text:
    STATE of Missouri, Respondent, v. Gerald Francis TETTAMBLE, Appellant.
    No. 50911.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Hale W. Brown, Kirkwood, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Sp. Asst. Atty. Gen., Sikeston, for respondent.
   HOUSER, Commissioner.

Gerald Francis Tettamble was convicted of murder in the second degree and sentenced to 99 years in the custody of the Department of Corrections. He was represented by counsel, who filed a motion for a new trial and after that was overruled filed a notice of appeal. Neither appellant nor his attorney filed a brief on appeal. In this situation we review all assignments of- error properly preserved in the motion for new trial. State v. Malone, Mo.Sup., 382 S.W.2d 679.

The evidence favorable to the state demonstrated the following set of facts: John Howell and two other persons suspected of complicity in a burglary were arrested and confined in the St. Francois County jail on June 25, 1963. Howell was not sick on admission to the jail, and was not out of the jail at any time after his admission and prior to his death. The three suspects were held in common with other prisoners, including Tettamble and one Stanley Johnson. On the evening of June 26 Tet-tamble told Howell to fight an inmate named Wampler or else Howell would have to fight Tettamble. Tettamble was at least 6 feet 2 inches tall, whereas Howell was 5 feet 9 inches in height. Howell- and Wamp-ler wrestled around for 4 or 5 minutes. When they quit and “laid down” Tettamble told Howell he would have to fight someone else. Howell then wrestled with prisoner Ransom. Then Tettamble had Howell wrestle with one Maples. No blows were struck in the course of this seuffling. Later Tettamble and Johnson summoned Howell into a cell. They had a blanket over the door. Tettamble tried to force Howell to perform unnatural sex acts with Tettamble. When Howell refused to comply with Tettamble’s demands Tettamble slapped him and then, using his fists, hit Howell “real hard” blows — “hard licks”— in his chest and stomach, over a period of 15 to 20 minutes. Then Johnson backed Howell up against a wall, “fighting” him for 10 or 15 minutes, striking him 10 or 15 times in the stomach. When Johnson quit Tettamble started in on Howell again, hitting him in the stomach, chest, side and arms. Howell was hollering, trying to get them to quit, trying to cover and defend himself. He did not “fight back” at Tet-tamble or Johnson. Afterwards Howell laid down on the bed, complaining of his stomach. Later Howell, with all of his clothes stripped off, was seen crawling on the concrete floor on his hands and knees before Tettamble, who grinned at two of the other inmates, took his foot and kieked Howell, who fell 2 or 3 feet, hitting his stomach or midsection on and across a pieee of channel iron 2 to 4 inches high — an iron track on which the cell door slides back and forth. Howell groaned. It knocked the breath out of him. He got up, holding his stomach, unable to talk. Later, complaining of his stomach, he went into his cell and laid down. Next morning Howell was “in bad pain.” He walked “real stiff like he couldn’t hardly move.” Tettamble told him to do some push-ups and it would take the cramps out of his stomach. He ordered him to do 50 push-ups or else Howell was going “to get some more of what he got before.” Howell did 3 push-ups but could do no more. The pain increased during the day. At 5 p.m. on June 27, 1963 he “got real bad.” The inmates beat on the walls to get help, to get a doctor. An hour later a doctor arrived, examined Howell and pronounced him dead. Howell died from a fresh perforation wound in the stomach resulting in peritonitis. The injury was 15 to 24 hours old. A sufficiently hard blow on the stomach with a fist can rupture a stomach. A man hitting Howell in the stomach with force 10 or 15 times with his fists and kicking him with his foot so that his stomach landed on a metal object 2 to 4 inches high could have caused the stomach^ perforation. After Howell’s body was takpi from the jail Tettamble in an argument with another inmate told the latter that “he’d better watch it or he’d put a hole in his stomach like he done Howell.” — Tettamble told the other prisoners not to say anything about what happened; that if anyone asked whether anybody hit Howell, to tell them that no one touched him. Thursday morning, June 27, Tettamble and Johnson unsuccessfully attempted to escape from jail by using an iron slat and threatened one prisoner if he said anything about the fighting in jail. Tettamble told another prisoner that he was glad Howell was dead and said “now he can’t rat on me.” The inmates of the jail, afraid of Tettamble, at first denied to investigating officers that there had been any fighting or misconduct in the jail at any time. After Tettamble was removed from the jail they freely talked and told what had occurred.

The first assignment in the motion for new trial is that the court erred in not declaring a mistrial on account of the statement made by the prosecuting attorney during the voir dire examination that the father of the boy “that was killed” was sitting in the front row. On objection the panel was instructed to disregard that statement. The prosecuting attorney then stated that the boy “died in jail” and that his father was in the courtroom. The prosecuting attorney asked the father to stand up. The panel was asked whether they knew him and to raise their hands if any of them had any kind of relationship with the father. No hands were raised. The prosecuting attorney did not ask any other persons to stand. After three questions were asked of the panel, and after the court had ruled on objections to two questions and the third question was withdrawn, counsel for defendant for the first time orally moved for a mistrial on the ground that having the boy’s father stand up in front of the entire panel after making the objectionable statement that the boy was “killed” in the jail was calculated to prejudice the jury against defendant. Whether the prosecuting attorney was acting in good faith was a matter for the trial court to determine in the exereise of its discretion. State v. Flinn, Mo.Sup., 96 S.W.2d 506, 509 [2]. We find no abuse of discretion in the court’s ruling. In Flinn, a homicide case, the prosecuting official drew the attention of the jury to the deceased’s widow, who was in the courtroom, and stated that she was the widow of “this murdered man.” The overruling of an objection to that statement was held nonprejudicial, and we so rule in the similar circumstances before us.

Instruction S-l recited that defendant and Johnson were charged together with murder, that a severance had been granted and that only defendant Tettamble was on trial “at this time.” Appellant excepts to these recitals on the ground that they would cause the jury to believe that Johnson would be tried at a later date and that this jury was in competition with another jury, or that what this jury did would be a precedent for another jury in the future. Since every defendant is entitled to- a trial conducted as though he had been charged separately, State v. Castino, Mo.Sup., 264 S.W.2d 372, 375, citing Abbott’s Criminal Trial Practice, 4th Ed., § 167, pp. 303-304, it is better practice not to allude to or instruct as to the fact that the defendant on trial had formerly been charged with others and that a severance had been granted. Such an allusion, coupled with a reference by the trial judge to the fact that one of those jointly charged had already plead guilty, has been ruled reversible error. State v. Castino, supra. Absent the latter element, such an allusion or instruction, while considered unnecessary, is not necessarily prejudicial, State v. Deppe, Mo.Sup., 286 S.W.2d 776, 780, 781 [7], and we find no prejudice to appellant’s rights in this case based upon the claim that the jury may have been led to believe that it was in competition with or was establishing a precedent for another jury.

It is further objected'that S-l failed to inform the jury that the recital of the charge was no evidence of the guilt of defendant. After informing the jury of the crime with which defendant was charged S-l clearly told the jury that defendant plead not guilty and that this raised an issue of fact which the jury was to determine “from all the evidence in the case,” and that it was the jury’s duty to find defendant guilty or not guilty according to the law as declared by the court in the instructions and the evidence as the jury received it under the direction of the court. This sufficiently admonished the jurors with respect to their duties. The further admonition suggested was not necessary.

Exception is taken to the language of the verdict-directing instructions “on the 26th day of June, 1963, or at any time prior to the institution of this cause on the 13th day of July, 1963, * * * ” on the ground that the italicized language gave the jury a roving commission to find defendant guilty “of any act that the defendant had done at any time * * * presumably from the date of his birth until the date of the filing of the charge.” This exception is not well-founded. Time is not of the essence of the offense of homicide. The proof of its commission is not limited to the precise date stated in the information. It may be shown to have been committed at any time. There is no statute of limitations on the crime of murder. § 541.190, V.A. M.S. In the case of an offense for which no limitation of time is fixed the court need not fix a time limit within which the jury must find the commission of the offense. State v. Swain, 239 Mo. 723, 144 S.W. 427 [3].

Exception is taken to the language of S-3 (the verdict-directing instruction submitting second degree murder) which required that an assault, hitting, striking, etc. be done feloniously, wilfully, premeditatedly, and with malice aforethought, but not deliberately, in order to find defendant guilty of second degree murder. Appellant argues that this had the effect of begging the question; that a jury should be instructed on what it must find and not be told what it does not have to find. This argument is fatuous. Lack of deliberation is the factor which distinguishes second from first degree murder. State v. Reagan, Mo.Sup., 108 S.W.2d 391, 396 [9]. From time immemorial the classic definition of second degree murder has been “the killing of a human being wilfully, premeditatedly, and with malice aforethought, but without deliberation.” State v. Bruton, Mo.Sup., 383 S.W.2d 525 [2], and cases cited l. c. 528. The words “but not deliberately” were necessary and proper in S-3.

The requirement that the jury find that a mortal wound was inflicted is challenged on the ground that there was no evidence that defendant inflicted a mortal wound. Our recital of the facts refutes this argument.

The manslaughter Instruction S-4 is attacked. It is urged that it did not define justifiable homicide. S-4 told the jury that manslaughter is the killing of a human being not herein declared to be murder in the second degree, or excusable or justifiable homicide, and authorized a conviction of manslaughter upon the finding of an unlawful and intentional hitting, striking, beating and mortally wounding, without malice and without deliberation and not in the lawful defense of defendant’s person. It was not necessary to give the jury the statutory definition of justifiable homicide, § 559.040, V.A.M.S., for the reason that there was no evidence that defendant inflicted the mortal wound in resisting an attempt to murder defendant or to commit a felony upon him, in the lawful defense of his person, in the apprehension of any person for a felony committed, in lawfully suppressing a riot or insurrection or in lawfully keeping or preserving the peace. See State v. Slaten, Mo.Sup., 252 S.W.2d 330; State v. Westmoreland, Mo.Sup., 126 S.W.2d 202 [5].

