d 177 (discussion of additional exhibits in concluding argument); Votrain v. Illinois Terminal R. Co., Mo., 268 S.W.2d 838 (objection only to statement of amount sought, which the court instructed jury to disregard, but denied mistrial). The subject is also considered in the following cases and texts: Bertram v. Wunning, Mo.App., 385 S.W.2d 803; Samborski v. Price, Mo.App., 417 S.W.2d 205; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710; 27 Mo. Law Review 59; 93 A.L.R.2d 273 et seq.

It is thus generally recognized in civil cases that it is error for counsel who has the burden of the issues to omit all argument of injuries and damages in his opening argument, and to cover those matters in his concluding argument, thus depriving the defendant of all opportunity to fairly answer that argument. This, of course, assumes that the matter has been properly raised and preserved. We do not attempt to review here all the possibilities of excuse or waiver discussed in the cited cases; and the question of prejudice remains to be decided in each individual case.

The question has seldom been considered in criminal cases, but this Court did so in State v. Hale, Mo., 371 S.W.2d 249. There a term of ten years for second degree murder had been fixed by the trial jury. That term was the minimum for the offense. The defendant had contended that the fatal shot was fired accidentally. In the State’s opening argument counsel had referred to the offense as a “serious” one, with the suggestion that the verdict would be serious to the State as well as to the defendant, but without any specific recommendation of punishment. The argument of the defendant was not shown in the transcript; this was a material omission. In the State’s concluding argument, the prosecutor stated that the act of defendant was an “unnecessary killing,” asked if defendant should be freed to commit other crimes, argued “that a slight punishment in a case of this kind would encourage others to do the same thing,” and warned the jury against giving defendant “a tap on the wrist * * by saying “you have been a naughty boy.” Specific objection was promptly made. This was overruled on the theory that Shaw, supra, had no application in criminal trials. Counsel for the State proceeded with his argument, concluding with the request for a “severe” punishment. On the appeal this Court, stating that this raised a “serious question,” first considered Rule 4.22, V.A.M.R., and stated that it was unfair, in the trial of criminal as well as civil cases, for counsel thus to deprive the defense of an opportunity to answer “new points”; quoting from 23A C.J.S. Criminal Law § 1089, it stated the legitimate purpose of concluding arguments. The Court said, however, that in view of the “large measure” of discretion of the trial judge, the decision depended upon the “totality of the attendant circumstances,” there present. As such, the Court noted: that the State’s counsel had argued in opening that the case was a “serious” one, namely, murder in the second degree; that this was an “oblique or implied reference to the question of penalty”; that the jury was informed that a term of ten years was the minimum for that crime; that defendant’s counsel had been afforded some opportunity to answer, and that the Court was unable to tell from the record whether he had in fact done so; and that the State had not recommended any specific number of years. The Court indicated also that the objections had not been pursued as they might have been. Thus, it was concluded that there was no abuse of discretion, and that a lack of prejudice was “affirmatively demonstrated” by the fact that defendant received the minimum punishment.

It is clear that the Court in Hale, supra, recognized the inherent error in the practice now complained of, subject to determinations of waiver, the lack of prejudice, and possibly other factors. In State v. Shannon, Mo., 413 S.W.2d 198, the Court held that a similar point could not be considered because it had not been assigned as error in any way in the motion for new trial, and the Court further declined to consider the question as “plain error.”

We do not question the propriety of the decisions in Hale and Shannon, supra, upon their respective facts; but in the present case we note the following: there was not even an “oblique” reference to punishment in the State’s opening argument; specific objections were promptly made at the first opportunity and they were subsequently preserved; defendant’s argument is fully shown in the transcript and it contained nothing to constitute a waiver; counsel for the State did recommend a specific number of years namely, ten, which was the maximum permitted by the instructions and the statute; no relief was given by the trial court, for all the objections and the motion for a mistrial were overruled. It is also material to note here that after the initial ruling (and also after the repetitions of the ruling) counsel for the State proceeded to argue at length that there was only one way to stop burglaries in Clay County, namely, to let people “like Gerald Peterson” know that the residents there wanted law and order, and that the jury should let the criminals know that if they “come over here” and burglarize, they will be sent up “for a long stretch,” namely, “for just as long as we can * *

The State asserts that it was to be expected that the question of punishment would be argued at some time, and that the defendant could not have been misled, particularly in view of the instruction which fixed the range of punishment. It also refers to the present procedure as “the traditional pattern of argument in criminal cases”; if such has been “the traditional pattern,” that pattern is now changed. And it is perfectly obvious that it would have been rather foolish for defense counsel to have initiated any argument concerning punishment, for he might thereby have been considered to be admitting defendant’s guilt, at least by implication. We do not now hold or imply that counsel for the State may not elaborate upon the issue of punishment in his concluding argument, if he has made a fair statement of his position in the opening.

We have held that “ * * * so long as a prosecutor stays within the record and its reasonable inferences, he may legitimately argue the necessity of law enforcement as a crime deterrent, and he may argue also that the responsibility for the suppression of crime and the protection of the public rests upon the trial juries.” State v. Laster, Banc, 365 Mo. 1076, 293 S.W.2d 300, 306; see also, State v. Wells, Mo., 367 S.W.2d 652; State v. Jones, Mo., 384 S.W.2d 554. But when such an argument is coupled, as here, with the first recommendation for the imposition of a maximum punishment in the concluding argument, it greatly aggravates the effect of postponing the argument concerning the punishment. The defendant here was sentenced to more than a minimum term;- as stated in Shaw, no one can know what the jury would have done had the argument proceeded in the normal course and had defendant’s counsel thus been given an opportunity to answer. We do not consider that the imposition of a term of three years instead of ten eliminated the inherent prejudice.

In State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, loc. cit. 20, the Court said, in considering the right of a defendant to a converse instruction: “In civil cases defendants have the right to submit their defenses by instructions in a direct way. The rule should not be otherwise where life and liberty are at stake. We therefore rule that in all criminal cases, if a defendant offers a correct instruction as the converse of the State’s main instruction, it should be given, unless fully and fairly covered by other instructions.”

We hold that the rule announced' in Shaw, supra, is applicable to the trial of criminal cases. And, in order that all misapprehension may be avoided, we hold that in criminal cases it is not required that a warning be given in advance to the State’s counsel. It is not appropriate for us to amplify here the rule .in civil cases; for the present, the Shaw opinion must speak for itself. The principle which we have discussed above has been recognized in our adjudicated criminal cases long enough for the Bar and the trial courts to be familiar with it, and it should not be necessary to wave a flag of warning in every case. The point will, of course, be ruled in each case on its own peculiar facts, including these issues: whether a fair statement of the State’s position has been made in some manner in its opening argument; whether any waiver has been made by the defendant, either by his counsel’s own argument or by the failure to object properly and to preserve the point; and, lastly, a determination of the question of prejudice in view of all the circumstances.

We hold here that the final argument of the State’s counsel constituted prejudicial error; also, that the usual discretion permitted to the trial courts in ruling upon arguments is not broad enough to encompass and nullify this error, and that it abused its discretion. The judgment is reversed and the cause is remanded for a new trial.

All of the Judges concur.