author: STOCKARD, Commissioner.

text:
    FEDERHOFER, INC., Hertz Corporation, Leased Vehicles, a corporation, and Ryder Truck Rental, Inc., Respondents, v. M. E. MORRIS, Director of Revenue of the State of Missouri, and Albert S. Arenson, Collector of Revenue of the State of Missouri, Appellants.
    No. 49169.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Robert D. Kingsland, Asst. Attys. Gen., Jefferson City, for appellants.
    Warren D. Welliver, Columbia, Richard K. Nalley, St. Louis, for respondents, Wel-liver, Porter & Cleaveland, Columbia, of counsel.
   STOCKARD, Commissioner.

In this suit for a declaratory judgment the trial court held certain transactions for the lease or rental of motor vehicles and equipment not subject to the Missouri State Sales Tax Law, Sections 144.010 to 144.510 inclusive (all statutory references are to RSMo 1959, V.A.M.S.), and not subject to the Compensating Use Tax Law, Sections 144.600 to 144.745 inclusive. The Director of the Department of Revenue and the Collector of Revenue for the State of Missouri have appealed.

The facts are brief, undisputed and are set forth in a stipulation agreed to by the parties and stated to “constitute all matters required by this court for the determination of the issues.” It is there stated that respondents are corporations authorized to do business in the State of Missouri and that they are presently engaged in the business of renting and leasing automobiles and trucks in this state; that “The Director of Revenue has determined that the vehicles leased or rented under the contracts [copies of which are identified in the stipulation and introduced in evidence] are taxable tangible personal property and that the total consideration paid by lessees to [respondents] for the rental of such vehicles is subject to sales and use taxes;” and that “the Director of Revenue has required that the lessors of vehicles leased pursuant to those contracts * * * collect sales and use taxes, in accordance with Chapter 144 * * * [RSMo 1959, V.A.M.S.] from the lessees of such vehicles, and remit the .amount collected to the [appellants].”

The contracts used by respondents in renting or leasing vehicles all contain different wording and we cannot set out the lengthy terms of each. Exhibit B, the form of contract used by Federhofer, Inc., is typical, and we do not understand that appellants place any significance on the wording of any particular contract. In the Fed-erhofer form of contract the lessor “agrees to rent and the lessee agrees to hire” certain described motor vehicles “with the understanding and agreement that the title and ownership of the said vehicles shall remain in the lessor, and the accessories and equipment of each of said vehicles and all additions to each vehicle shall become and remain a part of the respective vehicle to which attached.” The term of the lease is from “the delivery date” and continues in effect, “unless cancelled as provided * * * for a period of one year and from year to year thereafter;” provided that either party may cancel the agreement as to any one or more vehicles at any time after one year. However, each vehicle leased has a “minimum replacement date” at which time, if the agreement has not previously been canceled as to it, the vehicle is to be replaced with “a new vehicle of similar size and type” at the expense of the lessor and a new “lease rate * * * shall be arrived at by mutual agreement.” In the event the lessee cancels the lease, “the lessee shall purchase for cash each vehicle so cancelled.” The “purchase price” is then defined to be “the aggregate sum of the original value of the vehicle * * * less a sum for depreciation, computed at [an agreed] depreciation rate per month,” with the further provision that in no event shall the purchase price be less than a stated percentage of the original value. An option to the requirement to purchase is provided, and the lessee may surrender the vehicle to the lessor for sale by it, and then pay the difference, if any, between the net sale price of the vehicle and lessee’s purchase price as computed pursuant to the lease agreement. However, in the event of a war or national emergency, the lessor has the right to elect to have the vehicle returned to it upon cancellation of the agreement by either party even though the lessee should want to purchase it. In the event of bankruptcy or assignment for the benefit of creditors on the part of lessee, the lessor may repossess the vehicle. The lessor may cancel the contract and agreement “without cause at any time after one year” by giving to the lessee thirty days written notice of the election to do so, and in that-event the lessee is granted the privilege and option to purchase the vehicle on the terms which would apply if the lessee elected to cancel, but if the lessee elects not to purchase, the vehicle shall be delivered to the lessor. It also agrees to “maintain the said vehicles in good repair in all respects, and to make repairs within a reasonable time upon return of the vehicles to the garage [designated by lessor] ; to furnish all tires, gasoline, oils and lubricants necessary for the operation of said vehicle; to furnish storage space together with complete garage service for the said vehicles, including the washing and cleaning of said vehicles.” When necessary the lessor may “temporarily substitute other vehicles.” Lessee is liable to lessor for certain expenses resulting from improper use, such as overloading and operating the vehicle on a flat tire. The lessor agrees to keep the vehicles insured against loss by fire or theft, and “to make application for and attempt to keep in force” insurance protecting lessee against public liability and property damage in amounts agreed to. Lessee must notify lessor immediately of all accidents and the lessor has the right to determine disposition of the vehicle if wrecked. Other provisions of the contract pertain to illegal use, and other matters. 'Payments by lessee for the use of the vehicle are to be made at regular intervals 'on a previously agreed to plan and rate, and the rate is based on mileage and time of use.

