author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant.
    No. 48488.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Feb. 12, 1962.

      W. A. Brookshire, Columbia, Richard K. Phelps, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.
   PER CURIAM.

W. A. Brookshire, charged with the offense of murder in the first degree, was convicted of manslaughter and sentenced to three years’ imprisonment for the killing of Ralph Codings, one of his farm hands, at defendant’s farm home about ten miles south of Columbia, Boone County, Missouri. He has appealed. The main contentions in his brief question the jurisdiction of the trial court, the overruling of certain motions on behalf of defendant, the admissibility of certain evidence, the submissibility of the State’s case, and the court’s action with respect to instructions, given and refused.

I. Defendant contends the order granting a change of venue from Boone to Cole County conferred no jurisdiction on the Circuit Court of Cole County because under his application for a change of venue the judge of the Boone County Circuit Court was disqualified to make any order except an order disqualifying himself. Boone and Callaway Counties comprise the Thirteenth Judicial Circuit. Section 478.107. Defendant, who had been a Superintendent of Schools, a State Senator, a practicing lawyer, now retired, and a farmer, in an “Application for Change of Venue,’’ filed November 29, 1959, alleged, among other things, that: “The opposite party has an undue influence over the mind of the Hon. W. M. Dinwiddie, Judge of this court”; that, in effect, the defendant and the prosecuting attorney had orally agreed the defendant could not have a fair and impartial trial in Boone or Callaway County, and prayed for “a change of venue to some county and some court where this prejudice does not exist.” The Court, on said day in the presence of defendant and the prosecuting attorney, entered an order transferring the cause to the Circuit Court of Cole County. Defendant interposed no objection to this order, and so far as disclosed of record, was satisfied with the result obtained.

The granting of a change of venue of the place of trial is a statutory privilege which may be waived. Error on such an application is a matter for preservation in the court granting the change. The point when first made on appeal is too late to avail. State v. Gamble, 119 Mo. 427, 24 S.W. 1030, 1031(1); State v. Ottinger, Mo., 36 S.W.2d 942 [1]. See State v. Bailey, 344 Mo. 322, 126 S.W.2d 224, 228 [6-10], cited by defendant. In State v. Perkins, 339 Mo. 27, 95 S.W.2d 75, 76 [1-4], Court en Banc held the right to disqualify a judge, like an application for a change of the venue of the place of trial, is a privilege which may be waived either before or after the order has been entered. State v. Hampton, Mo., 172 S.W.2d 1, 2 [1, 3], states: “Appellant, by filing a motion for continuance in the court to which the cause was transferred, waived any irregularities in the transfer.” State v. Nave, 185 Mo. 125, 84 S.W. 1, 3, 4. This defendant invoked the jurisdiction of the Circuit Court of Cole County by filing seven motions for affirmative relief, including the granting of a continuance of the trial of the case. Defendant’s contention is overruled.

II. In connection with the foregoing defendant also asserts the Circuit Court of Cole County erred “in refusing the Defendant the right to file an application for a change of venue.” Defendant’s brief states: “this part of the proceeding is not in the transcript.” This transcript is approved by, among others, defendant and his attorney. We are bound by the transcript of the record certified here and matters not shown therein cannot be considered or determined. State v. Whitaker, Mo., 312 S.W.2d 34, 37 [2].

III. Defendant alleges in his motion for new trial: “The court committed error in denying defendant’s motion to suppress evidence for the reason that the record shows that the defendant was taken into custody without a warrant and without any reason, and in face of the fact that all the evidence pointed to justifiable homicide and should have been exonerated at the preliminary examination.” Defendant’s motion sought to suppress evidence relating to the cartridge cases, bullets and pistol found in and taken from his home. He cites “U. S. Constitution, Arts. IV and V of Amendments; Constitution of Mo., Art. I, Secs. 15 and 19; Mapp v. Ohio,” 367 U.S. 643, 81 S.Ct. 1684 [3-5], 6 L.Ed.2d 1081.

The record before us preserves no evidence or proof offered in support of said motion and there is nothing upon which to predicate prejudicial error as the allegations in said _ motion do not prove themselves. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887 [16, 17], rules this issue against defendant.

Furthermore, defendant voluntarily testified at the trial that he got “this gun” and shot Collings. The difference between his and the State’s position is that he contends the homicide was justifiable and the State contends it was manslaughter. In view of defendant’s admissions he may not now successfully urge prejudicial error. State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 140 [2, 3], and authorities cited; State v. Bray, Mo.App., 278 S.W.2d 49, 52 [3]; Annotation, 50 A.L.R.2d 570, § 8, b.

The State answers this contention on defendant’s presentation. In Mapp, supra, seven or more officers forcibly broke into and searched defendant’s home under asserted authority of a warrant to search for lascivious books, pictures' and photographs, but no search warrant was produced or accounted for at the trial. The Mapp case involved constitutional provisions against unreasonable searches and seizures without a valid search warrant. See Mo.Const. Art. I, § 15, V.A.M.S. The record before us involves a search incidental to a lawful arrest. This has been recognized as proper by federal courts. Harris v. United States, 331 U.S. 145, 150-153, 67 S.Ct. 1098, 91 L.Ed. 1399 [6-10]; Annotation, 4 L.Ed.2d 1983, §§ 2, 5, 7. The evidence at the trial, upon which the State relies, justified the action of the officers. When they arrived, defendant invited them in, led them to the kitchen and showed them the dead body, stating the man had been shot. However, when asked who shot him; who the man was; and where the gun was, defendant refused to answer but demanded that a jury be brought out and they would have a hearing. Defendant did not accuse anyone else of the shooting and was placed under arrest within ten minutes after the officers arrived. The officers had probable cause to believe that defendant had committed a felony. State v. Edwards, Mo., 317 S.W.2d 441, 445 [2, 3]. Deputy Sheriff Lulcehart took defendant to jail in Columbia, secured a coroner’s jury and returned with the jury to defendant’s farm in about an hour. Deputy Sheriff Duncan and Coroner Perna remained at the farm and assumed control of the premises. Nothing- had been disturbed and the members of the jury were cautioned to avoid disturbing anything. After the jury viewed the scene, the officers searched the house, which was in defendant’s possession at the time of his arrest, picking up the cartridge shells (seen on the dining room floor upon their arrival), three bullets in the kitchen, and defendant’s automatic pistol in an upstairs bedroom in the course of their investigation. This search for things connected with the crime for which defendant was arrested was incidental to his arrest. State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743, 745 [2, 3], citing cases, and authorities supra. Clearly, defendant’s presentation does not establish the asserted error.

IV. Defendant in his brief alleges the court erred in overruling his motion to produce a signed written statement made on May 25, 1959, by witness Harvey Beavers. We fail to find this point presented to the trial court in defendant’s motion for new trial (Sup.Ct.R. 27.20, V.A.M.R.; Section 547.030), and, first presented in defendant’s brief, it is not preserved for review. State v. Wilson, 361 Mo. 78, 233 S.W.2d 686 [12]; State v. McCarthy, Mo., 336 S.W.2d 411, 416 [4, 8]. In addition, defendant states in his brief that the statement “evidently was favorable to the defendant” ; but there is no evidence or proof offered in connection with said motion in this record and, hence, nothing upon which to predicate prejudicial error. Consult State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85 [1, 7]; State v. Kelton, Mo., 299 S.W.2d 493, 497 [8, 9].

V. On the morning of April 27, 1960, following a motion to quash the jury panel filed April 26, 1960, and, we understand, the making of the peremptory challenges, defendant filed a motion to quash the twelve-member jury, alleging it was selected from a panel not properly impan-elled according to law; selected after improper statements and questions by the State on the voir dire examination; and selected after prejudicial statements concerning defendant by veniremen on voir dire examination. The court overruled. Defendant claims error. The State does not question this procedure (see State v. Logan, 344 Mo. 351, 126 S.W.2d 256 [1-3], 122 A.L.R. 417), but answers defendant’s complaint. During the course of the voir dire examination defendant had ample opportunity to protect his rights if the court abused its discretion in any respect. There was no showing of any improper action excluding Negroes from the panel (Logan, supra), if defendant, of the white race, may raise that issue. Defendant in his brief states that pages 26 to 120 of the transcript disclose that “in many instances extreme prejudice was shown against the Defendant.” Neither this court nor the trial court is required to read the record and speculate what particular instance (or why it constituted prejudicial error) defendant had in mind as falling within a stated conclusion in a motion for new trial or in a brief. Sup.Ct.R. 27.20 and 83.05(a) (3); § 547.-030; State v. Gregory, 344 Mo. 525, 127 S.W.2d 408[2], We have studied the voir dire examination and find the court was quick to excuse veniremen concerning whom there was any question and to admonish the panel on proper occasions. We find no error. State v. Weidlich, Mo., 269 S.W.2d 69, 71 [5]; State v. Taylor, Mo., 324 S.W.2d 643, 648 [9-11], 76 A.L.R.2d 671.

VI. Defendant contends his motion for a judgment of acquittal should have been sustained. The jury could find the following facts from the probative evidence considered in the light most favorable to the State (State v. Smart, Mo., 328 S.W.2d 569, 573 [1]; State v. Hill, Mo., 328 S.W.2d 656, 659 [1]):

Defendant’s house faces west. The entrance on the north to the dining room is used. A kitchen is south of the dining room. The back porch is south of the kitchen. An open tool cabinet, with a short handle blacksmith sledge hammer, weighing three to five pounds, on top of it was on the back porch. Defendant kept a .32 caliber automatic pistol in a vanity table in an upstairs bedroom. He had no telephone.

The homicide occurred between 8:30 and 9:00 a. m. Monday, May 25, 1959. Harvey Beavers and defendant were the only witnesses testifying to facts occurring on the 25th leading up to the homicide.