Appellant contends that the evidence did not warrant the giving of a manslaughter instruction because the evidence did not show beyond a reasonable doubt when and how deceased sustained the rupture to his stomach, or when and how a mortal blow was inflicted. We find ample evidence from which a jury could find that the mortal blow, a perforation wound of the stomach, was inflicted on Wednesday evening, June 26, 1963, in the course of a series of blows and knockdowns administered to John Howell over a period of 15 to 20 minutes by appellant, who beat and struck John Howell in the stomach and kicked him while crawling on the floor, causing him to fall onto an iron railing, and that the perforation wound of the stomach was followed by peritonitis which caused his death the following day.

Instructions S-5 and S-6 respectively submit assault with intent to do great bodily harm with and without malice aforethought. §§ 559-.180 and 559.190, V.A. M.S. Appellant challenges them on the ground that the evidence does not show that a dangerous and deadly weapon was used or that death resulted while appellant was committing a felony. In order to convict a defendant of these crimes. the use of a deadly weapon or his engagement in the commission of a felony is not a prerequisite. He who adopts any other means or force likely to produce great bodily harm may be convicted under these sections.

We find no error in S-4, S-5 and S-6, but appellant could not complain of them even if they were erroneous, since he was convicted of the more serious offense of murder in the second degree. Any error in them would be cured by the verdict. Mo. Digest, Homicide, ‘§=’340 (4).

Instruction S-7 follows:

“You are instructed that the law presumes the innocence, and not the guilt, of the defendant: and this presumption attends him throughout the trial, and at the end entitles "him to an acquittal unless the evidence in the case when taken as a whole satisfies you of his guilt beyond a reasonable doubt. You are, however, instructed that a reasonable doubt of the guilt of the defendant which would warrant you in acquitting him on the ground of your having such reasonable doubt of his guilt should be a substantial doubt of his guilt upon a full and fair consideration by you of all the evidence, facts, and circumstances in the case, and not a mere possibility that he may be innocent.”

Appellant claims that S-7 limited the burden of proof to the satisfaction of the jury and that it is in fact a converse of the one that should have been given in that while intended to require the jury to find defendant guilty beyond a reasonable doubt it spends most of its language instructing the jury “how to get around the purpose of the instruction.” We find in S-7 no improper or prejudicial limitation on the burden of proof. A requirement that guilt be established to the satisfaction of the jury and beyond a reasonable doubt does not “whittle away or minimize the defendant’s rights and the presumption of innocence to which he is entitled.” State v. Caffey, Mo.Sup., 365 S.W.2d 607, 612 [11]. Appellant does not specify what different instruction should have been given and does not cite any case in support of his criticisms. S-7 was given in precisely the same language in State v. Spaugh, 200 Mo. 571, 98 S.W. 55, where, in response to the attack made on it, it was said that “It has often been approved by this court, and is entirely sufficient.” 98 S.W. l. c. 63 [6a].

It is urged that the court erred in permitting the prosecuting attorney to refer to appellant in h'is closing argument as a sexual pervert who should be put away, “since there was no perversion evidence actually proven.” It is true that the prosecuting attorney referred to Tettamble as a sex-perverted individual and recommended to the jury that he be taken out of society. Both the reference and the recommendation, however, were amply justified and constituted reasonable deduction and legitimate comment under this record, the sordid details of which are so repugnant that they will not be recited in this opinion.

Error Is assigned in permitting Dr. Roberts to testify concerning skin tissues on slides, for the reason that no proper foundation was laid. Dr. Cooper, a qualified M.D, and pathologist, performed an autopsy on the badly battered body of John Howell at the funeral home. Among other things he found bruises on the arms of the deceased, and a perforation wound of the stomach. He took tissues from both arm and stomach. Slides of both were made and examined under a microscope. These slides were identified at the trial by Dr. Cooper as slides of tissue from deceased, prepared by a technologist under his direction. In his opinion the tissue from the bruised arm revealed an injury 3 to 5 days old, whereas the stomach tissue indicated that the perforation wound in the stomach was less than 24 hours old. Dr. Roberts is another qualified M.D. who specializes -in clinical pathology. Dr. Cooper testified that Dr. Roberts had occasion to examine -these slides, and Dr. Roberts testified that he examined them. Dr. Roberts gave as his opinion that the injury to the tissue said to be from an arm showed older inflammatory changes, “probably several days duration” whereas the slides of the stomach tissue showed a very acute inflammation wound that must have been very recent, somewhere in the neighborhood of 15 to 20 hours old. The record shows that a proper foundation was laid for this testimony.

Appellant urges that the testimony of Drs. Cooper and Roberts should not have been allowed to be considered by the jury “since the testimony of Dr. Cooper and the evidence he gave contradicted itself * The alleged contradiction is not pointed out. We have examined Dr. Coojper’s testimony -with care. He testified directly, carefully and to the point. He was rigorously cross-examined. The objection that his testimony was improperly submitted to the jury on the ground that it contradicted itself is extravagant and entirely without merit.

Finally, appellant complains that an instruction on circumstantial evidence was not given, but appellant fails to give any reason why this type of instruction was required under the evidence in this case. An examination of the transcript shows -that no request for a circumstantial evidence instruction was made. In the absence of a request the court cannot be convicted of error in failing to instruct on this subject. State v. Morris, Mo.Sup., 307 S.W.2d 667, 675; State v. Allen, Mo.Sup., 235 S.W.2d 294 [4]; Mo.Digest, Criminal Law, ©=>824(9).

Appellant, a prisoner in the penitentiary, requested to be allowed to appear in person at the oral argument of his appeal. His request was granted and he was present in court when his case was called. Not prepared to argue the case, appellant asked for and was given 15 days within which to file a brief. The case was submitted on briefs. On the 17th day appellant’s handwritten brief was received and filed in the office of the clerk of this court. Although late, we will consider it. In it appellant raises one point and one point only.: that the magistrate erred in not appointing counsel to represent appellant at the preliminary hearing and in not advising Him of his right to the appointment of counsel, although appellant requested to consult with counsel at the time. Appellant cites the following cases in support of his position: Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Snyder v. Com. of Massachusetts, 291 U.S. 97, 118, 54 S.Ct. 330, 336, 78 L.Ed. 674. These cases are not in point. None of them deals with the right to counsel at a preliminary hearing where the defendant had competent counsel at the trial. The law in this state is well settled that “Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.” State v. Turner, Mo.Sup., 353 S.W.2d 602, 604 [6-8], cited and quoted with approval in State v. Small, Mo.Sup., 386 S.W.2d 379, 381, decided February 8, 1965. And see State v. Phelps, Mo.Sup., 384 S.W.2d 616, 619 [6]. Appellant had competent counsel at the trial. Any -defect in connection with the preliminary hearing was waived by appellant failing to object and going to trial. State v. Small, supra, 386 S.W.2d, l. c. 381 [3]; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302 [1].

Under Criminal Rule 28.02, V.A.M.R. we haye reviewed the information, verdict, judgment and sentence on the record before us and we find them proper in form and substance.

The judgment is affirmed.

WELBORN and HIGGINS, CC, concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: EAGER, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Alan Daniel WILWORDING, alias Daniel Allen Wilwerding, Appellant.
    No. 51048.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Henry S. Stolar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Alan Daniel Wilwording and Daniel Allen Wilwerding, pro se.
    William A. Moon, Court Appointed Attorney, Springfield, for appellant.
   EAGER, Presiding Judge.

Defendant was charged by information with first degree robbery committed by means of a dangerous and deadly weapon and also with a prior conviction. He was found guilty by a jury and sentenced by the court to be imprisoned for a term of twenty years. Motion for new trial was filed and overruled. Defendant was given leave by this court to file a notice of appeal out of time, and be was permitted by the trial court to procure a transcript in forma pauperis. The case has been briefed here by counsel. Since there is no contention that the evidence was insufficient to sustain a conviction, we shall not make a detailed statement.

Shortly before nine o’clock on .the evening of July 13, 1963, the So-Lo Market in Springfield was robbed by two men; one went to a check-out stand, held an automatic pistol -on the checker or cashier, announced that it was a holdup, and had the checker put all the bills from the cash register into a paper bag, which he then took. The other man went to the small office where one William James Wilkinson, President and General Manager of So-Lo Markets, Incorporated, was counting the receipts of the day, pointed a pistol at him and had him put the loose currency in a bag. The man who had robbed the checker then came to the office and got Wilkinson, and at gunpoint had him clean out another cash register and then the office safe. No resistance was made in the face of the two pistols. The total money taken was well over $5,000.

The defendant was positively identified at the trial as the robber at the check-out station by William Wilkinson, by the checkout boy, by Guy Wilkinson (manager of the local store) who happened to come into the store just at the time of the robbery, and by two customers who were near the checkout station. Four of these witnesses had also identified defendant from groups of four or five men in the police lineup; three had identified him again in the detectives’ room at police headquarters under different lighting. There were certain more or less minor discrepancies in the descriptions of sunglasses worn by the defendant, and perhaps in other particulars. A Springfield barber, who was present at the check-out counter, testified that, in his opinion, the defendant was not the man who held up the check-out boy; he arrived at that conclusion -largely on account of the appearance of defendant’s hair. The defendant’s father, who lived in Kansas City at the time of the robbery, testified that the defendant came to his trailer home for a few minutes at about 11:00 p. m. on the night of July 13, 1963; also, that about a month earlier he had given his son $1,000 to get him started in a business. One Eula Dulin, who was with the father at the time, also corroborated his testimony concerning the brief visit of the son. Ronald Kennedy, then serving a twenty year sentence in the Missouri penitentiary for the same robbery and with admitted prior convictions, was brought to the trial on a writ of habeas corpus testificandum; he testified that the defendant Wilwording had nothing to do with the robbery and he named a supposed person whom -he said had participated in it with him. Defendant was arrested on July 20, 1963, practically on the Missouri-Kansas state line, by a Prairie Village, Kansas, patrolman who had a pick-up order for the car in which he was riding; the pick-up order was on .a different charge or complaint. When the car was stopped, the men were taken out and the officer was in the process of searching the driver at the patrol car when Wilword-ing, the passenger, jumped back into his car and drove north on State Line Road at 80-90 miles an hour in heavy traffic, with the officer following in the patrol car. After defendant had struck three other cars., and after the firing of three or four shots by the officer which deflated one or more tires, defendant’s car was sufficiently damaged that he was forced to stop. He was then arrested, but only after another brief attempt to flee. Ten twenty dollar bills were found on his person. Brief rebuttal testimony was produced by the State; this -tended -to reflect discredit upon the testimony of Kennedy, but it is -unnecessary to detail it here, as the fact issue in the case was very simple. Any further facts which may be necessary will be developed in the body of the opinion.