As we understand the contention of appellants, théy do not take the position that the agreements do not constitute valid leases of the motor vehicles. Their position is that the legislative definition of the transactions which are subject to the sales and use taxes includes the transactions provided for in these agreements even though they provide for a valid lease or rental of the vehicle, and that the entire amount paid periodically by lessees to the lessors as rental for the use of the vehicles is subject to either the sales or use tax. On the other hand, it is respondents’ contention that the rental or lease of the vehicles pursuant to the agreements do not constitute taxable events under either the sales or compensating use tax acts. They apparently concede, however, that the transactions by which they purchase the vehicles are subject to the sales tax or to the Motor Vehicle Use Tax, depending upon the circumstances, and that when the vehicles are sold to the lessee, if they ever are, or to some third person, those transactions are subject to either the sales tax or the Motor Vehicle Use Tax if otherwise applicable. We shall examine first the contention of appellants that the transactions made pursuant to the contracts are subject to the sales tax.

Section 144.010, subd.1 is devoted to the definition of “words, terms and phrases,” and in subsection (8) thereof the term “Sale at retail” is defined to be “any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration; * * It is then provided that “Where necessary to conform to the context of sections 144.010 to 144.510 and the tax imposed thereby, it [the term “sale at retail”] shall be construed to embrace” six described transactions pertaining to specifically stated items of property or services, most of which would not be considered to constitute a transfer of the ownership or title to tangible personal property, and “some or all of [which are] in the nature of rental or lease transactions.” International Business Machines Corporation v. The State Tax Commission of Missouri, Mo., 362 S.W.2d 635, 639. In fact, the definition of one of the transactions expressly includes the “rental or leasing” of telephone equipment. Specifically, these six transactions pertain to “Sales of admission tickets * * * to or in places of amusement, entertainment and recreation, games and athletic events;” “Sales of electricity, electrical current, water and gas * * “Sales of service to telephone subscribers * * * and the sale, rental or leasing of all equipment or services pertaining or incidental thereto;” “Sales of service for transmission of messages by telegraph companies;” “Sales or charges for all rooms, meals and drinks furnished at any hotel, tavern, inn, * * * ” and other similar places; and “Sales of tickets by every person operating a railroad, sleeping car, * * * and certain other facilities.” Following the section pertaining only to the definition of “words, terms and phrases,” there is Section 144.-020 which imposes an excise tax of two per cent upon seven separately enumerated and described transactions, the first of which is “every retail sale in this state of tangible personal property.” The remaining six transactions upon which the two per cent excise tax is imposed are the precise transactions described in the six subdivisions of Section 144.010 subd. 1(8), and which by legislative definition are “embraced” within the meaning of the term “sale at retail.”

Appellants seize upon the language used in the definition of a “sale at retail” as including “any transfer * * * of the ownership of, or title to, tangible personal property for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration ; * * (Italics added). The specific point in their brief is that the transactions made pursuant to the lease agreements are subject to the two per cent sales tax because (a) they “provide for the transfer of the 'ownership of’ tangible personal property,” (b) they ■“transfer the right to continuous possession or use,” and (c) they “are closed transactions constituting a sale.” In International Business Machines Corporation v. State Tax Commission of Missouri, Mo., 362 S.W.2d 635, this court recently had before it the question of whether certain transactions, whereby International Business Machines Corporation rented or leased business machines, constituted taxable events which resulted in the rental payments being subject to the two per cent sales tax. Reasons (a) and (b) advanced by appellants in this case were advanced by the State Tax Commission in the previous case in identical or equivalent language, and the authorities cited in support of these two contentions in each case are precisely the same. After setting out and discussing the applicable provisions of the statutes, it was stated in the previous case that “the statutes do not in terms define rental or lease transactions as 'sales at retail,’ ” and it was held that “had the legislature desired or intended to impose a sales tax on any and all lease transactions it would have been a very simple matter to plainly manifest that purpose by express provision in the act.” It was then concluded that “By carefully defining ‘sale at retail’ and purposefully embracing in the definition and the tax certain rental-type transactions, it would appear that other rentals and leases were not embraced.” It is thus evident that in the International Business Machines Corporation case this court has ruled, and we are convinced correctly, the precise issues presented and the contentions made by appellants in this case by what we have designated as their reasons (a) and (b). We see no occasion for further discussion of these two contentions which could consist of no more than a restatement of the views previously set forth. We necessarily conclude that the trial court did not err, for reasons (a) and (b) advanced by appellants on this appeal, in ruling that the rental or lease transactions of motor vehicles made pursuant to the contracts used by respondents are not subject to the sales tax.