Beavers came to work for defendant Friday, May 22. On the way to the farm from St. Louis, where Beavers was hired, defendant told him Collings was “so weak he can’t harness the horse.” Beavers and Harold Hayman, who died prior to the trial, occupied two rooms with a door onto the back porch and Collings moved to quarters in defendant’s part of the house. Col-lings was described as 5 feet 4 inches tall, weighing about 135 pounds, a pretty spry old man, smaller than defendant.

Saturday, May 23, after arguing, defendant and Collings went to St. Louis, returning about midnight. Both stated that defendant tried to buy Collings a bus ticket but Collings wouldn’t get out of the automobile. Collings said he couldn’t work for nothing and defendant would not pay him. Collings worked on Sunday, telling Beavers he would work a few days more and was going to the law if he was not paid.

On May 25, Collings brought two suitcases to Beavers’ room and was ready to go soon after breakfast. Defendant came to the door and said: “I have told you to get out of my house.” Collings answered: “I will, when you pay me.” Defendant said: “I don’t owe you a damn penny.” Defendant, soon thereafter, called Beavers and Hayman to the kitchen and had them sign a statement that he had told Collings to get out of his house. Collings, upon their return, told them: “You fellows better get out of there. There is going to be trouble.” About fifteen minutes later defendant, in a pleasant manner, asked Col-lings to show Hayman and Beavers how to feed the cattle. Collings said, on the way to the barn: “You reckon that son-of-a-bitch will put something in my suitcase and accuse me of stealing it?” Witness answered: “No.” Collings complied with defendant’s request, returned to the house, and entered the back porch. Beavers, then working about thirty feet away, next saw Collings come off the back porch and walk pretty fast around to the north side of the house, looking upstairs to the windows, and saying something. Collings turned back and said: “If I don’t get my money, there is going to be one dead son-of-a-bitch” and went in through the screen door on the back porch. After a minute or two Beavers heard a racket, like things being turned over, and then shots, one right after another, after which everything was quiet.

After ten minutes or more, defendant called Beavers to the house. Defendant had the kitchen door open and, when Beavers and Hayman entered, said: “There he is-”' Broken glass from the back door was on the kitchen floor but Beavers had heard no' sound of glass breaking. Defendant, showing Beavers his wrist, said Collings hit him with the hammer. Beavers saw nothing wrong, only a red spot that looked like ai mosquito bite, no skin was broken. Beavers suggested defendant call the law and returned to work. Ten or fifteen minutes later defendant asked Beavers to go to town with him and Beavers, Hayman and defendant went to Columbia. Defendant got his mail at the post office. He started back, stopped at a public telephone booth and informed the Sheriff’s office that there was “a dead man in my house.” Beavers- and Hayman went to their room. After a few minutes, they went into the dining room. Defendant removed his shirt and had them look where he said Collings had struck him with the hammer on the back of his right shoulder. Beavers could see nothing wrong with defendant’s shoulder. Collings’ suitcases were near the dining room front door, and defendant, being asked, answered: “I brought them in here.” Dr. R. J. Miller examined defendant, who complained of pain in the right shoulder and left wrist, on May 26. He found no evidence of any injury or bruise on defendant’s shoulder, but defendant had superficial scratches of a circular nature on the back of his left wrist. Deputy Sheriff Lukehart testified he put handcuffs on defendant when he took him to Columbia, and when he removed them there was a red mark on the back of defendant’s left wrist.

The first time Beavers entered the kitchen Collings’ hat was about twelve inches from his head but it was on his head the second time Beavers was in the kitchen.

Defendant testified Collings had the hammer in his hand while in the yard. Beavers testified Collings did not have the hammer, didn’t have anything, in his hand while out■side the house.

Deputy Sheriffs Theron Duncan and Pearlie Lukehart and Dr. Vincent Perna, Coroner, arrived at defendant’s home about 10:35. Defendant admitted them to the house, where they saw the dead body. Defendant told them the man had been shot, but when they asked him who shot the man, who the dead man was, and where the gun was, defendant would not tell them but would say for them to get a jury out here and we will have a hearing. Collings’ body was face down, with his arms underneath, his feet near the dining room door .and his head, with his hat on, toward the ■south, near the kitchen table. The sledge hammer was on the floor twelve to fourteen inches from Collings’ head and a newspaper covered the first three or four inches of the handle. Deputy Lukehart, on ■cross-examination, stated it would be unusual for the handle to fall, when dropped, •underneath a newspaper.

Five spent cartridge cases were on the dining room floor. Two bullets recovered from Collings’ body and three found in the kitchen had been fired from defendant’s gun. Powder burns indicated that two, perhaps more, shots were fired with the gun in contact, or practically so, with Collings’ coat. The testimony established that two fatal bullets, each of which severed or lacerated the aorta, entered Collings’ body. The immediate cause of death was massive hemorrhage. Either of the fatal wounds would have caused instant unconsciousness, causing Collings to fall, and death within minutes. Four, perhaps five, bullets struck Collings.

Defendant, his only witness, testified to the effect that he shot in self-defense; that Collings, threatening to kill him and although told to stop, smashed the kitchen door with the hammer and came into the kitchen; that he got his pistol from the dining room table; that Collings was striking at him with the hammer and struck a glancing blow on his left wrist; that he fired; that Collings kept swinging and struck him on the right shoulder; that he fired shots in succession; that Collings stopped, took two steps, and fell in the kitchen, the hammer falling ahead of Col-lings.

Seven witnesses testified in rebuttal that defendant’s reputation for truth and veracity in the community in which he lived was bad. There was no contradictory testimony.

Defendant’s guilt or innocence of the offense of manslaughter (State v. Taylor, Mo., 309 S.W.2d 621, 624 [5-10]) was for the jury. He intentionally shot Collings. The jury was not bound by but could accept or reject any part of defendant’s testimony, the same as the testimony of any other witness. State v. Hill, Mo., 328 S.W.2d 656, 659 [2, 3], and cases cited; State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100, 102 [1-3]; State v. Littlejohn, 356 Mo. 1052, 204 S.W.2d 750, 752 [1, 2], and cases cited. Defendant’s motion for judgment of acquittal at the close of all the evidence was correctly overruled. Any error in overruling defendant’s motion for acquittal at the close of the State’s case was waived by defendant offering evidence thereafter. State v. McMillian, Mo., 338 S.W.2d 838, 842 [1].

VII. Defendant’s contention that Coroner Dr. Vincent Perna was not qualified to give an opinion as to the effect of the fatal bullets upon Collings’ body and as to how long Collings lived after being shot on the grounds there was no attempt to qualify the witness and the further reason that his testimony was prejudicial and was not based upon any scientific or actual facts is without merit. No authority is cited. Defendant’s assertions that no attempt was made to qualify Dr. Perna are refuted by the record. The witness performed an autopsy and his testimony was based on facts ascertained by him. State v. McLaughlin, 149 Mo. 19, 50 S.W. 315, 318(1). See 32 C.J.S. Evidence § 480.

VIII. Defendant states: “The Court committed reversible error in permitting prosecuting attorney to cross-examine the Defendant on matters not relevant to his testimony given directly, and which testimony and cross-examination was argumentative in that it required the Defendant to directly dispute the testimony of the State’s witnesses and to permit Prosecuting Attorney to argue with and badger the- Defendant.” Defendant cites- only State v. Mann, 83 Mo. 589. The contention is not well taken for several reasons. The cited case does not disclose prejudicial error on the issue presented. Defendant’s motion for new trial does not specify what testimony, or what specific arguing with or badgering of defendant is involved, and does not comply with the requirement that motions for new trial “must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” Sup.Ct.R. 27.20; Section 547.030; State v. Crocker, Mo., 275 S.W.2d 293, 297 [3]. The point in the motion for new trial and in the brief must be based upon objections made and the reasons assigned at the time the error occurs. State v. Slaten, Mo., 252 S.W.2d 330 [3]; State v. Washington, Mo., 320 S.W.2d 565 [8]. We have examined the forty-odd pages of this cross-examination and, as we read the transcript, the court, upon proper objection, was restricting the cross-examination to matters falling within the direct examination of defendant. The contention is overruled.

IX. During the examination of Dr. Perna the prosecuting attorney asked if “the force of these bullets and these two particular wounds” would have caused Col-lings’ body to spin to the left. Defendant’s attorney stated he did not know which particular wounds were being inquired about. The court said “ * * * why don’t you include in the question which wounds ? This case might sometime be looked at by another court.” Defendant’s counsel, out of the hearing of the jury, requested a mistrial on the ground the last remark of the court gave the jury the impression a verdict of guilty would be returned and the defendant would appeal. This was refused. Defendant in his brief mentions another remark made by the court in chambers and out of the presence of the jury to which no objection was and properly could not have been taken. Defendant’s brief is misleading. Defendant relies on State v. Castino, Mo., 264 S.W.2d 372, 374, wherein defendant had asked a separate trial and the court informed the veniremen that the proceeding had been commenced against three defendants and one had pleaded guilty but had not been sentenced. In the instant case the court’s statement was prompted by a suggestion from defendant’s counsel, was addressed to the attorneys, and its purpose was to have the written record clear, which appears to have been the original purpose of defendant’s attorney. The remark may not have been necessary but it was not prejudicial error. State v. Young, 105 Mo. 634, 641, 16 S.W. 408 [5]; Annotation, 132 A.L.R. 680(II, b). Consult State v. Brotherton, Mo., 266 S.W.2d 712, 716 [5-7]; 23 C.J.S. Criminal Law § 989.