The first point made in defendant’s brief is that the court erred in permitting the State, over objection, to produce evidence of a prior conviction “after the submission of the case to the jury.” That evidence was presented at a time when the jury had recessed for lunch; two witnesses for the State, customers of the store, had testified identifying the defendant. Four witnesses for the State on the merits followed thereafter. The evidence thus complained of consisted of: a certified transcript of a judgment and sentence of the Circuit Court of Jackson County, entered after a plea of guilty to the offense of stealing from -the person, with a sentence of two years at the Algoa Reformatory; a transcript of the record of the Department of Corrections showing defendant’s incarceration and discharge on three-fourths time; and the testimony of a Springfield detective that the defendant had stated to him that he had served thirteen months in the Missouri penitentiary, ending June 1, 1963 (which date conformed to the discharge date of record). Counsel for defendant objected at the time for the reasons that “the trial has already started and the jury has been sworn,” that opening statements had been made, and a “portion” of the State’s witnesses had testified. Counsel further stated: “I didn’t know this was going to occur. We haven’t had the opportunity to have the advantage of cross examination of the state’s witness before this defendant. That makes a lot of difference in the way you cross examine witnesses as to whether or not the Judge or the jury is going to pass the sentence.” A formal objection to the record of the Department of Corrections has not been preserved in defendant’s brief and is waived. At the conclusion of this hearing the court found that the defendant had previously been convicted of a previous crime and that he was sentenced and confined therefor.

Our Second Offense Statute, Section 556.280 RSMo 1959 (Laws 1959), V. A.M.S., provides that the hearing shall be held by the judge “out of the hearing of the jury prior to the submission of the case to the jury * * Counsel here argues that the case was submitted when the jury was sworn. The authorities cited are wholly inapplicable. They consist of 16 C.J., Criminal Law, §§ 390-391 (1st Ed.), and the Georgia case of Fortson v. State, 13 Ga.App. 681, 79 S.E. 746. Both are concerned only with the time or stage of a prosecution at which a nolle prosequi may be entered without the consent of the accused. The Corpus Juris text indicates that after a jury has been impaneled and sworn, the accused’s jeopardy has begun and that, generally, such action may not then be taken. The Georgia case, construing a Georgia statute providing that a nolle prosequi may be entered “at any time before the case has been submitted to the jury,” holds that “within the meaning of this section” a submission does not occur until the jury has been impaneled and sworn. Such statements are in accord with the general rule on jeopardy; they have no relation whatever to the general meaning of a “submission to the jury” for the purpose of a finding on guilt or innocence or the fixing of punishment, or both. The “submission” from a standpoint of jeopardy means: “The danger of conviction and punishment which the defendant in a criminal action incurs when a valid indictment has been found, and a petit jury has been impaneled and sworn to try the case and give a verdict in a court of competent jurisdiction.” {Citing cases.) Black’s Law Dictionary, 4th Ed. The “submission” of a case under § 556.280 means, as we now hold, that time when a case is turned over to the jury for its decision under the instructions of the court. See, by way of analogy, State ex rel. News Corp. v. Smith, Banc, 353 Mo. 845, 184 S.W.2d 598. It is then, and only then, that the issues are submitted and the jury is told that it shall decide either guilt or innocence and punishment, or that it shall merely decide guilt or innocence. The real purpose and intent of our present Second Offender Act, as contrasted with the previous Habitual Criminal Act, is to keep the matter of prior convictions away from the jury by having the judge assess the penalty if, in fact, a-prior conviction has been found. State v. Morton, Mo., 338 S.W.2d 858. All that is necessary is a hearing and a finding before the jury actually receives the instructions and thus receives the case for its final decision. In our practice such hearings have been held at various times prior to the giving of the instructions. State v. Griffin, Mo., 339 S.W.2d 803, certiorari denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849; State v. Donnell, Mo., 351 S.W.2d 775, certiorari denied 374 U.S. 811, 83 S.Ct. 1703, 10 L.Ed.2d 1035.

Counsel argues that he was entitled to know in advance of the voir dire and any testimony whether the State was going to proceed on the information charging a prior offense; he says that this might have affected defendant’s desire to plead guilty, as well as the voir dire examination and the cross-examination of witnesses. There are two complete answers to this contention. (1) The charge was plainly contained in the original information, which had never been amended, nor had the charge been withdrawn; both defendant and his counsel were on notice that it would be enforced. (2) The procedure followed complied strictly with our statute and neither defendant nor his counsel was entitled to anything more. The statute was not enacted for the purpose of giving a defendant any tactical advantage or disadvantage in the examination of the jury panel or in the cross-examination of witnesses. Its terms were complied with here, and that is sufficient.

Defendant’s next point is that the court erred in giving Instruction No. 3, the State’s only instruction on the merits, which submitted the offense of first degree robbery by means of a dangerous and deadly weapon. We shall not need to quote the instruction. The first suggestion is that the State had waived the death penalty prior to the voir dire and that it thereby reduced the charge to robbery in the “second degree.” In -that connection the prosecutor stated that the State would not ask for the death penalty “to avoid qualification of thirty jurors instead of twenty-four.” This did not constitute a reduction of the charge, and the offense would still be and was subject to punishment by imprisonment for any term up to life. Counsel cites one case, State v. Garrett, Mo., 282 S.W.2d 441; there the charge of first degree murder was expressly waived by the prosecutor and thus reduced to second degree murder. That case is in nowise applicable here. In our case there was no waiver, express or implied, of the first degree robbery charge; the State merely waived the extreme penalty for that charge. This it may do. State v. Redding, Mo., 357 S.W.2d 103, 108. Here, as in Redding, the defendant was still being tried for first degree robbery, with “a sentence of from five years to life.” No point has been made either in the motion for new trial or in the brief regarding the number of jurors called on the panel. The defendant could not, in any event, have been prejudiced on the matter of punishment by this instruction, for that question was wholly withdrawn from the jury’s consideration.

Next, counsel says that this instruction was not consistent with the information. The latter stated that defendant committed the robbery with intent to “deprive Bill Wilkerson, agent, servant and employee of So-Lo Market, Incorporated” of the use of the money. The instruction submitted an intent to deprive the “So-Lo Market, Incorporated * * * of the use thereof * * *.” Both the information and the instruction stated that the money stolen was the property of the So-Lo Market; and in both it was stated that Wilkerson was the agent, servant and employee of the So-Lo Market. Actually, both statements of the “intent to deprive” were surplusage, for under § 560.120, the felonious taking of the property of another from the person of “his agent in charge thereof,” against the will of the agent by violence or by putting him in fear of immediate injury, is sufficient to constitute first degree robbery. Thus, the technical variance is of no substance whatever. Moreover, the jury could not help but know that the So-Lo Market was the one which was actually deprived of the money, and that such was defendant’s intent. In McCarthy v. Eidson, Banc, Mo., 262 S.W.2d 52, it was held that an information charging first degree robbery was sufficient where it was alleged that the defendant feloniously robbed one Simmons of $30 belonging to one Petrie, even though it was not alleged that Simmons was the agent of Petrie; this, on the theory, that such a requirement was one merely of “description” and not one of limitation; that an inference of agency was properly drawn, and that defendant was fully informed of the nature of the charge. The court there said (quoting) at loc. cit. 53: “ ‘The rule that nothing in an indictment must be left to intendment or implication refers to such necessary allegations as will inform the defendant of the nature of the charge. * * * ’ ” The omission there was certainly one more meaningful than the presence of the purely technical variance here.

It is also argued that the omission from the instruction of the statutory words “in charge thereof” (immediately following the words “from the person of his wife, servant, clerk or agent,”) as applied to Wilkinson, rendered the instruction erroneous. The reasoning in McCarthy, supra, is sufficient to answer this contention. If Wilkinson was the agent of the So-Lo Market, if the money was its property, and if it was taken from Wilkinson in the store, there is an almost necessary inference that he was “in charge” of it, or at least was one of those in charge of it. The allegation was not such an essential part of either the information or the instruction that its omission would be fatal, — nor would its absence in anywise prejudice the defendant. The evidence was uncontroverted that Wilkinson was the President and General Manager of the chain of stores. The facts specifically hypothesized in the instruction fairly required a finding that Wilkinson was at least one of those in lawful possession of the money, and that was sufficient. State v. Carroll, 214 Mo. 392, 113 S.W. 1051, 21 L.R.A..N.S., 311.