In support of reason (c) advanced by appellants, which was not presented in the International Business Machines Corporation case, they cite Section 144.010, subd. 1(7) which provides that the term “sale” or “sales” includes “installment and credit sales, and the exchange of properties as well as the sale thereof for money, every closed transaction constituting a sale, and means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for valuable consideration and the rendering, furnishing or selling for a valuable consideration any of the substances, things and services herein designated and defined as taxable under the terms of sections 144.010 to 144.510.” Appellants’ argument as to this subsection of the statute may be stated as follows: (a) the contractual obligation or right of the lessees to purchase the vehicle in the event of cancellation of the lease by the lessee “should bring these contracts within the concept of what the statute considers to be ‘closed transactions’ constituting a sale,” and (b) since conditional sales agreements constitute “sales” within this statutory definition it is inconsistent to hold that the leases do not constitute sales merely because “the installment payments are called rental payments.”

We have taken up appellants’ contentions in the order presented, but it is evident that if rental or lease transactions under consideration do not constitute “sales” as legislatively defined, they cannot constitute “sales at retail,” and the discussion of reason (c) properly should have preceded the discussion of reasons (a) and (b). However, in any event, the lease agreements of respondents do not constitute an installment sale, and they do not constitute a “closed transaction constituting a sale;” they are what they clearly appear to be, an agreement to lease with the right to purchase which when and if exercised constitutes a sale. They cannot constitute a “closed transaction constituting a sale” when the right not to purchase exists and when the duty to sell is not absolute. Appellants assume, without any attempt to justify the assumption, that the payments for the use of the vehicle under the lease agreements constitute “installment payments.” The purchase price of the vehicle is never paid, nor is the title or right to title of the vehicle ever acquired, by reason of the lessees making the rental payments, and the purchase price of the vehicle to the lessee, if it is purchased, is not affected by or based on the amount of the rental payments previously made or agreed to be made. The statutory definition of “sale” or “sales” relied on by appellants does not result in the transactions made pursuant to the rental or lease agreements of respondents being taxable events for the application of the sales tax.

Appellants next assert: “Respondents’ motor vehicle lease contracts provide for the acquisition of the ownership of, or title to, tangible personal property through a sale and are subject to the Missouri Use Tax Law.” The scope of this contention is by no means clear. It appears from the language of the point that it is contended that the transactions are subject to the use tax in any and all events. We need not attempt to analyze further this contention to arrive at its precise limits. Section 144.610, the use tax imposing section, provides for a use tax on “storing, using or consuming within this state any article of tangible personal property purchased * * Section 144.605(8) defines, for use tax purposes, “tangible personal property” to be “all items subject to the Missouri sales tax as provided in subdivision (1) and (3) of section 144.-020.” We have held that the lease or rental of motor vehicles pursuant to the contracts of respondents do not constitute taxable events under Section 144.020, subd. 1(1), which imposes a sales tax upon “every retail sale in this state of tangible personal property.” Subdivision (3) of Section 144.020, subd. 1 applies only to sales of “electricity or electrical current, water and gas.” Therefore, the statute which' imposes a use tax does not include the rental or lease transactions of respondents under consideration in this case. In addition, appellants make no comment on or attempted explanation of Section 144.615(4) which provides that there is “specifically exempted” from the Compensating Use Tax Law “Motor vehicles subject to the motor vehicle use tax.” This exemption extends to the motor vehicle, not just to certain transactions pertaining to the motor vehicle, and it is respondents’ contention throughout this litigation that the motor vehicles rented or leased pursuant to their contracts are subject to Section 144.440, the motor vehicle use tax, if required by reason of their use to be licensed in this state. The burden is on appellants on this appeal to show that the transactions made pursuant to the lease and rental contracts are taxable events under the Compensating Use Tax Law, and they have not done so.