X. Defendant complains of the State’s rebuttal testimony that his reputation for truth and veracity was bad. Defendant’s authorities (26 Am.Jur., Homicide, § 342 ; 20 Am.Jur., Evidence, § 325, and Kirby v. State, 25 Okla.Cr.R. 330, 220 P. 74, 33 A.L.R. 1212) do not rule the issue presented. By taking the stand defendant’s credibility as a witness became an issue and testimony that his reputation for truth and veracity was bad was proper in rebuttal. State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38, 41 [8], citing authority; State v. Kain, Mo., 330 S.W.2d 842, 845 [3]; section 546.260. That the State’s witnesses were not friendly to defendant went to the credibility and weight of their testimony, not its admissibility.

XI. The court submitted to the jury, among others, instructions on murder in the second degree (instruction No. 5; see section 559.020) and on manslaughter (instruction No. 6, see section 559.070). A complaint in defendant’s motion for new trial common to each of said instructions is that defendant was charged with murder in the first degree and, under the evidence, was guilty of murder in the first degree or not guilty. We held supra (¶ VI) that the State made a submissible case. Furthermore, section 559.030 provides that upon a trial for murder in the first degree the jury must inquire and ascertain, under the instructions, whether defendant be guilty of murder in the first or second degree. Section 556.220 provides: “* * * and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.” See also section 545.030(17); Sup.Ct.R. 26.06. The law has been chang-ed, and the cases cited by defendant bearing on the issue (State v. Bailey, 57 Mo. 131, 133; State v. Mahly, 68 Mo. 315, 318) are no longer the law. State v. Murphy, 341 Mo. 1229, 111 S.W.2d 132, 137 [18-20], and authorities cited. In addition, having been convicted of manslaughter, defendant may not successfully assert prejudicial error in an instruction submitting a higher degree of the offense on trial whether such instruction be right or wrong. State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 319 [12]; State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016, 1022 [15]; State v. Goodwin, 271 Mo. 73, 195 S.W. 725, 729 [9].

XII. The court instructed on self-defense. The instruction on manslaughter (No. 6) defined “manslaughter” as the “killing of a human being not herein declared to be murder or excusable or justifiable homicide” (section 559.070) and then required the jury to find facts and circumstances requisite to a finding of guilt of manslaughter, specifically excluding excusable or justifiable homicide and a finding that the killing was not in the lawful defense of defendant’s person. The instruction then defined “excusable homicide” as “the accidental killing of another” (section 559.-050), and “justifiable homicide” in the language of section 559.040(1, 2, 3). Defendant says said instruction “is erroneous in that it couples the crime of manslaughter with excusable homicide and three degrees of justifiable homicide,” which is alleged to confuse a jury to such an extent “that they could not return a verdict based upon the testimony adduced.” Before the jury could find defendant guilty of manslaughter under the instruction it was required to find, so far as involved in defendant’s complaint, that the killing was not the result of an accident (excusable homicide) or the result of any of the situations set forth in section 559.040 (justifiable homicide). It authorized an acquittal of manslaughter if any of the submitted factual situations were found by the jury whether or not the evidence was sufficient to support such a finding. All this put a greater burden on the State than was required of an instruction restricted to the defenses of excusable or justifiable homicide within the evidence, and the error being in favor of defendant, he was not prejudiced and is in no position to complain on the grounds assigned. Consult State v. Farrell, 320 Mo. 319, 6 S.W.2d 857, 859 [7, 8]; State v. Pillow, Mo., 169 S.W.2d 414, 418 [11, 12].

XIII. Defendant says reversible error was committed in not giving an instruction on and in refusing defendant’s requested instruction No. 5 on the defense of defendant’s home. Did defendant’s testimony, the only evidence on the issue, entitle defendant to such an instruction? Sup.Ct. R. 26.02(6); section 546.070(4).

Defendant testified he intended to go to Iowa that day and had promised to take Collings to Columbia. He took his automatic pistol from upstairs and placed it on the dining room table. This, he said, was his custom so that the gun would be there when he returned at night. Collings, after complying with defendant’s request to show Beavers and Hayman what to do at the barn, was entitled to return to obtain his suitcases which were in defendant’s house. Defendant testified as follows: While in the kitchen he saw Collings through the glass of the kitchen door on the back porch. Collings had the hammer and said: “I am coming in and kill you, you son-of-a-bitch.” He told Collings to stop but Collings came into the kitchen, smashing the door with the hammer and breaking the glass. Defendant then went into the dining room, a distance of about twelve feet, and got his gun. He came back to a position between the dining room table and the kitchen door, and tried to get Collings, who was already in the room and who was coming at him threatening to kill him and striking at him with the hammer, to stop. Col-lings struck him on the wrist and swung at his head. Defendant then fired the first shot, which he thought missed. Collings then struck him on the right shoulder and defendant fired several shots in succession while Collings was still swinging at him with the hammer. Collings took two steps and fell on the kitchen floor. Defendant further testified that he “acted in self-defense” ; “I know I fired because I thought it was his life or mine”; “I was excited and I was scared. I was in danger”; and “Q-And after the first shot you did not retreat any further? A Oh, I don’t know; I don’t suppose I did. I was firing to save my life.”

The Missouri statutes provide that every homicide shall be murder in the first degree (section 559.010), or murder in the second degree (section 559.020), unless it be excusable or justifiable homicide by reason of statute or the common law (section 559.-060), and the statutes then define justifiable homicide (section 559.040) and excusable homicide (section 559.050). The statutory definition of justifiable homicide, insofar as it pertains to a dwelling house, does not include all of the common law defense of habitation. Section 559.070 provides that every killing of a human being, not declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter. The trial court instructed on manslaughter, and in doing so instructed in the terms of the statute as to what constituted statutory excusable and justifiable homicide. If defendant was entitled to an additional instruction it is because the evidence established a right to an instruction on the common law defense of habitation.

This defense at common law apparently arose as an exception to the common law duty to retreat when attacked, if feasible under the circumstances to do so, before one was justified in taking a life. Some confusion has arisen because of a too broad interpretation of the phrase, “a man’s home is his castle.” After reviewing the common law this court held that this maxim was a limitation on the duty to retreat. “ ‘When a person is attacked in his own house, he need retreat no further. Here he stands at bay, and may turn on and kill his assailant if this be apparently necessary to save his own life; nor is he bound to escape from his house in order to avoid his assailant.’ ‘In this sense, and in this sense alone, are we to understand the maxim that “every man’s house is his castle.” ’ ” State v. Taylor, 143 Mo. 150, 44 S.W. 785, 789. See also 26 Am.Jur. Homicide, § 155.

The principal feature of the defense of habitation, when applied to the facts of this case, is that under certain circumstances one is justified in committing a homicide to prevent an entry to the home or dwelling. “When an assault on a dwelling and an attempted forcible entry are made under such circumstances as to create a reasonable apprehension that it is the design of the assailant to commit a felony or to inflict on the inmates a personal injury which may result in the loss of life or great bodily harm, the danger that the design will be carried into execution being imminent and present, the lawful occupant of the dwelling may lawfully prevent the entry, even by the taking of the life of the intruder.” (Italics added.) Vol. I, Wharton, Criminal Law and Procedure, § 220. See also the statements in 26 Am. Jur., Homicide, § 166; 40 C.J.S. Homicide § 109; and in the annotation comment and cases cited in 25 A.L.R. 508 and 34 A.L.R. 1488.

The cases where the precise issue has been raised are few. In Taylor v. State, 27 Ariz. 228, 232 P. 552, the deceased had made threats from outside the dwelling and had opened the screen and door by opening the latch in some manner. After entering the house and when about two paces inside he pushed one person aside and started on into the room and was shot by the defendant. The court held: “It is clear, however, the shot was not fired to prevent deceased from entering the house, for that he had done without meeting any physical resistance. The assault on the house was an accomplished fact, and defendant could not punish the act, however wrongful, by taking the intruder’s life. * * * The shooting of deceased by defendant must be justified, if at all, as necessary or apparently necessary to protect her own life, or to protect herself from great bodily harm, and she must have acted under a reasonable apprehension that her life was in immediate danger.”

In State v. Sorrentino, 31 Wyo. 129, 224 P. 420, 34 A.L.R. 1477, two boys bur-glariously entered a house to steal moonshine whiskey. After entering the kitchen by using a key to unlock the door they went to a bedroom and one was shot by defendant. The court stated: “A man has the right to prevent, in his home, the commission of a felony or the infliction on any of its inmates of a personal injury which may result in the loss of life or in great bodily harm. The right is limited to prevention; it does not extend to punishment for an act already committed. * * * After the deceased had entered, though burglariously, and after he was in the house, the defendant had no right to kill him for the act of entry already committed.” See also Horton v. State, 110 Ga. 739, 35 S.E. 659; Carroll v. State, 23 Ala. 28, 58 Am.Dec. 282; People v. Davis, 412 Ill. 391, 107 N.E.2d 607. The applicable rule is clearly stated in Vol. I, Wharton, Criminal Law and Procedure, § 222, as follows: “A person has a right to prevent in his home the commission of a felony or the infliction on any of its inmates of an injury which may result in loss of life, or great bodily harm, but he cannot justify or excuse the slaying of a person in his house, for acts already done. When attacked in his own house, one may justify or excuse the killing of his assailant if such act is apparently necessary to save his own life or to protect himself from great bodily harm. In such case, it is the question of the law of self-defense and not the law of defense of habitation which is involved.” In 40 C. J.S. Homicide § 109(c) at pp. 974 — 975, in discussing the nature of the intrusion of a habitation, it is stated: “A burglar may be lawfully killed by the owner of a house, where the burglar or thief is at the time committing a felony by attempting to break into and burglarize the house, or even though he is attempting to escape; but after he has entered, although burglariously, the owner has no right to kill him for the act of entry already committed.”