It is next urged that defendant was prevented from having a fair trial in that he was embarrassed by being brought into court and into the presence of the prospective jurors dressed in dirty and ragged clothes; that defendant told the court that he had asked for his own good clothes; that court was then recessed and defendant was sent back with the deputy to get (and did get) his appropriate clothing, and the trial proceeded. It seems that this occurred after it was first noted by the court that defendant was not present when the case was called for trial. Counsel states that he was out of the courtroom at the time, but he also states (brief, p. 2) that he came into the courtroom and “was advised by the defendant that they would not give him his clothes.” Statements in the motion for ■new trial and in the brief are not self-proving. We look to the transcript for the facts. It is shown that the court noted that the defendant was not present, that he inquired of the bailiff, who went to check with the chief deputy sheriff and that the latter brought the defendant in; defendant immediately asked if he might say something to the court and the court said: “Let’s go into chambers. Bring him into the chambers.” Then there ensued a conversation-about defendant’s clothes, and the fact that “they” could not find themthe chief deputy stated that the clothes were in the property room, and that defendant had said nothing about “going to court at 9 o’clock.” The court instructed the deputy to take defendant back and let him get into proper clothes, and he declared a recess. Thereupon the following occurred: “The defendant : Could I see my attorney ? The Court: Call Mr. Moon. The Defendant: (Seeing his attorney:) They won’t give me my clothes. Deputy Spencer :• We just couldn’t find them, Bill. (Whereupon the defendant left the courtroom.)” It is not possible from this record to tell just how much of this occurred in the presence of the jury panel or how defendant was dressed. His counsel was present during at least a part of the foregoing colloquy and certainly long enough to have seen- defendant in court, dressed as he was; if any point was to be made of the occurrence, the question should have been raised promptly, either by motion to discharge the panel or otherwise. It is intimated in the brief that the “sheriff’s office” intentionally tried to prejudice the defendant in the eyes of the jury. There is absolutely nothing in the record to sustain such a charge, and the occurrence, fairly appears to have resulted’merely from a misunderstanding. The court remedied the situation promptly, and it is not, in fact, charged with any error. We fail to see how any ordinary jury would be prejudiced because it had seen a defendant in old clothes, or torn clothes, or even soiled clothes, for this would only indicate to an ordinary mind that he had been working at some assigned duties in the jail. Work is no disgrace, even to a prisoner, we hope. No error is shown, no unfairness of the trial is shown, and no prejudice is shown. And when the question was raised on motion for new trial, it was the province of the trial court to exercise a broad discretion in the matter, this being a part of the general conduct of the trial. State v. Pinkston, Mo., 333 S.W.2d 63; Martin v. Sloan, Mo., 377 S.W.2d 252; State v. Turner, Mo., 320 S.W.2d 579. The point is denied.

One point- is included in the brief without argument “for the reason it was raised by the Appellant in his motion for special order to file notice of appeal under Rule 28.07 of this Court.” The point is that an “amendment” of the information to include the “Habitual Criminal Act” denied defendant due process and equal protection under the United States Constitution. There was no amendment of the information. We have held so many times that the enforcement of our Habitual Criminal or Second Offender Statutes is not such a violation,.that it would be useless to discuss the matter again. See: State v. Morton, Mo., 338 S.W.2d 858; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327; State v. Colbert, Mo., 344 S.W.2d 115, certiorari denied 369 U.S. 822, 82 S.Ct. 835, 7 L.Ed.2d 787; State v. Wolfe, Banc, Mo., 343 S.W.2d 10, certiorari denied 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed.2d 1246, certiorari denied 368 U.S. 907, 82 S.Ct. 188, 7 L.Ed.2d 101; State v. Thompson, Mo., 299 S.W.2d 468; State v. Donnell, Mo., 351 S.W.2d 775, certiorari denied 374 U.S. 811, 83 S.Ct. 1703, 10 L.Ed.2d 1035. And, if it were necessary, we would hold that any such objection should and must have been raised at or prior to the trial. Here it was not even raised in the motion for a new trial.

The last point made is that the verdict was insufficient since it did not refer to the information nor did the jury find the essential elements of the crime. The point is not developed. This, however, is a matter upon which we would be required to rule under Rule 28.02. The verdict was as follows: “We, the Jury, find the defendant, Alan Daniel Wilwording, alias Daniel Allen Wilwerdmg, guilty, as charged in the information, of robbery in the first degree.” Obviously, the verdict did refer to the information. Counsel makes here a passing reference to his Point II, in which he contended that the information and Instruction No. 3 were inconsistent. Possibly, he means here that the verdict was insufficient because it referred to an insufficient information. In our previous discussion we have indicated that the information was sufficient and we now so hold; also, there was no material variance or inconsistency between it and the principal instruction. We shall not discuss all that again.

Since the verdict incorporated the reference to the information, it was not necessary for the jury to make special findings of the essential elements of the crime. State v. Saussele, Mo., 265 S.W.2d 290; State v. Roberts, Mo., 232 S.W.2d 975; State v. Staab, Mo., 223 S.W.2d 496; State v. Sheard, Mo., 276 S.W.2d 196. The verdict was certainly sufficiently definite to constitute a bar to another prosecution. Verdicts like the present one have been universally upheld. Defendant cites the case of State v. Cacioppo, Mo.App., 373 S.W.2d 479, where the prosecution was one for receiving stolen goods. The court held that because the verdict omitted the phrase “as charged in the indictment,” and, on the other hand, made no findings on certain factual essentials of a special verdiet (knowledge and intent to defraud), it was insufficient. There the court quoted from Saussele, supra at loe. cit. 482, as follows: “ ‘Of course, a verdict that does not refer to the indictment in its description of the offense, of which it finds the defendant guilty, must be responsive to the charge made by the indictment and certain as to the offense intended; or, as the cases say, a verdict must contain either in itself or by reference to the indictment all of the essentials i:of the crime. See State v. DeWitt, supra, 186 Mo. [61], loc. cit. 69, 84 S.W. 956.’ ” (Emphasis by the Court of Appeals.) It is thus obvious that the cited case merely confirms what we have just said about the sufficiency of the present verdict. The point is denied.

The defendant has filed, pro se, a “Supplemental Brief in Reply.” We have considered it in its entirety. Much of it consists of additional argument to the effect that he was deprived of a fair trial because the trial court failed to hold its hearing under the Second Offender Act prior to the voir dire, and also a reargument of the meaning of “submission” under the statute. We have discussed this matter fully and nothing is to be gained by repetition. We are entirely satisfied that the statute was not violated. The additional argument that the charge of a prior offense was introduced for the first time in the circuit court by information (and not in the magistrate court) and that defendant was thus misled, really requires no discussion. The first formal charge in a felony case is made in the circuit court, after a finding of probable cause by the magistrate. The allegation of a prior offense goes merely to the matter of punishment and the magistrate has nothing whatever to do with it. Defendant further states that his counsel could not waive his substantial rights by a failure to object, — this in connection with his appearance in allegedly improper clothes, and in connection with the size of the jury panel. On the latter, there is still no point or objection, even now, and the question is not in the case. On the former we have held that no prejudice has been demonstrated and no unfairness created, which would be equally true even if a proper objection or motion had been made.

We find no prejudicial error in any other parts of those matters which we consider under Rule 28.02 without specific assignment. The judgment will be and is affirmed.

All of the Judges concur.

      . The transcript of the evidence indicates that this is the correct spelling of the name.


author: PRITCHARD, Commissioner.

text:
    The CITY OF ST. LOUIS, a Municipal Corporation, Appellant, v. William S. BEDAL et al., Members of the Board of Commissioners of Tower Grove Park, and Howard F. Baer, et al., Members of the Board of Trustees of the Missouri Botanical Garden, Respondents.
    Ho. 51223.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1965.
    As Modified Oct. 11, 1965.

      Thos. J. Neenan, City Counselor, Aubrey B. Hamilton, Associate City Counselor, St. Louis, for appellant.
    Chas. Claflin Allen, St. Louis, for Howard F. Baer, and others, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, of counsel.
    John P. McCammon, St. Louis, for William S. Bedal, and others.
   PRITCHARD, Commissioner.

This case for declaratory judgment was transferred to this court by the St. Louis Court of Appeals upon the ground that title to real estate was involved in the requested declaration. Const.Mo.1945, Art. V, § 3, V.A.M.S. The issue is whether there will be such diversion from park purposes by a proposed construction by plaintiff of a four-lane depressed' throughway through Tower Grove Park in St. Louis as to divest title from the city of St. Louis and vest it in defendant Board of Trustees of the Missouri Botanical Garden. It is claimed by defendants that there will be such diversion from park purposes so as to work a forfeiture of the title to the park property by reason of breach of the following condition in the 1868 deed of Henry Shaw wherein he granted the property, 276.76 acres, to plaintiff:

“To have and to hold the same unto the sard city of St. Louis in absolute property in fee so long as the said city shall conform and comply with the following conditions annexed to said grant, to-wit:
“First, that all of said tract of- land hereby annexed except the aforesaid strip, two hundred feet in width shall be and remain and be used and- managed as a public park for the health, well-being and enjoyment of the citizens of said city and county of St. Louis, forever. That no portion of said park shall ever be used for any other purposes than those appertaining properly to such public park * * *.
“It is hereby expressly provided, and this conveyance is made upon the express condition, that if said conditions upon which said conveyance is made or any of them shall be violated- * * after the death of said Shaw, then the said estate hereby conveyed and all improvements thereon shall go to and be vested in whomsoever said Shaw may appoint for the use of the Missouri Botanical Garden or- directly in said Garden, whenever the same is incorporated or authorized by law to hold directly in its own- name and- for its own use * *

[The strip 200 feet wide is not in issue here, it being an area provided by Shaw for the leasing and construction of villas, the income from which ultimately went for the purposes of the Missouri Botanical Garden.]

We do indeed have appellate jurisdiction of this case. The declaration sought upon the contemplated or threatened action of the plaintiff in placing its throughway through the park could have the effect of making the reversion clause in the above deed operative, or, on the other hand, to make it of no effect under the facts of this case (i. e., as claimed by plaintiff that there would be no diversion from park purposes in the construction of the throughway). Thus the judgment operates upon the title to the reversion and upon the title to the fee now vested in plaintiff. See Cantrell v. City of Caruthersville, Mo., 267 S.W.2d 646, 648 [3-5].