For the reasons stated the judgment of the trial court is correct, and therefore it is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

The foregoing' opinion by STOCK-ARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: WESTHUES, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Clarence Herbert TOMLINSON, Appellant.
    No. 49429.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.
    Rollin J. Moerschel, Niedner, Niedner & Moerschel, St. Charles, for appellant.
    Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty.. Gen., Jefferson City, for respondent.
   WESTHUES, Judge.

The defendant in this case was convicted on a charge of attempting to obtain a sum of money by means of a false or bogus check within the meaning of Sec. 561.450, RSMo 1959, V.A.M.S. The information further alleged that the defendant had previously been convicted of a felony. After a jury had found the defendant guilty, the trial court fixed defendant’s punishment at four years’ imprisonment in the State Penitentiary. Defendant appealed from the judgment entered.

The defendant filed a motion in the trial court to quash the information on the ground that it failed to charge an offense under Sec. 561.450, supra. This motion was overruled.

On this appeal, defendant contends that the evidence in the record is insufficient to sustain a conviction; that the instruction (No. 2) submitting the case to the jury does not conform to the evidence and that the evidence is insufficient to sustain a charge that the check in question was false. Further error is claimed in the trial court’s giving instruction No. 2 on the ground that it failed to require a finding “that the defendant knew there was no account in the Bank of St. Ann.”

.To answer'those questions, it is necessary to set forth the information, instruction No. 2, and the substance of-the evidence. The charging portion of the information reads (omitting the allegation as to previous conviction) : “That Clarence Herbert Tom-linson on the 16th day of October, 1961, in the County of St. Charles, State of Missouri, did then and there wilfully and unlawfully and feloniously, with the intent to cheat and defraud, did attempt to obtain from one Dan Frick, agent for National Food Store, 2500 W. Clay, St. Charles, Mo., money in the sum of Forty-six and 50/100 Dollars ($46.50) by means of a false check, to which check he did sign the name of one Larry D. Rohmann as maker of said check and which check was dated October 16, 1961 and drawn on the Bank of St. Ann, St. Ann, Missouri, payable to the holder of said check by use of the word ‘Cash’ and which check was in the amount of $46.50, there being no account at said time in the name of Larry D. Rohmann in the Bank of St. Ann, St. Ann, Missouri, *

Instruction No. 2 reads: “The Court instructs the Jury that if you find and believe from the facts and circumstances in evidence in this case, beyond a reasonable doubt, that the Defendant, Clarence Herbert Tomlinson, on or about October 16, 1961, in the County of St. Charles, State of Missouri, did wilfully and unlawfully and feloniously, with the intent to cheat and defraud, attempt to obtain from one Dan Frick, agent for National Food Store, 2500 West Clay, St. Charles, Missouri, money in the sum of For-six and 50/100 Dollars ($46.50), by means of a false check, to which he did sign the name of one Larry D. Rohmann as maker of said check and which check was dated October 16, 1961, and drawn on the Bank of St. Ann, St. Ann, Missouri, payable to ‘Cash’ and which check was in the amount of Forty-six and 50/100 ($46.50), and that there was no account at said time in the name of Larry D. Rohmann in the Bank of St. Ann, St. Ann, Missouri, you will find the Defendant guilty of attempting to obtain money by means of a false check.

“Unless you so find the facts, you will find the Defendant not guilty of attempting to obtain money by means of a false check.”

The State’s evidence justifies the following statement: On October 16, 1961, the defendant Tomlinson entered the National Food Store in St. Charles, Missouri, made out a check for $46.50 on the Bank of St. Ann payable to “Cash” and signed the name of one Larry D. Rohmann as the maker of the check. He asked the clerk to cash the check and presented an identification card in the name of Larry D. Rohmann. The clerk was unable to locate the store’s copy of the identification card and called the manager. The manager called the St. Charles police. An officer arrived and, after a brief conversation with defendant, placed the defendant under arrest. Defendant informed the officer that he was Rohmann. The State introduced in evidence a written statement signed by the defendant. A portion of this written statement reads: “ ‘On Monday, October 16, 1961, Larry and I came to St. Charles to cash another check. I made the check out to cash on the Bank of St. Anns, Missouri, for forty-six dollars and fifty cents. Larry drove me out to the National Food Store in St. Charles, Missouri, and told me to hurry. I was in the store thirty to forty-five minutes. I went up to the cashier counter and had to wait this length of time till the manager, Mr. Donald Hawkins, arrived. I had Larry Rohmann’s identification card to cash the check.’ ”

The person referred to as “Larry” in the statement was Larry D. Rohmann. The defendant informed the police after he arrived at the police station that Larry was his brother-in-law which fact was true.