It is apparent that the rules pertaining to the defense of habitation authorize certain protective acts to be taken earlier than they otherwise would be authorized, that is, at the time when and place where the intruder is seeking to cross the protective barrier of the house. But once the intruder has crossed that barrier without resistance from the occupant of the house there is no occasion to kill him in order to keep him out because he is already in, and the occupant is not authorized by law to punish for the wrongful entry. Therefore, what protective action the occupant may take after the aggressor has effected his entry depends upon the facts and circumstances then existing, and a homicide then occurring is justifiable only under the usual rules of self-defense or to prevent therein the commission of a felony, except that there is no duty to retreat.

Applying these rules to the evidence in this case we find that according to defendant, Collings had threatened him from outside the house, and that defendant warned him to leave. By reason of those threats and the menacing acts of Collings defendant could reasonably have believed his life was in danger, and he could have used such force as necessary to repel Collings at the threshold of his house to prevent an entry. However, Col-lings made his entry and was inside the house before defendant sought to stop him with physical resistance. The entry was then an accomplished fact; the barrier had been crossed. Under the evidence most favorable to defendant the shooting did not occur before or while Collings was in the act of entering, and defendant did not testify or even imply that he shot Collings to prevent an entry into his house. Under the common law of the defense of habitation defendant had no right to punish deceased for the unlawful entry already completed. Collings was in defendant’s house, following his forcible entry, for the stated purpose to kill defendant, and defendant affirmatively stated that the reason he intentionally shot Collings was in self-defense and to save his own life. Defendant’s right to commit a homicide when attacked in his house is governed by the law of self-defense as stated in Vol. I, Wharton Criminal Law and Procedure, § 222, supra, and in this respect the court gave an instruction on self-defense, in which the jury was told, among other things, “that the law did not require the defendant to retreat or to wait until he was actually attacked.”

We need mention only briefly the cases cited and relied on by defendant. State v. Shiles, Mo., 188 S.W.2d 7, pertains to the defense of property. There the deceased and defendant engaged in an encounter in the defendant’s place of business. The deceased then left but returned and made threats against defendant. The defendant shot the deceased when he “had one foot in the doorway.” In State v. Taylor, 143 Mo. 150, 44 S.W. 785, the issue here presented was not involved, but the case pertained to whether one is justified in committing a homicide to prevent a mere trespass’ on his habitation. The shooting there took place to prevent an entry into the house, 'but a conviction of second degree murder was sustained. Morgan v. Durfee, 69 Mo. 469, was a civil suit. The somewhat loose language there used, which is quoted and relied on by defendant, with reference to the right of one to defend his dwelling being superior to the defense of his person, was not concurred in by any of the other members of the court. Possibly this language has reference to the exception to the duty of one to retreat under the law of self-defense when attacked in his habitation, see Carroll v. State, 23 Ala. 28, 58 Am.Dec. 282, but if so the jury was fully instructed as to this. The observations in State v. Pollard, 139 Mo. 220, 40 S.W. 949, were made in criticizing an instruction too favorable to the defendant who was charged with and found guilty of murder. No question was involved concerning the defense of habitation by the defendant, but the observations there made are consistent with the views here expressed.

We must and do conclude that the instructions which were given submitted all the defenses to which defendant was entitled under the applicable law.

Our examination of the matters we inquire into under Sup.Ct.R. 28.02 discloses no reversible error.

The foregoing disposes of all issues for consideration on this review.

The judgment is affirmed.

      . Statutory references are to RSMo 1959 and V.A.M.S.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Velva K. KENNON and Thelma Kennon, Appellants, v. Bob CAMP, Bertha Camp and Home Insurance Company, Respondents.
    No. 48819.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Charles W. Medley, McClintock & Medley, Flat River, for appellants.
    Robert A. Mcllrath, Flat River, for respondent.
   COIL, Commissioner.

Appellants, who were plaintiffs below, brought an action to set aside a trustee’s deed and, in a second count, for damages against defendants-respondents for wrongful foreclosure. The trial court found and adjudged that the trustee’s deed was valid and conveyed a good title to defendants, subject to a first deed of trust. Other portions of the trial court’s judgment, by which certain funds in the registry of the court were ordered paid to the respective parties, will be hereinafter considered.

Prior to the foreclosure sale hereinafter described, plaintiffs Velva Kennon and his-wife Thelma owned real estate (about 7½ acres) improved with a house and barn. There was evidence that the property was. worth $10,000. A savings and loan association in Farmington held a first deed of trust executed by the Kennons in September 1953, securing an indebtedness of $5,500 which, at the time of the foreclosure, had been reduced to $2,737.73. On January 12, 1957, the Kennons executed their six per cent promissory note for $1,514 payable to Lacy Gower and Cecil Hulsey, d/b/a Gower Insurance Agency, due December 31, 1957, secured by a second deed of trust on the above-mentioned real estate. The deed provided that upon default in payment of the note the trustee named therein or, in the event of his-refusal to act, the sheriff of St. Francois-County might proceed to sell the property to-the highest bidder, first giving 30-days’ public notice of the time, terms, etc., by advertisement in some newspaper printed and published in St. Francois County. On September 21, 1960, for a consideration of $1,-200, ownership of the note and the second deed of trust were transferred to defendant Bob Camp. After some negotiations with plaintiffs relating to a possible sale of their property to a third party, during which no> agreement was reached, defendant (defendant or Camp will hereinafter refer to Bob-Camp) said that he told plaintiffs something-would have to be done toward the payment by them of the note secured by the second: deed of trust which he told them he owned or he would have to foreclose the property. Plaintiffs testified that defendant did not at any time say that he intended to foreclose and never did demand payment of the note-which had been allowed to continue as past due by the original payees. In the view we take, the conflict in the testimony in that respect is of no consequence.

On or just prior to October 6, 1960, defendant delivered to the St. Francois County Sheriff’s office the note, the second deed of trust, and a letter from the named trustee refusing to foreclose on the ground of a conflict of interest, and requested that the sheriff proceed. A deputy prepared a notice of the foreclosure sale and advertised it in a Farmington paper covering the period from October 6 to October 27, 1960, a total of twenty-two days, by four insertions on October 6, 13, 20, and 27, respectively. The sheriff sold the property on October 31, I960, to defendant, the only bidder, for $4,700. Immediately following the sale, defendant paid the deputy sheriff $105 costs, purchased the first deed of trust for the $2,750.20 principal and interest then due, and received a sheriff’s (trustee’s) deed reciting that the title to the property was sold and conveyed to defendants for the sum of $4,700.

The evidence showed that plaintiffs had no knowledge of the foreclosure, either of the fact that the sale was held or that the property had been advertised for sale, until November 10, 1960, when a fire occurred in the property, destroying much of the interior of the house. Plaintiffs called the savings and loan association to report the fire and were informed of the foreclosure and were told that they would need to see Mr. Camp. The insurance was written by an insurance agency officing and connected with the association. Subsequent to the purchase of the first deed of trust by Camp, the insurance policy had been transferred or assigned to him without the knowledge of plaintiffs.

This action was filed December 1, 1960. Originally, one of the three counts sought a judgment against the insurance company for the amount of the fire damage. Prior to trial the company paid into court $6,759.59 and was discharged. No issue remains with respect to the company’s liability.

Count 1 of plaintiffs’ first amended petition alleged that the “trustee’s deed was void, illegal and defective” for 11 stated reasons. All of those (save one to be hereinafter mentioned) charged irregularities in the performance of the foreclosure proceedings. In the view we take it will be necessary to notice only one irregularity. It is undisputed that the deed of trust under which the sheriff acted required 30-days’ public notice of the terms and place, etc., and that, as shown by the sheriff’s deed, the property was advertised for only 22 or, at the most, 26 days. Presumably, the notice in this case was purportedly given in accordance with the provisions of Sections 443.310 and 443.-320; but, if so, without recognition of the provision in that section that it does not authorize the giving of a shorter notice than required by the pertinent deed of trust, or without taking into account the fact that, as noted, the deed of trust in this case provided that the property be advertised for thirty days.

The failure to advertise the sale for the prescribed period of thirty days was an irregularity in the execution of the foreclosure proceeding. A trustee’s deed delivered pursuant to an improperly executed foreclosure sale conveys a valid title to the grantee until such deed is set aside, i. e., the deed is voidable. Roberts v. Murray, Mo., 232 S.W.2d 540, 546. An irregularity in the execution of a foreclosure sale must be substantial or result in a probable unfairness to suffice as a reason for setting aside a voidable trustee’s deed. Powell v. Pinkley, Mo., 180 S.W.2d 745, 747 [1, 2], Advertising the property for sale for a shorter period of time than provided in the deed of trust is a substantial irregularity which will support a mortgagor’s action to redeem. Adams v. Carpenter, 187 Mo. 613, 86 S.W. 445, 451; Hoffman v. Bigham, 324 Mo. 516, 24 S.W.2d 125, 131 [9, 10]. Redemption may be accomplished either by proceeding as provided by statute, Section 443.410 (statutory redemption as of course), or by an action in equity to set aside the trustee’s deed where redemption or otherwise putting the purchaser in status quo is the price put upon the court’s decree. In Arnett v. Williams, 226 Mo. 109, 125 S.W. 1154, 1157, the court said those “statutes [redemption statutes] provide for redemption as of course. They are not intended to apply to equity cases to set aside trustees’ sales and the deeds following as inoperative to pass title because of irregularities, and where redemption is the mere price put upon the decree in order to do equity.” (Bracketed insert ours.) See also Fitzpatrick v. Federer, Mo., 315 S.W.2d 826, 829 [4]; McNatt v. Maxwell Inv. Co., 330 Mo. 675, 50 S.W.2d 1040, 1044 [6-8]; Trotter v. Carter, 353 Mo. 708, 183 S.W.2d 898, 902, 903; Roberts v. Murray, supra.