Paul W. Breisler, a resident taxpayer of plaintiff city, who owns property in a -block adjacent to the intersection of Tower Grove and Magnolia Avenues, was permitted to -intervene as a defendant. The Oak Hill Neighborhood Association, a voluntary unincorporated association of real property owners in an area adjacent to the southern boundary of Tower Grove Park, was granted leave to appear as amicus curiae.

The trial court found for defendants, and in Paragraph 4 of its decree declared that “The diversion of approximately five acres across the middle of said park for a depressed highway would violate the condition referred to supra, and would cause a reversion of said park to the Missouri Botanical Garden.” By Paragraph S of the decree the court further declared that “The exercise of discretionary rights, powers and duties by the defendant members of the Board of Commissioners of Tower Grove Park is limited to such rights, powers and duties as do not violate the terms of the Act of 1867 (hereinafter in this opinion mentioned) and the conveyance by Shaw to the Plaintiff City. Authorization by the Commissioners of the construction of a depressed highway across said park would be an act in excess of their powers and would cause a reversion to the Defendant Missouri Botanical Garden.” (Parenthetical reference ours.) Plaintiff City appeals from the final judgment entered.

Further facts are these: In 1867, the park area proposed to be granted by Henry Shaw was located partly in the City of St. Louis and partly in St. Louis County. Shaw, in order to enable the park commissioners of the city to control the park (which was adjacent to his botanical garden), secured the passage in the state legislature of “An Act to Create, Establish and Provide for the Government of Tower Grove Park of the City of St. Louis” [Laws of Missouri, 1867, page 172]. Section 1 of the Act provided that as much and such portions as Henry Shaw may see fit to give, grant and convey to the City of St. Louis, for the purposes of a public park, of the area bounded by Grand Avenue on the east, Arsenal Street on the south, Magnolia Avenue on the north and Kingsh'ighway on the west, “shall be known and designated as the Tower Grove Park of St. Louis.” Section 2 provided that the park should be under the exclusive control añd management of a board of commissioners which was amplified in Section 5: “The said board shall have the full and exclusive power to govern, manage, direct and control the said park; to lay out and regulate the same; to pass ordinances for the regulation and government thereof, not inconsistent with the ordinances and regulations of the corporation of St. Louis; to appoint such engineers, surveyors, clerks, and other officers as may be necessary; to prescribe and define their respective duties and authority, fix the amount of their compensation, and generally, in regard to said park, they shall possess all the power and authority which now Is, or which may hereafter be, by law conferred upon or possessed by the corporation of St. Louis in respect to the public squares and places in said city.”

The charter authority of plaintiff over parks, being stipulated, is as follows:

“Article I, Section 1(14) — Streets, alleys, parks, sewers, etc. — To establish, open, relocate, vacate, alter, widen, extend, grade, improve, repair, construct, reconstruct, maintain, light, sprinkle and clean public highways, .streets, boulevards, parkways, sidewalks, alleys, parks, public grounds and squares, wharves, bridges, viaducts, subways, tunnels, sewers and drains, and regulate the use thereof.”
“Article I, Section 1(33) — General Welfare — To do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the -city or its inhabitants.”

Tower Grove Park extends about 7,600 feet east and west and about 1,500 feet north and south. Since its original establishment there has been in use by the public a park road from Magnolia Avenue at Tower Grove Avenue to the south across the park to Arsenal Street between Bent Avenue and Morganford Road. About 60 per cent of the park lies to the east of the park road, and about 40 per cent lies to its west. According to Plaintiff’s Exhibit 43, there is a circle for traffic about the center of the park road, and there are four accesses from the east and west portions of the park onto the park road.

As far back as the year 1917 the City Plan Commission has recommended a crossing of the park as a part of the plaintiff’s major street plan. The need for a crosstown trafficway has been pointed out, and according to the commission there is a geographic necessity to cross Tower Grove Park (and Fairgrounds Park to the-north several miles). A further consideration of the roadway crossing proposal was made in 1930, being then approved by the City Plan Commission and by the Board of Park Commissioners of Tower Grove Park. In 1955 the residents of St. Louis approved Proposition No. 6 of a bond issue in the amount of $11,615,000, for the purpose of establishing, opening, widening, constructing and reconstructing public streets, highways, parkways and benefits and otherwise improving the same and acquiring rights of way and land therefor. The portion of Proposition No. 6 bond issue allocated for the proposed depressed .throughway in Tower Grove Park was fixed at $325,000, which is said to be interdependent with the Morganford Road improvement from Arsenal Street to Gravois, which was fixed at $650,000. These matters were explained to the voters in the election in a “fact book” wherein it was stated:

“These projects will permit continuous north-south traffic movements between Tower Grove at Magnolia and Morganford at Arsenal. Plans include a depressed highway through Tower Grove Park and the widening of Mor-ganford south of Arsenal to Gravois. This tied in with the program to widen Morganford south of Gravois which is already under way.
“Tower Grove and Morganford, which are about midway between Grand and Kingshighway, carry heavy traffic but the movement is impeded by an offset in the two streets and Tower Grove Park. Several dangerous curves in the Park would be eliminated, along with straightening of connection between Tower Grove and Morganford. This would increase safety.”

The areas in and surrounding the park are in excess of 100% traffic capacity at the present time, according to the latest standards applied by plaintiff’s Traffic Division. Photographs taken show the traffic congestion of the park road. The proposed Midtown throughway runs in a general north-south direction. On its north it connects with the Mark Twain expressway. As it runs southward it will successively intersect the proposed Page-Easton throughway, Forest Park Avenue, Daniel Boone expressway, proposed Interstate 44, and then will proceed on southward. As proposed, this “Midtown” throughway will be four lanes in width with a median strip, sloped embankments with adequate fencing, and it is planned that it be screened from view by appropriate landscaping improvements. Provision is made for vehicular and pedestrian crossing of the depressed roadway. The maximum depth beneath the surface near the center of the park will be approximately 18 feet. The plans are designed to preserve the existing circle driveway in the center of the existing driveway across the park.

Mr, Frank Kriz, President of plaintifif’s Board of Public Service, gave his opinion that the proposed Midtown roadway, when constructed, would remove the existing traffic saturation of the park drive across the park; would improve traffic safety within the park; would tie in with a needed crosstown traffic route; and that it would be designed to preserve aesthetic values and thus be harmonious with the over-all park area. Mr. Ellis Henry, Traffic Commissioner, testified that the proposed roadway would alleviate traffic congestion, and would improve safety conditions. The roadway would enable anticipated traffic from interchanges to be distributed more adequately than would otherwise be the case. There is a need for a cross-town throughway aided by an extension through Tower Grove Park, which would be of benefit to the entire city from a traffic standpoint.

Mr. Robert Jones, Director of Planning for the City Plan Commission, testified that the withholding of approval of the Tower Grove Park traffic crossing would destroy the needed and planned cross-town traffic route because of the existing jog between Morganford Road and the park entrance; that the only way to remove traffic congestion from the park drive was to construct the depressed crossing across the park; that the depressed roadway would enable the city to handle traffic that was anticipated when the interchanges for Interstate 44 and the Daniel Boone expressways were constructed. Mr. Jones gave his opinion that the proposed roadway would advance safety in the park and protect park use.

Mr. Kriz testified further that all of the necessary preliminary work (detailed engineering plans for the design and construction, etc.) of the proposed roadway was being withheld until the legal questions (herein presented) could be determined, and the widening of Morganford Road to Gravois (southward from the park) was being, for the same reason, completely held up.

Pursuant to the legislative authority of the 1867 Act, supra, the Board of Commissioners of Tower Grove Park passed numerous regulations therefor. Among these are a prohibition against entering or leaving the park except by gateway; no omnibus or express wagon, with or without passengers, nor any cart, truck or other vehicle carrying goods or passengers or solely used in carrying goods or passengers shall be allowed, nor any vehicle carrying more than six persons; -the park shall be open daily to the people during the winter months from seven o’clock in the morning to one-half hour after sunset, and from six and seven in the morning until one-half hour after sunset during summer months f the comptroller or superintendent may direct that the park entrances be dosed at any time; no fire engine, hook or ladder, cart, hose, truck or other machine on wheels commonly used for extinguishing fire shall be allowed in the park without the previous consent of the comptroller; and no funeral procession or hearse shall be allowed therein. The proposed throughway, which curves slightly to the west as it crosses the park, will destroy some grass tennis courts. The plaintiff has in the past expended funds on the park roads. The bond election mentioned above also provided $11,000,000 for public parks.

The first matter presented by plaintiff is that the court erred in adopting Paragraph 4 of its decree. The contention is that the construction of theproposed highway across the park would not violate the condition in the Shaw deed nor cause a reversion of the title to the park land to the Missouri Botanical Garden. It is said that the evidence shows that the proposed roadway would enhance the safe use of the park; would be incidental to park use; would tend to preserve the unity of the park by preventing its division by surface traffic; and would be a reasonable exercise of lawfully vested discretion in plaintiff and in the Board of Commissioners of Tower Grove Park under changed traffic and municipal conditions which have occurred since 1867 and 1868.