While plaintiffs did not in their pleading formally offer to place the purchaser in status quo, they did aver that if plaintiffs had known of the foreclosure proceedings they would have paid the balance due on said deed of trust and they adduced evidence at the trial to the same effect. Under the circumstances plaintiffs should not be denied relief; but plaintiffs will be required to place the purchaser in status quo as a condition upon which relief will be granted. Cf. Fitzpatrick v. Federer, supra, 315 S.W.2d 829 [5].

One of the averments in plaintiffs’ petition charged that defendants had no right to sell in that at the time of the notice of and sale defendant was not the owner and holder of the alleged note and deed of trust. If the evidence sustained that averment, the deed would be wholly void and defendants would have acquired no title under it. Peterson v. Kansas City Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770, 775 [5-10], 108 A.L.R. 583. But inasmuch as this action in equity to set aside a void as well as a voidable deed is proper, and inasmuch as our direction on remand would be no different if the trustee’s deed was held to have been void ab initio and in view of our next.succeeding holding herein, we need not rule the contention.

The second count of plaintiffs’ petition sought $3,000 actual and $15,000 punitive damages for wrongful foreclosure in that allegedly defendants schemed and conspired with others to fraudulently deprive plaintiffs of their property. Inasmuch as plaintiffs sought at the trial and have continued to seek on this appeal to have the trustee’s deed set aside, we construe their brief as seeking both the equitable relief of setting aside the deed and, in addition, damages at law for wrongful foreclosure. If plaintiffs wished to recover damages for wrongful foreclosure, they must not only have proved that the foreclosure sale was wrongful because no right to sell existed and thus that the sale was wholly void, but they must at the very least have indicated at the trial or unmistakably in their appellate brief that they chose in the first instance to permit the sale to stand, even if void, and to recover at law for damages. They may not have both the equitable relief of setting aside the trustee’s deed and damages at law for wrongful foreclosure. As explained by the court in Peterson v. Kansas City Life Ins. Co., supra, 98 S.W.2d 775 [5-10]: “When the mortgagee has the right to foreclose, the foreclosure sale passes the legal title. An improper execution of the power of sale may be sufficient ground for a court of equity to set the sale aside. But, until it is set aside, it stands as a valid legal transfer of the title and the mortgagor ought to be barred from claiming damages at law because of the transaction as long as he permits it to stand as a legal conveyance of his title. For him to allow it to stand and bring an action at law, because of it, is in the-nature of a collateral attack upon its validity. Such a sale may be voidable in equity but it-is not void in law. If he desires to challenge-its validity (when it is voidable but not-void), he should attack it directly and he can only do that by a suit in equity. But, when the foreclosure itself is wrongful because no-right to sell exists, then such a sale is wholly void and the mortgagee can acquire no title-under it. The mortgagor has the right to go-into equity and have it set aside. It would be-a cloud on his title, and it would also be a means by which he might lose his title to an. innocent purchaser, because he could be estopped by laches to assert his rights. In that situation, however, the mortgagor can-, let the sale stand, and sue at law for dam-ages, because he has the right to collaterally attack it. By suing to obtain judgment at law to be paid its value, he does not admit its validity but he would thereafter be estopped to attack it in equity. Such a suit for damages at law is an especially appropriate remedy where an innocent purchaser buys at foreclosure, because it gives relief ■against the guilty rather than the innocent party.”

The trial chancellor, in addition to adjudging the trustee’s deed valid, found that there was $1,776.48 due on the second deed of trust at the time of the foreclosure, that Camp had paid $105 foreclosure costs, that there was a balance due on a judgment (unconnected with any matter here involved) in favor of defendants and against plaintiffs in the sum of $801.65, and concluded that plaintiffs were entitled to the difference between the total of those sums and the $4,700 bid by defendants at the foreclosure sale. The trial court therefore adjudged and ordered that of the $6,759.59 paid into the registry of the court by the insurance company, plaintiffs be paid the ■sum of $2,016.87 and that defendants be paid $4,783.13 less the costs of this suit. The ■transcript, as supplemented, discloses that ■on September 1, 1961, while this appeal was pending, the trial court ordered the clerk •of that court to pay the defendants $4,783.13 from the money in the registry of the court. As a result there remains $1,976.46 of the money paid into court by the insurance •company.

It follows from all the foregoing that our order herein should be and it is that the trial court’s judgment is reversed and the case is remanded with directions to the trial court to enter a judgment setting aside and holding void and of no effect the ■sheriff’s (trustee’s) deed in question; ordering the $1,976.46 ($6,759.59 paid into «court, less $4,783.13 paid to defendants) remaining in the registry of the court paid to plaintiffs; awarding plaintiffs a money judgment against defendants in the amount of $151.45 and costs including the costs on this appeal; and adjudging that both notes have been paid and that both deeds of trust have been satisfied and ordering that the property in question be released of any lien or encumbrance by reason of said deeds of trust. (In explanation of the money judgment: There was $1,776.48 principal and interest due on the second and $2,750.20 due on the first deed of trust at the time of the foreclosure. Defendant or defendants had become the owner of those deeds of trust by purchase. Under the provisions of the first and under the provisions of the insurance policy, which named defendants’ assignors the savings and loan association and Cecil Hulsey as insureds as their interests might appear under a standard mortgage clause, defendants were entitled to receive the amount of the mortgage indebtedness from the proceeds of the insurance. 45 C.J.S. Insurance § 919b. (2), p. 1025; 46 C.J.S. Insurance § 1147, p. 27; 59 C.J.S. Mortgages § 328d. (2), p. 452. As noted, defendant paid $105 costs of the sale. The total of the three stated items [$1,776.48, $2,750.20, $105] is $4,631.68, the total amount to which defendant or defendants were entitled from the proceeds of the insurance. That amount deducted from $6,-759.59 leaves $2,127.91 to which plaintiffs are entitled. Deducting from that amount the $1,976.46 actually remaining in the registry of the court leaves $151.45 due plaintiffs.)

HOLMAN and HOUSER, CC., concur.

PER CURIAM

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

All concur.

      . All section numbers refer to sections of RSMo 1959 and V.A.M.S.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. James BUTLER, alias James Davis Butler, Appellant.
    No. 48941.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Gene R. Martin, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., for respondent.
   STOCKARD, Commissioner.

A jury found the defendant guilty of burglary in the second degree. There was an allegation and proof of a prior felony conviction and the court fixed defendant’s punishment at imprisonment for ten years. This appeal resulted in due course.

No brief has been filed by the defendant. Our review extends to the essential portions of the record and to the assignments of error properly preserved in the motion for new trial.

The first three assignments of error are as follows: “The verdict of the jury is contrary to the law;” “The verdict of the jury is contrary to the evidence;” and ■“The verdict of the jury is against the weight of the evidence.” These assignments are so lacking in detail and particularity that they present nothing for appellate review. Supreme Court Rule 27.20, Y.A.M.R.; State v. Townsend, Mo.Sup., 327 S.W.2d 886[2]; State v. Ivory, Mo.Sup., 327 S.W.2d 870[1]; State v. Benjamin, Mo.Sup., 309 S.W.2d 602[10].

The fourth and fifth assignments of error challenge the sufficiency of the evidence. A jury could reasonably find the following. Wilbur Thompson, superintendent of Mid-Continent Grain Company left and locked the premises of the company about 11 o’clock on Sunday morning, January 15, 1961. The front door and north window of the building were not then broken, and he did not give anyone permission to enter the premises after he left. Sometime that morning, the exact time is not shown, George Price, a member of the Kansas City police department, saw defendant while carrying a “wrecking bar” or crowbar come out of the front door of the two-story office building of Mid-Continent Grain Company. Defendant dropped the crowbar when he saw the officer and he stated that he had seen two men run away from the building but that he had not broken into it. After talking to defendant the police officer permitted him to leave. The officer then inspected the premises and found that the glass in the front door and the glass in the north window had been broken. He called for assistance, apparently on his car radio, and then apprehended the defendant who had walked several blocks from the building. Subsequent investigation disclosed that the north window had been pried and that the screen on the front door and on the window had been pulled loose or broken. When apprehended defendant had elevator dust on his clothing. During the interrogation he stated to officer Price that he had entered the building, but he said the door was open, to steal something to obtain money to buy food. Defendant had in his possession an insulated jacket, a jacket liner, a ball point pen and a fingernail clipper all of which was the property of Wilbur Thompson and which had been left in the office building of the Mid-Continent Grain Company. Sergeant Edward Hasenyager of the Kansas City police department, who responded to officer Price’s call for assistance, testified that defendant admitted that he had taken a jacket, a jacket liner, a pen and a fingernail clipper from the office and that the crowbar was his property. In the office building there were miscellaneous desks and grain grading equipment. It is not clear whether the grain was stored in a portion of the building constituting the office or whether the grain tanks or bins were attached to the office building or separated therefrom. It appears by inference that admission to the place where the grain was stored was possible from the office building.

Defendant was charged with and found guilty of burglary in the second degree as defined in Section 560.070 RSMo 1959, V.A.M.S. The elements of such offense, applicable to the factual situation, are a breaking and entering of a building in which are kept or deposited any goods, wares, merchandise or other valuable thing, with the intent to steal or commit any crime therein. From the evidence previously set out the jury could reasonably find the existence of each and every element of burglary in the second degree as defined in Section 560.070.

By his sixth assignment of error defendant challenges Instruction No. 2 “because said instruction [1] was not a proper declaration of the law, [2] misdirected the jury to find the defendant guilty of burglary, second degree, and [3] improperly hypothecated facts not set forth in the amended information nor established by the evidence in the case, * * * [4] assumed certain facts to be true, without requiring the jury to make a finding thereof, and it was [5] confusing and misleading, and when read together with other Instructions given, it was confusing, misleading and conflicting.” The above numbers and brackets have been added. In addition, in his eighth assignment of error defendant asserts that the court erred “in failing to fully instruct the jury on all the law covering the issues raised by the amended information and the evidence.”

In order for an assignment of error in a motion for new trial to preserve anything for appellate review it must set forth the grounds therefor “in detail and with particularity.” Supreme Court Rule 27.20, V.A.M.R. Nowhere in these assignments does appellant state or set forth why or in what manner Instruction No. 2 was deficient, or as to what issue he contends there was no instruction. He states only unsupported conclusions, and it has consistently been held that such general assertions as to the sufficiency of an instruction or as to the failure to instruct present nothing for appellate review. See State v. Johnstone, Mo.Sup., 335 S.W.2d 199[11]; State v. Johnson, Mo.Sup., 286 S.W.2d 787[2]; State v. Weed, Mo.Sup., 271 S.W.2d 557[4], Instruction No. 2 was the principal verdict directing instruction, and it is in the form and substance which has been approved by this court in such cases as State v. Jackson, Mo.Sup., 338 S.W.2d 848[5]; State v. Grant, Mo.Sup., 275 S.W.2d 332[6-8]; and State v. Turner, Mo.Sup., 272 S.W.2d 266[16],

Defendant also assigns as error the fact that in Instruction No. 2 and also in the form of verdict instruction he was referred to as “James Butler alias James Davis Butler.” He asserts that there was no evidence of any aliases being used by him, and that the use of the alias in the instructions amounted to a comment by the court on evidence not before the jury; that this inferred he had a prior criminal record ; and that this violated the purpose and intent of the legislature with reference to trials under the habitual criminal act that the jury should not be informed of the prior criminal record of a defendant.

The evidence shows that when officer Price was interrogating appellant at the office building of Mid-Continent Grain Company he was asked for identification, and that defendant gave the officer a card with the name “Robert Davis” on it and another card with the name “James Davis Butler” on it. This is the only evidence in the record that defendant ever used this name. The evidence of his prior conviction of a felony shows that he was charged under the name of “James Butler.” The purpose of the use of an alias in a criminal proceeding is to identify a person, usually the defendant. Why the prosecution deemed it necessary in this case to use an alias in the identification of defendant is not readily apparent. There was no question as to his identity, and the reference in the instructions to an alias served no purpose. However, the use of an alias, although criticized, was held not to be prej-udicially erroneous in State v. Daniels, Mo.Sup., 347 S.W.2d 874[6], where there was no evidence before the jury of the use of the alias. Here there was at least some evidence of that fact. The alias involved is confined to the middle name “Davis,” and because of such reference we cannot ascribe to the jury a disposition to imply that defendant belonged to the so-called criminal class or that the defendant had a criminal record. The rule adopted in State v. Daniels, supra, at p. 879, is that “ ‘where * * * a reference to the aliases has crept into the proceedings, the situation on appeal will not be controlled by the application of any abstract principle, but by a concrete appraisal of the significance of the incident in relation to the processes of the trial as a whole.’ ” While such “television trial” tactics cannot be sanctioned, in view of the fact that there was at least some evidence before the jury of the use of the alias, the assignment of error is disapproved.

Defendant’s last assignment of error is that the court “erred in failing to give an instruction on circumstantial evidence because the State’s evidence relating to burglary, second degree, was purely circumstantial.” Defendant made no request for an instruction on circumstantial evidence and none was given. The evidence of the breaking in order to effect an entry into the building was circumstantial, but there was direct evidence of the fact of an entry by defendant and of his intent. Under such circumstances no instruction on circumstantial evidence was necessary. State v. Morris, Mo.Sup., 307 S.W.2d 667[11]; State v. Loston, Mo.Sup., 234 S.W.2d 535[7]; State v. Allen, Mo.Sup., 235 S.W.2d 294[4].

Our review pursuant to Supreme Court Rule 28.02, V.A.M.R., discloses no error with respect to the sufficiency of the information, verdict, judgment and sentence.

The judgment is affirmed, and pursuant to Supreme Court Rule 28.14, V.A.M.R., it is directed that the sentence be executed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. William Dean HUTCHIN, Appellant.
    No. 48889.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      James D. Anderson, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., James Wilson Spencer, Sp. Asst. Atty. Gen., for respondent.
   HYDE, Judge.

Defendant was convicted of burglary, second degree (Secs. 560.070, 560.095, statutory references are to RSMo and V.A. M.S.) and stealing (Secs. 560.156, 560.161, see also Sec. 560.110) under the Habitual Criminal Act (Sec. 556.280) and sentenced to ten years for burglary and five years for stealing to run consecutively. Defendant has appealed but filed no brief so we consider all assignments properly made in his motion for new trial. State v. Stehlin, Mo.Sup., 312 S.W.2d 838. Defendant’s motion states ten grounds. Since ground 6 alleges error in overruling defendant’s motion for a directed verdict we will state the facts shown by the State.

Defendant’s motion at the close of the State’s case was waived by offering evidence. State v. Shelby, Mo.Sup., 327 S.W.2d 873, 874, and cases cited. “In determining the sufficiency of the evidence to sustain a conviction, we consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom; and evidence to the contrary is rejected”; State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609, and cases cited; State v. Woolsey, Mo.Sup., 328 S.W.2d 24, 25. Therefore, with the following facts shown by the State’s evidence, this ground is wholly without merit. On July 30, 1960, between 3:00 and 3 :30 a. m., defendant was seen behind the bar of a tavern, called Mutual Bar, located at 1019 Wyandotte, Kansas City, Missouri, by the night foreman of Mutual Garage, O. V. Gordon, investigating after hearing the breaking of glass. After observing defendant through the glass of the back door, Gordon went to the front door and, arriving there, met defendant coming through the broken glass of the front door. Defendant ran through a parking lot and down an alley to Baltimore Avenue. Gordon followed him, at a distance of 10 or 15 feet, without losing sight of him, to the vicinity of 12th and Baltimore, where defendant got into a taxicab. Gordon told the driver “not to take him away because he had broke into a place” and the driver said “he wouldn’t.” Defendant started to get out of the cab, but a police patrol car then turned the corner and Gordon called to the officer driving it. The officer arrested defendant and took him to the Mutual Bar. The officer found the glass plate in the front door smashed; the cash register open, coins scattered on the floor, and the front and back doors securely fastened. A search of defendant produced twenty-one one-dollar bills, ten fifty-cent pieces, seventeen quarters, six dimes, five nickels and three pennies, totaling $31.13. Officer Penson, called by the arresting officer, testified that “the register had been rifled, there was change on the floor, on top of the bar, and also a trail of change toward the front door.” The co-owner of the tavern, John Knowles, called by the police, testified he found money on the bar and on the floor and, upon checking his register, he found between thirty-one or thirty-two dollars missing. The defense was alibi, defendant claiming he was drinking in several taverns during the night, got drunk and was arrested when he got into a cab to leave after the closing of the last bar he visited. However, according to the State’s evidence, he did not account for at least an hour between the time this bar closed and his arrest at 12th and Baltimore.

Grounds 3, 4 and 10 do not comply with the requirements of Rule 27.20, V.A. M.R., being too general to preserve anything for appellate review, stating only that the verdict was against the law, the evidence and the weight of the evidence and was the result of passion, prejudice and bias.

Grounds 1 and 2 alleged error in refusing defendant a continuance after permitting the State to file an amended information and "for the reason that two of defendant’s witnesses were not available to him on the day of the trial.” Concerning this latter contention, there is no such claim shown by the record and no request for a continuance on this ground was made so far as the record shows. Apparently plaintiff was represented by a lawyer of his own choice since he had earlier on arraignment, before the first continuance of his case, refused an offer of the court to appoint counsel for him. The requirements for obtaining a continuance on absence of witnesses are set out in Rule 25.08 and no compliance therewith is shown or claimed. The only reason presented to the court, which was by oral motion, was the filing of the amended information, which made no change as to the crime charged but stated a previous burglary conviction. (Admitted by defendant when he testified.) As to a similar contention, in State v. Wilson, Mo.Sup., 349 S.W.2d 934, 936, we said: “[I]t is wholly without merit because our statute (556.280; see Laws 1959, Senate Bill 117) provides for the consideration of prior convictions (evidence of which shall be heard by the Judge out of the hearing of the jury) in determining punishment. Thus it is always proper to allege prior convictions when the prosecuting attorney has knowledge of them.” See also Rules 24.02, 24.15; State v. Foster, Mo.Sup., 251 S.W.2d 675, 677; State v. Ninemires, Mo.Sup., 306 S.W.2d 527, 530. It further appears that there had been five previous continuances of the case and that the defendant himself stated that he wanted the trial to proceed. Therefore, we hold there was no error in denying another continuance on the showing made.

In ground 5, it was alleged that the court erred in rejecting evidence of “defendant’s competence, his knowledge and ability to discriminate and know the difference between right and wrong.” In ground 7, it was alleged that the court erred in refusing to instruct on “dipsomania and insanity.” In ground 1, it was stated that if defendant had been granted a continuance “the statement of the physician who examined the defendant after the trial was completed * * * would have been available at the time of the close of the continuance.” We think the trial court correctly ruled there was no evidence offered at the trial showing insanity; and that there was nothing on which to base an instruction on insanity. See State v. Duckworth, Mo.Sup., 226 S.W. 15. No witness was asked about defendant’s ability to know the difference between right and wrong. It was shown that while in the penitentiary defendant was sent to the State Hospital at Fulton but it was not shown for what purpose or how long he was there. There was no attempt shown to bring any doctors from Fulton to the trial or to obtain their testimony. The testimony of defendant’s brother, with whom he lived, was that defendant did body and fender work on cars and refinish'ing pianos. His testimony was mainly about the effect of intoxicating liquor on defendant. He did say “he has spells other times, that, are not connected with drinking,” but did not say what those spells were. However, he also said that under the influence of alcohol, defendant “appears to act strange or odd, he doesn’t — isn’t his normal self,” which does not indicate anything wrong when he was his normal self. The court gave an instruction on the effect of voluntary drunkenness which is not alleged to be erroneous in defendant’s motion for new trial.