As to a diversion from park uses by the construction of streets and highways -therein (as distinguished from park roads), a distinction is drawn in the cases as to the manner in which the park grounds were acquired by the public. In the case where a park is-established by statutory authority, or where a municipality purchases land or condemns land therefor, the uses to which it may be put are much broader than where the land is dedicated by individuals for park purposes. In the former case it is said that the municipality acquires the fee simple title to the land, the use of which may be diverted to other public purposes, subject only to the ultimate control by the legislature. 'In the latter cases, the construction is made strictly in accordance with the terms of the grant. 39 Am.Jur. Parks, Squares, and Playgrounds, § 21, p. 816; 25 L.R.A.(N.S.), 980. “It is based upon the theory of a contract between dedicator and public which is binding upon both parties.” Warren v. Mayor of Lyons City, 22 Iowa 351; Carson v. State, 240 Iowa 1178, 38 N.W.2d 168. See also Kirkwood v. City of St. Louis, Mo., 351 S.W.2d 781, 784 [1-3], and cases and authority there cited; School District of Kansas City v. Kansas City, Mo., 382 S.W.2d 688, 693 [5].

In the early and often cited case of Price v. Thompson, 48 Mo. 361, it was' held, in an injunction suit by adjoining property owners to a park which was platted in the town of Brookfield by the original owner of the land, that the Board of Trustees of the town could not extend its Main Street through a four-acre park. The court said, loe. cit. 365, “Nothing, I think, can be clearer than that if a grant is made for a specific, limited and definite purpose, the subject of the grant cannot be used for another and a different purpose. The town took the premises as a trustee with the obligations attached, as well as the privileges conferred, and it was not competent for it to divert them to a use or purpose foreign to the expressed intention of the grantor.” See also the case of Village of Riverside v. MacLain, 210 Ill. 308, 71 N.E. 408, 66 L.R.A. 288, 102 Am.St.Rep. 164, where it was held that a park could not be cut up by an extension of a street through its middle, because such use was inconsistent with and destructive of its use as a park. See annotations, 18 A.L.R. 1248; 63 A.L.R. 486; 133 A.L.R. 34; 144 A.L.R. 492. Since the last A.L.R. annotation, cases which we have found supplementing those on the subject of the authority of municipalities to establish streets and highways through privately dedicated parks are: Baldwin Manor v. City of Birmingham, 341 Mich. 423, 67 N.W.2d 812 (use for highway purposes through dedicated park, with reverter clause, constituted a diversion from grantor’s purpose); City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640 [affirming result in Etheridge v. City of Dallas, Tex.Civ.App., 246 S.W.2d 692] (where it was held that the use of part of the park property as a public road under the facts shown was inconsistent with the purpose to which the city was required to devote the property and was a breach of the condition of the easement); see also 26 C.J.S. Dedication § '65, p. 557.; 11 McQuillin, Municipal Corporations, 3rd Ed., § 33.74, p. 831; and Dillon, Municipal Corporations, 5th Ed., § 1075 et seq.

Plaintiff cites City of Louisville v. Milton, Ky.C.A., 247 S.W.2d 975. There was in that case a proceeding in eminent domain to condemn the park land for a thoroughfare. The title to the property was acquired by the Board of Park Commissioners to be held for public park purposes, and in only one of the deeds was that purpose expressly provided. There appears to be no issue presented, as here, of a dedication by an individual to park purposes, and the court in this Kentucky case did not discuss the same. We deem neither the City of Louisville case nor the Kirkwood case to be helpful -(except as to statements of the general rules) in a disposition of the case at bar where we have an express dedication by Henry Shaw to park uses with a reverter provision in the event of cessation of, or diversion from, such use. Nor do the cases of State ex rel. Roland v. Dreyer, 229 Mo. 201, 129 S.W. 904, and Odell v. Pile, Mo., 260 S.W.2d 521, aid plaintiff. In the Roland case it was held that construction of a railroad on land dedicated for levee purposes did not interfere with the use intended, but facilitated the handling of freight unloaded from boats. In the Odell case it was held that a grant to the city by a county of a strip to widen streets around the courthouse would be incidental to and in furtherance of use of the entire square, and would not be a diversion or misuse of the strip from such purposes.

The evidence shows here that there would be an 18 foot depression through the park for the new throughway, taking 5 acres therefor of the park area including grass tennis courts thereon; destruction of a free access by the public from and to the east and west portions thereof through and over presently existing park roads and pedestrian ways; destruction of the authority of the Board of Commissioners of Tower Grove Park over vehicular traffic in the park including the entrances thereto; and the placing therein of a four-lane limited access road with constant traffic of all kinds. From all of the evidence we conclude that the construction of the Midtown expressway through this park would be a diversion from Henry Shaw’s intended and stipulated purpose that the land be used only for a park: “That no portion of said park shall ever be used for any other purposes than those appertaining properly to such public park * * Since there would be such diversion from park uses, which is in accordance with the general rule, supra, 18 A.L.R. 1248; 63 A.L.R. 486; 144 A.L.R. 492, and other cases cited, we hold that there would be a breach of the condition in Shaw’s deed and a reversion would occur to defendant Missouri Botanical Garden. Although it may be true, as contended, that the proposed roadway would enhance the safe use of the park and preserve its unity by preventing its division by surface traffic, it is still a diversion from park uses. The park was not created for surface traffic. It was created for use by the public as a park. A park has been defined as a “place for the resort of the public for recreation, air, and light.” Price v. Inhabitants of City of Plainfield, 40 N.J.L. 608, 612. To those uses by the public, the Board of Park Commissioners here could, in the exercise of its powers under the 1867 Act, supra, further limit the use by the traveling public of the park road now located' near the center of the park. The evidence shows here that the purpose of the proposed Midtown expressway is to alleviate traffic conditions in the area and to benefit the entire city from a traffic standpoint. It is conceded, and certainly the evidence shows, that plaintiff is confronted with an ever-increasing traffic problem. However, the alleviation of traffic problems by the construction of throughways is not a park purpose. Plaintiff’s Point I is overruled.

Plaintiff, by Point II, says that the trial court erred in adopting Paragraph 5 of its decree by which it is stated that the Board of Park Commissioners would exceed its powers and cause a reversion of the park to Missouri Botanical Garden if it authorized the construction of the proposed roadway.

The argument is that the 1867 Act, supra, conferred upon the Park Commissioners all of the authority which the City of St. Louis then possessed with respect to public squares and places in the city or which thereafter the corporation might have conferred upon it by law; that prior to the dedication the statute imparted to Henry Shaw the terms upon which his donation would be accepted; and that his subsequent conveyance in legal effect was a consent to all of the provisions in the Act. Plaintiff argues further that by Charter provision [Article I, Section 1(14), supra] parks may be altered, which is squarely within the scope of the powers conferred upon the Commissioners by the 1867 Act.

The 1867 Act, however, is that the park shall be in such area as Henry Shaw may see fit to give to the city for the purposes of a public park. Significant is the fact that at the time of the enactment, the proposed park area was both within and without the city of St. Louis, from which it may be deduced that the Board of Park Commissioners would, have had no authority to control and administer the park portion located without the city, absent a legislative enactment. The 186? statute, therefore, was an enabling act. Shaw’s 1868 deed so recites. The only reasonable construction of the statutory powers conferred is that they related only to control and administration of the park and not to any power to divert that use to some other public use. In this case the Board of Commissioners of Tower Grove Park is not seeking authorization to divert the 5 acres in question to street or throughway purposes. The Board is resisting the plaintiff’s threatened diversion. Plaintiff’s Point II is overruled.

By Point III, plaintiff contends that by reason of the 1867 Act, supra, there was a statutory establishment of the park. It says that the Act expressly provided that the operation of the park was subject to powers that might later be conferred- upon the city, including the Charter provision, Article I, Section 1(14), supra, that the city may “establish, open, relocate, vacate, alter, widen, extend, grade, improve, repair, construct, reconstruct, maintain, light, sprinkle and clean public highways, streets, boulevards, parkways, sidewalks, alleys, parks, public grounds and squares,” etc. We have stated above our belief that the purpose of the 1867 Act was to give authority to the Board of Commissioners of Tower Grove Park to administer it; not to divert its uses and purposes. Plaintiff relies upon the above-cited case of Kirkwood v. City of St. Louis for its charter authority to divert park uses. It overlooks the controlling fact in the Kirkwood case that Forest Park, through which it was held the city could put a freeway, was acquired in fee by condemnation pursuant to legislative authority, and the right to control it was further authorized by express grant of authority to adopt a charter (loc. cit. 351 S.W.2d 784 [4-6]), of which Article I, Section 1(14) was legislative sanction to divert a portion of the park to some other public purpose.. Plaintiff overlooks the distinguishing feature of this case: a private dedication for a- specified purpose, with a reverter clause if that purpose be diverted. In the Kirkwood case, loc. cit. 351 S.W.2d 784 [1-3], this distinguishing feature is set forth: “It. is generally held that if a dedication of property for public use is by a private party for a specific or defined purpose, neither the legislature nor a municipality has any power to authorize the use of the property for any purpose other than the one designated. 26 C.J.S. Dedication § 65;. Cummings v. City of St. Louis, 90 Mo. 259, 2 S.W. 130; Price v. Thompson, 48 Mo. 361; Rayor v. City of Cheyenne, 63 Wyo. 72, 178 P.2d 115, 117; Hyland v. City of Eugene, 179 Or. 567, 173 P.2d 464.” (Italics added.) The foregoing quotation disposes of plaintiff’s contention. Point III is overruled;

Point IV raises the issue that changed conditions of the city and its traffic situation in the area justify an alteration of the use originally contemplated by Shaw’s deed. The evidence shows no change in the use of the 276.76 acres for the ninety-six years since the grant. There appear to be no' encroachments upon the park and its surrounding residential area; certainly there has been no abandonment of park purposes. The only change occurring is the rapid increase of traffic which is now permitted to cross the park road. As stated, that is a municipal problem, not a park problem. The fact that traffic in this area has increased over the years would not destroy the purpose for which this park was dedicated. See analogous cases involving restrictive covenants in the use of land cited in Barnes v. Anchor Temple Association, Mo.App., 369 S.W.2d 893, 900 [7], where changed traffic conditions were urged upon one ground as a reason for not enforcing a restriction upon the use to which the property could be put. Point IV is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Appellant, v. Reba KEITER, Respondent.
    No. 50890.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., for appellant
    Davis & Hannegan, Ervin D. Davis, St. Charles, for respondent.
   HOUSER, Commissioner.