An affidavit of defendant’s brother filed with the motion for new trial stated that a doctor who examined defendant on February 10, 1961 (the trial was on January 4, 1961) made a finding to the effect that, under the facts as given and related in this cause, defendant did not know the difference between right and wrong. These equivocal statements apparently meant that this was true while defendant was drinking. We have carefully read and considered the testimony in the record relied on and conclude that there was no substantial evidence to make an issue of insanity; that there was no error in the trial court’s rulings on evidence concerning this issue; and that a sufficient showing was not made as to newly discovered evidence to justify granting a new trial. See State v. Stroud, 362 Mo. 124, 240 S.W.2d 111; State v. Brotherton, Mo., 266 S.W.2d 712; State v. Green, Mo., 305 S.W.2d 863; State v. Edmonson, Mo., 309 S.W.2d 616; State v. Whitaker, Mo., 312 S.W.2d 34; State v. Stehlin, Mo., 312 S.W.2d 838; State v. Eno, Mo., 313 S.W.2d 720.

Ground 8 alleged error in not instructing on alibi. The record does not show that defendant offered any instruction on alibi. It has been ruled that “an instruction on alibi constitutes no part of the state’s case”; and that “it is not a question of law upon which the court is required to instruct” as a part of the law of the case because “an instruction on alibi is the converse of the state’s main instruction in so far as such main instruction requires the defendant’s presence at the scene of the crime”; and, therefore, the rule concerning converse instructions should apply. State v. Pope, 338 Mo. 919, 929, 930, 92 S.W.2d 904, 910, 911, and cases cited; see also State v. Chaney, 349 S.W.2d 238, 244. Remaining ground 9 complains of the form of verdict given, saying it required a finding of guilt. This is not true because the instruction submitting forms of verdict properly stated certain forms to be used if the jury found the defendant guilty and others to be used if the jury found the defendant not guilty, with separate forms in each event for burglary, for larceny and for both.

We have examined the record as required by Rule 28.02, V.A.M.R., and find no error respecting the sufficiency of the information, verdict, judgment and sentence.

The judgment is affirmed.

All concur.


author: WESTHUES, Judge.

text:
    STATE of Missouri, Respondent, v. Melvin Oliver GRIDLEY, Alias Bill Gridley, Appellant.
    No. 48722.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    James A. Poynor, Joplin, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.
   WESTHUES, Judge.

Defendant Melvin Oliver Gridley was convicted by a jury in the Circuit Court of Jasper County, Missouri, on a charge of burglary and stealing. The information alleged that Gridley had been previously convicted of crimes and had served prison sentences therefor. The trial court heard evidence as to these previous convictions and made a finding to the effect that defendant had served six separate sentences. The court fixed defendant’s punishment at ten years’ imprisonment in the penitentiary for the burglary and five years’ imprisonment for the stealing, the sentences to run consecutively. From the judgment entered,the defendant appealed.

Defendant has not filed a brief so we look to the assignments of error in the motion for new trial which the trial court overruled. We shall ignore those assignments that do not comply with our rules and preserve no point for review.

The defendant, in a number of assignments, asserted that the evidence was insufficient to sustain his conviction. Among these are that the trial court erred in finding the defendant had served sentences for criminal convictions and that the evidence offered by the State to support the present charge was by a witness who was an accomplice and was not worthy of belief. We shall dispose of these points by stating the evidence offered by the State. The defendant did not introduce any evidence.

Charles Little, a groceryman, testified that on the morning of January 15, 1960, he arrived at his place of business in Duenweg, Jasper County, Missouri, and found that the front door had been forced open. An examination of the store disclosed that merchandise of the value of over $100 and some cash had been taken. He stated that he had locked the door the evening before.

Cecil Weber testified in detail as to the various places he, Fred Moore, and the defendant had visited on the evening of January 14, 1960, including a trip to Tulsa, Oklahoma; that they had agreed to burglarize the Little Grocery Store which was done in the early morning hours of January 15, 1960. Weber testified that he drove the car and acted as the lookout man while the other two went into the store, carried out the merchandise and a cash register, and placed them in the car. The cash register was thrown in a ditch by the side of a road. Weber stated that on the following evening the defendant gave him, the witness, a sum of money as his part of the loot. Weber was cross-examined at length but his version of what occurred was not shaken. He freely admitted that he had served a prison sentence. We rule that the evidence was ample to sustain a finding by a jury that defendant was guilty as charged. A conviction may be had on the uncorroborated evidence of an accomplice. State v. Brim, Mo., 339 S.W.2d 775, l. c. 779, 780(4).

The trial judge heard evidence as to the previous convictions of the defendant. There was evidence by records from a number of courts and prisons that defendant had served six separate terms in various prisons. Photographs were introduced to prove identity. More need not be said to demonstrate that the trial court was justified in finding that defendant had served prison sentences.

The defendant complained because the trial court refused his tendered instructions numbered 11, 12, 13, and 14. No. 11 concerned the evidence of an accomplice; No. 12, the credibility of witnesses; No. 13 and No. 14, the burden of proof. Instructions given by the court fully covered all of these matters and the court was not required to give duplicate instructions. The points must be ruled against the defendant.

In one assignment, defendant stated that the court erred in giving “instruction Number 2 for the reason that said instruction places the burden of proving innocence on the defendant.” We quote that part of the instruction covering this subject matter: ■“The law presumes the defendant to be innocent, and this presumption continues unT til it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the State.” It is apparent that defendant’s point is without merit.

In assignment No. 12, defendant complains that the trial court did not give an instruction defining the word “accomplice.” Words that are in common use need not be defined. In the cautionary instruction concerning the evidence of an accomplice, the court advised the jury that “The Court instructs the jury that they are at liberty to convict the defendant on the uncorroborated testimony of an accomplice alone if they believe the statements as given by said accomplice in his testimony are true in fact and sufficient in proof to establish the guilt of the defendant; but the jury are instructed that the testimony of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime, as to matter material to the issues, that is, matters connecting the defendant with the commission of the crime charged against him and identifying him as the perpetrator thereof, ought to be received with great caution by the jury, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony.” We are of the opinion that that instruction was sufficient for the jury to understand the meaning of the term “accomplice.” 23A C.J.S. Criminal Law § 1227, p. 564.

Defendant claims error in that the court gave instruction No. 8 which pertained to the credibility of witnesses. Defendant says it was error to tell the jury “that the jury could consider the witnesses feeling to or relation to the prosecution.” The wording of the instruction was that the jury should take into consideration among other things “the motives actuating the witness in testifying, the witness’s relation to or feeling for or against the defendant or the complaining party, * * Defendant has not set forth any reason for his deeming the instruction erroneous. The instruction as given was a correct statement of the rule on credibility of witnesses.

Defendant, in his motion for new trial, stated that the trial court restricted the cross-examination of witness Weber “as to previous convictions and to matters pending against said witness.” The record shows that Weber was cross-examined at length; that he admitted he had been convicted. He was also cross-examined as to charges then pending against him. The court permitted an extensive cross-examination. Finally, the defense attorney asked Weber the following question: “Since sometime in March. Now, Mr. Weber, as I recall, I saw in the paper where you and two other fellows were charged with a strong armed robbery — ” On objection, the court stated, “Mr. Poynor, you know better than that, to relate what you read in the paper. You know very well and I think you ought to be censored for it. Now you have no right to bring before this jury something you read in the paper and ask him about it.” That action of the court was made the basis of an assignment of error. In our opinion, the court permitted a liberal cross-examination of this witness. The statement or the question which prompted the court to censor defendant’s attorney was improper and justified a reprimand. State v. Pinkston, Mo., 333 S.W.2d 63, l. c. 66, 67(1-3).

In the last two assignments, defendant stated that the court erred in not sustaining defendant’s objection to statements of the prosecutor as to his opinion of the guilt of the defendant and in failing to sustain an objection to an argument of State’s counsel to the jury to make an example of the defendant. There is no merit in either assignment. The defendant did not point out or designate in what portion of the argument the State’s attorney expressed his private opinion of the guilt of the defendant. In our research, we have found only one objection to the argument on that ground. The prosecuting attorney stated, “There is no doubt in my mind that the State has proved that, by the witnesses on the stand — ” At this point, defendant’s counsel objected. The prosecutor proceeded to relate the evidence as given by witnesses. We rule the argument was proper and that it did not amount to an expression of the prosecutor’s personal opinion. State v. Lunsford, Mo., 331 S.W.2d 538, l. c. 541(6). The prosecutor was entitled to argue that the jury should convict the defendant and to assess a punishment to set an example to others for the purpose of protecting the community. That is one of the purposes of inflicting punishment for violations of the law. The argument was not improper. 23A C.J.S. Criminal Law § 1107, pp. 202-210.

We have examined matters not required to be preserved for review and find no reversible error therein.

The judgment is affirmed.

All concur.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Frank ODOM, Appellant.
    No. 48929.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    J. K. Owens, Kansas City, for appellant.

      Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., for respondent.
   HOLMAN, Commissioner.

Defendant was charged with the unlawful sale of narcotics, i. e., “one capsule containing approximately one grain of heroin, a derivative of opium.” See Section 195.-020, RSMo 1959, V.A.M.S., and Section 195.200, Laws of Missouri 1959, S.B. No. 240. The amended information also charged prior felony convictions. The trial court heard evidence outside the presence of the jury and found that defendant had been priorly convicted of the said felonies as charged. The trial resulted in a verdict of guilty and the court fixed the punishment of the defendant at imprisonment in the penitentiary for a term of 15 years. Section 556.280(1), RSMo 1959, V.A.M.S. Defendant has duly appealed from the ensuing judgment and sentence.