This is a civil action brought by State of Missouri by its Supervisor of Liquor Control under the provisions of § 311.-840, V.A.M.S., to declare contraband certain intoxicating liquors seized by the agents of the state and to order the same sold. Submitted to the circuit court on the pleadings the finding was for defendant. It was adjudged that the state take nothing by its petition and that the property seized be released to defendant. The state appealed. We have jurisdiction because State of Missouri is a party to the action. Art. V, § 3, Mo.Const.1945, V.A.M.S. We affirmed the judgment on the first argument of the appeal but later sustained the state’s motion for a rehearing. The cause has been briefed and argued a second time.

All allegations of fact contained in the petition as amended were admitted by defendant. The following is a summary of the facts thus conceded: Defendant operates a private club in St. Charles County. No license has been issued under the liquor control law to defendant or any other person for the sale of intoxicating liquor at the club premises. On August TO, 1962 three agents of the department of liquor control and a. state highway trooper entered the club premises and there purchased from defendant 6 highballs made with intoxicating liquor. On the same day two of the agents and the county sheriff arrested defendant at the club premises for the sale of intoxicating liquor without a license. At the time of the arrest two of the agents seized 4 cases of bourbon whiskey, 1 case of wine and 92 bottles of assorted liquors, wines, whiskeys, gin, etc. The intoxicating liquor seized' “was possessed and stored for sale” at the club premises.

The state relies upon and contends that the liquor seized should have been declared contraband and forfeited under the provisions of § 311.&10(2), V.A.M.S. On the first argument of this appeal the state relied upon § 311.050 as the basis for its theory that the defendant’s storage and keeping of the intoxicating liquor was unlawful and that the liquor is contraband. On rehearing the state relies upon § 311.-740(1) as the basis for its contention that defendant’s storage and keeping of intoxicating liquors was unlawful.

Section 311.810(2) declares “[a]ll intoxicating liquor unlawfully * * * stored, [or] kept, * * * contraband, * * * ” and provides that “ * * * no- right of property shall be or exist in any person * * * owning, furnishing or possessing any such * * * liquor * * * ; but all such intoxicating liquors * * * shall be sold upon an order of the court and in the manner provided in this chapter * *

Section 311.740(1) provides, in part: “Any room, * * * building,. * * * structure or place of any kind where- intoxicating liquor is * * * kept for sale or bartered, in violation of this law and all Intoxicating liquors and all property kept and used in maintaining such a place * * is hereby declared to be a public and common nuisance, and any person who maintains or assists in maintaining such public and common nuisance shall be guilty of a misdemeanor * *

Under the admitted facts Intoxicating liquor was possessed and stored- for sale at the defendant’s place. This is the same as “kept for sale” as that term is used in § 311.740(1). Under the admitted facts defendant, an unlicensed person, sold 6 highballs of intoxicating liquor at the place of business operated and managed by her in St. Charles County known as the Lake Village Yacht Club. The operation, management and maintenance of this place, the keeping of intoxicating liquor for sale, and the actual sale there of intoxicating liquor by the unlicensed defendant, all in violation of § 311.740(1), constituted the premises and the liquor a public nuisance, made of defendant a misdemeanant and amounted to-an unlawful storing or keeping of intoxicating liquor for sale- in violation of law within the meaning of the contraband statute, § 311.810(2). Under, that section the liquor-seized is contraband' and must be ordered sold as in such cases made and provided.

Appellant claims that the evidence is insufficient to support this result. Specifically, appellant objects that the admissions of fact do not indicate that defendant maintained a nuisance on these premises. She says that maintaining a nuisance denotes continuous or recurrent acts approaching permanence, and urges that the evidence does not prove that intoxicating liquor was sold more than once.

Repeated sales were not necessary, to-justify a finding of unlawful storage and keeping of intoxicating liquor on the basis that a public and common nuisance was being maintained. The surrounding circumstances warrant the inference that the sale of 6 highballs on this single occasion was one of the ordinary and usual incidents of the business conducted on the premises in question. The quantity and variety of liquors, wines, gins, liqueurs, rums, brandies, bitters and mixes on hand at Lake- Village Yacht Club, which were admittedly possessed and stored for sale, amply justify the inference that this was not the first sale and was not intended to be the last sale of liquor on the premises; that the sale of intoxicants and mixed drinks as ordered by customers was the usual and customary course of conduct there. In Lewinsohn v. United States, 7 Cir., 278 F. 421, petition denied by the Supreme Court in 258 U.S. 630, 42 S.Ct. 463, 66 L.Ed. 800, under an act of Congress almost identical-with § 311.740 (1), the court said, 278 F., l. c. 425 [3]: “Counsel stresses the necessity of proving repeated sales in order to justify a finding of a common nuisance, * * *. But such a test is neither an accurate nor an exclusive one. The court might well conclude from evidence of a single sale that the room or the building was a common nuisance and that it was a place where liquor was ‘being manufactured, sold, kept or bartered’ in violation of the statute. No doubt repeated sales of the same beverage on other occasions and under other circumstances might justify greater certainty in the trier’s mind as to the use to which the building was being put. There could be, however, an almost irrefutable conclusion drawn from a single sale, provided the facts surrounding such sale warranted the inference that it was one of the ordinary and usual incidents of the business there conducted. * * * ”

Our first impression of this case was that the petition did not plead facts sufficient to sustain a declaration of contraband for illegal possession and storing of intoxicating liquors for sale because the facts did not show that the intoxicating liquors were exposed for sale in- violation of § 311.050, as contended by the state. On reconsideration we are now holding in effect that the petition does state sufficient facts to sustain a declaration of contraband for illegal possession and storing of intoxicating liquors for sale because kept for sale in a place which constituted a common and public nuisance in violation of § 311.740(1), upon which statute the state now relies.

Section 311.740(1) was not brought to the attention of the trial court or this court in the first briefing and argument-of this appeal. It was first referred' to in the state’s motion for a rehearing. Respondent claims that the state’s contention that the liquor is contraband because illegally possessed and stored for sale in violation of § 311.740(1) should not be entertained because this is a new theory of recovery not presented to the trial court by pleading, evidence or motion for new trial But was first advanced in the motion for rehearing. Except as specifically authorized by exception to the general rule no claim of error may be considered by an appellate court in civil appeals unless it was presented to or expressly decided by the trial court. Section 512.160, V.A.M.S.; Civil Rule 79.03, V.A.M.R.; Mayor v. Mayor, Mo.Sup., 349 S.W.2d 60, 62 [2], In accordance with the general rule it has been held that parties who rely upon a certain statute at the trial, having tried their case on that theory, will not be permitted to rely upon a different statute on appeal. State ex inf. Mooney ex rel. Stewart v. Consolidated School Dist. No. 3, Mo.App., 281 S.W.2d 511, 515 [9]. One exception allowed in exceptional circumstances is that provided by Civil Rule 79.04, namely, that an appellate court in its discretion may consider plain errors affecting substantial rights on appeal though not raised in the trial court or preserved for review, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom. That exception is applicable here. It is obvious that a miscarriage of justice will result from a failure to consider the newly assigned error. In the circumstances of this case we have determined that it is not necessary to remand the case for consideration of this new point, but have determined the effect of the statute here and now on this appeal. These circumstances are that the newly injected issue involves undisputed facts (the facts were agreed to in this case) and the parties have had a full opportunity on rehearing to consider and discuss and have considered and discussed the case in the light of the newly discovered statute, both in their briefs and in oral argument on rehearing. In this situation no good purpose could be served by remanding the case for consideration by the circuit court. Frieze v. West American Ins. Co., 8 Cir., 190 F.2d 381.

Accordingly, the judgment is reversed and the cause remanded with directions to enter the appropriate orders under § 311.-840, V.A.M.S.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Ellis EATON, Jr., Appellant.
    No. 51369.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., for respondent.
    Ellis Eaton, Jr., pro se.
   PRITCHARD, Commissioner.

Appellant filed his motion to vacate- judgment and sentence (five years total imprisonment for burglary, second degree, and stealing) in the trial court pursuant to the provisions of Supreme Court Rule 27.26, V.A.M.R. Thereafter, on December 29-, 1964, the court took up the motion, and having examined it and the files and records in the case, overruled it.

The sole ground for the relief requested in the motion is that the “information is fatally defective and is insufficient to sustain the imposition of Judgment and Sentence thereon, in that the allegations as therein contained fail to aver the ownership of the alleged burglarized property and the stolen goods, and merely charges the burglarized property as the Stratton Produce Company, a store building used to keep goods, wares, merchandise and other valuable things, and that the stolen property had been taken from the Stratton Produce Company.”

Appellant has in his pro se brief attempted to add other grounds for relief than the one directed to the validity of the information above. We do not consider such other grounds in our review of this appeal for the reason that “ * * * no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.” Civil Rule 83.13, V.A. M.R., applicable to the appeal of criminal cases, State v. King, Mo., 380 S.W.2d 370, 373, and cases there cited.

The challenged information which was filed in the Circuit Court after the preliminary hearing in Magistrate Court is as follows:

“Robert B. Paden, Prosecuting Attorney within and for DeKalb County, in the State of Missouri, upon information and belief, and upon- his official oath, informs the Circuit Court of DeKalb County, Missouri- that on or about the 3rd day of August, 1964, at said County, the defendant, Ellis Eaton, Jr., did, with specific criminal intent, knowingly, maliciously, unlawfully, willfully, on purpose and deliberately and- feloniously did
COUNT 1.
“Break and enter into the Stratton Produce Company building, a store building used to keep goods, wares, merchandise and other valuable things, with intent to steal goods, wares, or merchandise, all contrary to the form of the statutes in such cases made and provided against the peace and dignity of the State of Missouri.
COUNT 2.
“The said defendant, Ellis Eaton, Jr., did steal,, take, carry away, conceal, transfer, and retain possession of on August 3, 1964 goods, and other- merchandise, to-wit: 40 cartons cigarettes and lawful money of the United States and checks and other such negotiable instruments having the value of more than $50.00, from the Stratton Produce Company, Amity, Missouri, all contrary to the form of the Statutes in such cases made and provided, and against tlie peace and dignity of the State of Missouri.
/s/ Robert B. Paden
Prosecuting Attorney of De Kalb County.”

Appellant cites State v. Jones, 168 Mo. 398, 68 S.W. 566; State v. Clark, 223 Mo. 48, 122 S.W. 665; State v. Henschel, 250 Mo. 263, 157 S.W. 311; State v. Evans (and Barri), Mo., 217 S.W. 30, and State v. Kelley, 206 Mo. 685, 105 S.W. 606, 12 Ann.Cas. 681. These older cases do hold that an indictment or information is insufficient if there is a failure to allege the ownership, or to specify the status of the owner (e. g., individual, corporation or partnership) therein, as being matters which the defendant is entitled to know. The rule in those cases, however, has been specifically overruled by this court in later cases on the point here raised. See State v. Zammar, Mo., 305 S.W.2d 441, 442 [1, 2], citing other cases on the subject the last of which is State v. Stubblefield, Mo., 248 S.W.2d 665, in which the court denied the same contention there and here made. In the Stubblefield and Zammar cases the court quoted approvingly from State v. Hedgpeth, 311 Mo. 452, 457, 278 S.W. 740, 741, “‘Proof of the appellant’s guilt of the crimes charged; or either of them, did not depend upon establishing the fact of the oil company’s incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and, to- establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged' in the information, it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership, or an individual is not material to the appellant’s defense or in the establishment of. his guilt.’ ” See also State v. Long, Mo., 336 S.W.2d 378, 379 [1, 2]; State v. Mallory, Mo., 336 S.W.2d 383, 385 [4-6]; State v. Stuver, Mo., 360 S.W.2d 89.

In the instant case the allegations of Count I of the information are within the provisions of Section 560.045, RSMo 1959, V.A.M.S., and fairly advise the accused of the nature of the crime therein specified: burglary in the second degree. The above cases hold that the legal status of the owner of the building need not be alleged. Count II of the information, alleging stealing, is within Section 560.156 RSMo 1959, V.A.M.S.; the description of the property is adequately set forth, as is the allegation that such stealing “from” the Stratton Produce Company was the property of another.

The trial court properly determined the matters raised in appellant’s motion from the record, no issue of fact being presented which would require a hearing.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Norman MALLOYD, Appellant.
    No. 51289.
    Supreme Court of Missouri, Division No. 2.
    Oct. 11, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Henry L. Twigg, Sp. Asst. Atty. Gen,, St. Louis, for respondent.
    James A. Riley, St. Louis, for appellant.
   FINCH, Judge.

Defendant was convicted of burglary, second degree, and sentenced to imprisonment for five years, with allowance for jail time.

Appellant was represented throughout the trial, allocution and sentencing by counsel appointed by the trial court. No motion for new trial was filed, but an appeal was taken. Counsel also was appointed to represent defendant on appeal, but he has advised the clerk of this court that a brief will not be filed.

Under these circumstances, we have reviewed the record proper and those matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R., and find no error therein. The information conforms to the statute, the verdict was proper and fixed punishment within the statutory limits, defendant was accorded allocution and the judgment was responsive to the verdict. The fact that a motion for new trial was not filed precludes us from consideration of matters required to be preserved in a motion for new trial. State v. Cook, Mo., 327 S.W.2d 854.

The judgment is affirmed.

All of the Judges concur.


author: HOLMAN, Judge.

text:
    Carl E. DAY, Administrator of the Estate of Julia Day, Deceased, (Plaintiff) Appellant, v. Lyle H. BRANDON and Swift & Company, a Corporation, (Defendants) Respondents.
    No. 51337.
    Supreme Court of Missouri, Division No. 1.
    Oct. 11, 1965.

      Granville L. Gamblin, Clayton, Thomas R. Dowd, St. Louis, for appellant.
    Hale Houts, Thad C. McCanse, Houts, James, McCanse & Larison, Kansas City, for respondents.
   HOLMAN, Judge.

Plaintiff, as administrator of the estate of Julia Day, deceased, filed this suit in an effort to recover damages in the sum of $25,000 for the alleged wrongful death of his decedent. The trial court sustained defendant’s motion to dismiss and plaintiff has duly appealed from that judgment.

The motion to dismiss was based on the ground that plaintiff’s petition failed “to state a claim upon which relief can be granted since it appears on the face of the petition that at the time of the death of Julia Day, she left a husband surviving her and under the Statutes of Missouri, 537.080 and 537.020, RSMo 1959 [V.A.M.S.], this action must be brought by the surviving husband or by his administrator.”

Plaintiff’s right to maintain this action is obviously governed by § 537.080 (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.). That section provides that damages for wrongful death -may be sued for and recovered:

“(1) By the husband or wife of the deceased-; or
“(2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, * * * or
“(3) If such deceased be a minor and unmarried * * * [this provision is not applicable here], or
“(4) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.”

The petition in this case was filed July 12, 1962. It alleged the following: “That on April 10, 1962, Julia Day died in Jackson County, Missouri, as a result of injuries she received in a collision of the station wagon automobile in which she was riding as a passenger and a trailer-truck * * * ; that on June 28, 1962, the deceased’s son, Carl E. Day, * * * was duly appointed Administrator of the Estate of Julia Day * * *. [Omitted here are allegations to the effect that a truck driven by defendant Brandon, as agent for defendant Swift, collided with a station wagon in which deceased was riding as a passenger and that such collision was caused by the negligence of defendants.] That deceased Julia Day, wife of William V. Day, was killed instantly in said collision and that her husband, William V. Day, died of injuries received therein at a hospital in Jackson County, Missouri, on April 11, 1962; that William V. and Julia Day, husband and wife, were survived by six children, * * * all of whom attained the age of 21 years prior to the death of their .said mother on April 10, 1962, and the death of their father on April H, 1962.” It was also alleged that three of the adult children were partially disabled and had received and would have received in the future pecuniary benefits from deceased Julia Day.

The judgment of dismissal was entered on January 26, 1965.

The trial court ruled correctly in dismissing plaintiff’s petition. One seeking to recover under the provisions of § 537.080 must plead facts sufficient to bring himself within its terms and requirements. Under the facts alleged in plaintiff’s petition, the right to recover damages for the alleged wrongful death of Julia Day was clearly vested in her surviving husband by the specific provisions of the foregoing statute. The fact that William V. Day died the next day without having filed a suit or settled his claim would not create any right of recovery in the administrator of his wife’s estate.

We are supported in our view by the case of Betz v. Kansas City Southern Ry. Co., 314 Mo. 390, 284 S.W. 455. The pertinent facts in that case are identical with those in the case before us. In ruling Betz this court stated: “It stands admitted in the instant case that Jennie Baker was survived by her husband. Under the wrongful death statute in question, he fell within the first class of beneficiaries who are given the right to sue and to maintain an action thereunder. A right of action sprang up, or vested, in him, under and by virtue of the statute, immediately upon the death of his wife. The right of action thus given by statute to the husband for his wife’s death is dependent solely upon his surviving his wife, and not upon the commencement, or time of commencement, of a suit by him (unless, of course, there be a minor child or children, when the husband must sue within six months after the wife’s death). His failure to sue, whether by reason of death or otherwise, does not revest the right of action in the wife’s personal representative., who is the plaintiff in this action.” 284 S.W. 462, 463. While the Betz case involved the old railroad penalty statute '(§ 4217, RSMo 1919), the provisions thereof relating to the persons entitled to recover are the same as those in § 537.080. The ruling in the recent case of Forehand v. Hall, Mo.Sup., 355 S.W.2d 940 [6], is in accord with the principles stated in Betz.

Plaintiff states in his brief that he has also been appointed administrator of the estate of his father and that he has filed a suit against defendants to recover damages for his wrongful death. As an alternative contention plaintiff says that even though we hold that the petition was properly dismissed, the judgment should be reversed and cause remanded for the reason stated in Point II of his brief, which reads as follows: “Suit having been filed within twelve months, for damages resulting from wrongful death of Julia Day, mother of those identical persons entitled to recover for wrongful death of father William V. Day, and there being no minor children; cause should be remanded to permit plaintiff to amend petition for wrongful death of William V. Day to also seek recovery for death of Julia Day, such being a cause of action for which his administrator could have recovered for the same persons beneficially interested in recovering for his death had William V. Day’s administrator brought suit for her death in his petition for the death of William V. Day.”

Plaintiff apparently considers it necessary to obtain a reversal of the judgment in the instant case in order for him to amend the petition in the other case and seek recovery therein for the death of Julia Day. In view of our decision on this point we need not consider the question as to whether a reversal is required in order for plaintiff to pursue the course he suggests. We cannot grant the relief plaintiff seeks. We have ruled that the trial court did not err in entering its judgment of dismissal, and Civil Rule 83.13(b), V.A.M. R., provides that “[n]o appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.” In the situation before us we are precluded from reversing the judgment by the terms of the quoted rule. See Owings v. White, Mo.Sup., 391 S.W.2d 195. The case of Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, cited by plaintiff, involves an entirely different factual situation and has no application to the question before us.

In view of the foregoing we need not consider the contention briefed by defendants to the effect that the one year statute of limitation (§ -537.100) would, in any event, bar a recovery by William’s administrator for Julia's death even though an amendment seeking that relief should be made at this time.

For the reasons stated the judgment is affirmed.

All concur.