The main witness for the State was Melvin Hogan. He admittedly was once a user of narcotics and was convicted for the use thereof in the federal court in 1949 and sentenced to two years’ imprisonment. Captain Flavin of the Kansas City Police Department aided in getting Hogan a parole after he had served nine months and since that time Hogan has helped the police department from time to time in apprehending persons selling narcotics. Hogan testified that he was acquainted with the defendant; that he saw him on Twelfth Street on November 11, 1960, at which time defendant asked if he wanted to buy some heroin; that he told defendant he did but would have to go to the pawn shop to get some money; that he then went to a nearby drugstore and called Captain Flavin who sent Sergeant Hitchcock to meet him; that Sergeant Hitchcock searched him and then gave him a five dollar bill; that he gave a receipt therefor which had on it the serial number of the bill; that he then went into a building on Twelfth Street where he met the defendant and they went into a lavatory together where defendant pulled out “a little green gum package” and emptied the contents, three or four red capsules, into his hand; that he kept one of the capsules and put the others back in the gum wrapper and defendant put them in his pocket; that he gave defendant the five dollar bill he had obtained from Sergeant Hitchcock and then left the building; that he met Sergeant Hitchcock on Twelfth Street and gave him the capsule, and then went to police headquarters.

Sergeant Hitchcock testified concerning the fact that he met Melvin Hogan and gave him the five dollar bill and received the red capsule from him. He further testified that he then parked his car near the building that Hogan had recently come out of, and within a few minutes the defendant came out of that building and started to walk east on Twelfth Street; that he, Hitchcock, immediately approached the defendant and said, “Frank, you are under arrest”; that defendant was carrying a light topcoat and “threw this coat up to shield his face, and immediately threw something in his mouth”; that defendant resisted arrest and appeared to be trying to swallow something and continued to chew rapidly; that at that time patrolman Jenkins came to his assistance and they were able to handcuff the defendant; that he reached into defendant’s pocket and pulled out a roll of bills and then took defendant to Captain Flavin’s office at police headquarters; that an examination of the receipt and a five dollar bill taken from defendant indicated, from the serial number, that the bill was the one previously given to Hogan; that Captain Flavin asked defendant, “What in the world are you trying to do now? He says, ‘Well, Mr. Flavin, I’m selling. I’m selling this to support my own habit.’ ” The witness then informed the captain that defendant had gulped something at the time of his arrest and Captain Flavin told him to take defendant to the hospital immediately and have his stomach pumped because if he had swallowed too much dope it might kill him.

James Furlong testified that he was a chemist for the Kansas City Police Department and that Sergeant Hitchcock, on November 12, 1960, had delivered to him an envelope containing a red capsule with the request that he analyze and determine the identity of the white powder therein; that the envelope had the following information thereon: “Frank Odom, 1512 Olive; 1 cap. of heroin, purchased 11-11-60 by Melvin Hogan, $5.00; money recovered.” He stated that he analyzed the white powder and found that it was heroin, a derivative of opium.

The State then closed its case in chief and the only evidence offered by defendant was his own testimony. Defendant denied the charge and stated that Hogan had given him the $5 as a payment upon a loan of $10 he had made to him about two years before. He stated that in 1958 Hogan had become angry during an argument over a girl and had threatened him. Defendant also testified that he had been taken to the hospital and strapped to a table where hospital employees, under the supervision of Sergeant Hitchcock, had pumped his stomach and had given him some medicine. He then testified as follows: “Q. What did that cause you to do? A. Well, it caused me to — about a half hour later, to start vomiting.

“Q. The contents of your stomach after they forced this medicine down you, they kept that contents and checked it, didn’t they? A. Yes, they did.

“Q. And the same when they pumped your stomach, didn’t they? A. That is right.”

In rebuttal the State offered the testimony of Dr. Boydston who related that they had attempted to pump defendant’s stomach but were not completely successful so they gave him a “shot” which would cause vomiting; defendant did vomit and they placed the stomach contents in a small jar. The State thereafter offered witnesses who accounted for possession of the jar containing the contents of defendant’s stomach obtained on that occasion and showed that this jar was delivered to Mr. Furlong, the police department chemist. Mr. Furlong testified that he had run an analysis on the contents of the jar and found therein traces of heroin, and that it also contained a reddish gelatine-like substance which could have been the remainder of a capsule that dissolved in the stomach.

Defendant has not filed a brief in this court so we will consider the assignments in his motion for new trial.

Assignments 1 and 2 question the sufficiency of the evidence to support the verdict. These assignments are without merit. A review of the statement of facts herein clearly shows that there was ample evidence to support the submission of this case to the jury. See State v. McIntosh, Mo.Sup., 333 S.W.2d 51.

The fourth assignment asserts that the State failed to prove the charge “beyond a reasonable doubt.” It is not our province to determine that question. That is an issue for the jury under proper instructions. We are of the opinion, as heretofore indicated, that there was substantial evidence sufficient to support a finding beyond a reasonable doubt that defendant was guilty of the offense charged. This assignment is therefore ruled adversely to defendant.

The remaining assignment reads as follows : “The court erred in allowing, over the objection of the defendant, evidence by the State as to alleged narcotics found in the stomach of the defendant, forcibly taken from him by pumping his stomach, which constitutes an unlawful search and seizure.” In considering this contention it should be borne in mind that the evidence in question was not offered during the presentation of the State’s case in chief. The only reference to the matter at that time was the testimony of Sergeant Hitchcock that Captain Flavin had told him to have defendant’s stomach pumped because “if he had swallowed too much dope, it might kill him.” There was no showing then that the pumping had actually been done or that the contents had been retained and tested. These facts were all brought out by the defendant in his testimony on direct examination. Thereafter, in rebuttal, the State offered evidence as to the analysis of the stomach contents.

The Supreme Court of the United States in the case of Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, held that evidence of narcotics obtained from a defendant’s stomach by “pumping” or by medically induced vomiting should not have been admitted under the factual situation there presented. The decision was based upon the proposition that such methods offend a sense of justice and evidence thus obtained is inadmissible under the due process clause of the Fourteenth Amendment of the United States Constitution.

In State v. Newcomb, 220 Mo. 54, 119 S.W. 405, this court held that the trial court erred in permitting a physician to testify as to the results of a physical examination of defendant which was made upon the order of a justice of the peace pending the preliminary hearing of the defendant. It was said in the opinion that said examination was a violation of the constitutional right of defendant not to be compelled to testify against himself.

Although we need not and do not rule the question, it would appear from the cases heretofore discussed that had the evidence complained of been offered as a part of the State’s case in chief, and appropriate and timely objection made thereto, the trial court would have erred if it had admitted same. However, in the situation here presented we have concluded that the trial court did not err in the admission of said evidence.

“It is a well settled rule * * * that, where either party introduces part of an act, occurrence, or transaction, * * * the opposing party is entitled to introduce or to inquire into other parts of the whole thereof, in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary, or prove his version with reference thereto. * * * This rule has been held to apply * * * even though the evidence was in the first place illegal * * 22A C.J.S. Criminal Law § 660(c), pp. 655, 657, 658.

In this case the defendant voluntarily testified to the facts concerning the manner in which the contents of his stomach were obtained and stated that “they kept that contents and checked it.” There was nothing in the State’s case in chief which reasonably required that defendant relate that testimony in connection with his defense. But having opened the door to that transaction it is but common fairness that the State be permitted to show the results obtained when it “checked” the stomach contents. After defendant had testified that the “contents” were “kept” and “checked,” if the State had not been permitted to show the results of its analysis, the jury could reasonably have concluded that no trace of heroin was found in said contents. This would have permitted the defendant to obtain an unfair advantage by offering a portion of the facts relating to illegally obtained evidence and then using constitutional guarantees as a shield against the admission of the remainder of the transaction. The following cases tend to support our conclusion: State v. Cochran, 356 Mo. 778, 203 S.W.2d 707 [15]; Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503; State v. Colvin, 226 Mo. 446, 126 S.W. 448 [16]; and State v. Lynn, Mo. App., 184 S.W.2d 760 [7].

We will briefly mention another ground supporting our view that the trial court did not err in overruling defendant’s objection to the evidence in question. Just prior to the offer of testimony concerning the result of the analysis of the stomach contents, defendant’s attorney stated that said evidence was obtained as “the result of an unlawful search and seizure of the defendant and therefore we object. Since the ground of objection was “unlawful search and seizure” we are of the opinion that defendant, as a condition to a valid objection on that ground, was required to have theretofore filed a motion to suppress said evidence.

Supreme Court Rule 33.03, V.A.M.R., provides in part, as follows: “(a) A person aggrieved by an unlawful search and seizure made by a peace officer and against whom there is pending any criminal proceeding growing out of the subject matter of said search and seizure, may file in the court in which such proceeding is pending, a motion to suppress * * * any evidence gained by the peace officers by means of such search. Such motion may be based upon any one or more of the following grounds: * * * 5. That in any other manner the search and seizure violated the rights of the movant under Section 15 of Article 1 of the Constitution of Missouri or Amendment 14 of the Constitution of the United States. * * * The motion to suppress evidence shall be filed before the commencement of the trial or hearing unless opportunity therefor did not exist or unless the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain such a motion during the trial or hearing.” We have consistently held that “when evidence is offered at the trial and objection that it was obtained by illegal means is then made for the first time, the court will determine only whether the evidence is relevant and competent. It will not pause to determine the collateral question as to how the evidence was obtained.” State v. Tull, 333 Mo. 152, 62 S.W.2d 389, 392. Defendant did not file any motion to suppress prior to the trial or seek to file such a motion during the trial. Under those circumstances he is in no position to now claim that the evidence was obtained by “unlawful search and seizure.”

An examination of the record as required by S.C. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.