The State introduced evidence that Larry and his wife had had an account at the Bank of St. Ann but that it had been closed for a number of months. It was further disclosed by the State’s evidence that the employees of the store were not acquainted with either the defendant or Larry D. Rohmann.

Larry Rohmann and his wife testified for the defendant. These witnesses stated that the defendant had authority to sign their names to checks.

It is our opinion that this conviction of the defendant cannot he upheld in the state of the record before us. An essential element of the alleged offense was omitted, that is, knowledge on the part of the defendant that there were not sufficient funds in the account of Rohmann at the bank to cover the check. The information did not charge, nor did the instruction (No. 2) require a finding, that the defendant knew there were no funds in the Bank of St. Ann to cover the check. The circumstances as shown by the evidence may be sufficient to justify such a conclusion. However, the jury was not required to find such fact in order to find the defendant guilty.

The State’s evidence justified an inference that Rohmann authorized the defendant to use his credit card and to sign his name to the check in question. Had Roh-mann’s account at the bank been active and had the bank cashed the check in question, Rohmann would have had no recourse against the bank.

The State relies upon the case of State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, by the Court en Banc, as authority that the judgment of conviction should be sustained. In the Hartman case, the defendant cashed what was represented to have been a payroll check of the St. Louis Shoe Manufacturing Company, when in fact it was not and had not been signed by any employee of the company and was unauthorized. It was, in fact, a false and bogus check. The information so charged and the evidence sustained the charge. In substance, it was charged and proved that the representations made were false and known to have been false and the jury was required so to find or to acquit the defendant. It is obvious that the facts in the Hartman case were materially different from the facts in the case before us.

In the case of Williams v. Territory of Arizona, 13 Ariz. 27, 108 P. 243, 27 L.R.A.,N.S., 1032, cited by the State, the defendant wrote a check on a bank in which he never had had funds. That fact distinguishes the case from the case now before us. In this case, Rohmann did have an account at the bank in question some months prior to the day the check was written. Furthermore, Rohmann did not sign the check. He is not the defendant. The evidence justifies a finding that the defendant had authority to use Rohmann’s identification card and to sign Rohmann’s name to the check. Rohmann and the defendant may have conspired to cheat and defraud the National Food Store. However, to convict the defendant, the jury should have been required to find that the defendant knew when he signed the check that there were no funds in the bank at that time.

The case of United States v. Clark, D.C., 19 F.Supp. 972, also cited by the State, was a vote fraud case. It is not in point on the issues before us.

We do not rule that the facts and circumstances of this case do not support a charge properly presented under Sec. 561.-450, supra. We do rule that an essential element was omitted, that is, that the defendant knew there were no funds in the bank to the credit of Rohmann.

For the error indicated, the judgment is reversed and the cause remanded. It is so ordered.

All of the Judges of the Division concur and HUNTER, Special Judge, concurs.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John Sherman MILES, Appellant.
    No. 49415.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.

      J. K. Owens, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Timothy G. Noble, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

Defendant was charged by an information filed in the Circuit Court of Clinton County, Missouri, with the crime of stealing property having a value of more than fifty dollars, to wit: five diamond rings of the value of $700, the personal property of one F. H. Ames. On trial the jury returned a verdict of guilty of felonious stealing, as charged in the information, and assessed defendant’s punishment at one year’s imprisonment in the county jail. A motion for new trial was filed and overruled and, after judgment and sentence, defendant filed notice of appeal.

The transcript on appeal fails to show that defendant was formally arraigned and entered a plea of not guilty; however, defendant was represented by counsel and announced ready and went to trial on the 11th day of January, 1962. In view of this record the failure of the transcript to show formal arraignment and a plea of not guilty does not constitute reversible error. See Section 546.020 RSMo 1959, V.A.M.S.; Supreme Court Rule 25.04, V.A.M.R.

Appellant has not favored us with a brief and it will be necessary for us to examine the assignments of error in his motion for a new trial. One of these assignments is that the court erred in overruling defendant’s motion for a judgment of acquittal tendered at the close of all the evidence. It is, therefore, necessary for us to review the evidence favorable to the State.

The State’s evidence tended to show that one Floyd Herbert Ames was the sole owner of a jewelry store located in Cameron, Clinton County, Missouri, and that on March 25, 1960, a man and a woman entered his jewelry store and asked to look at some men’s diamond rings. Mr. Ames was not acquainted with either of the parties at that time, but at the trial he identified the defendant as the man and he named Helen Mae Morris as the woman. They entered his store about 3:30 p. m. and Mr. Ames, in waiting on them, obtained a tray of rings from his safe which contained two men’s rings with diamond settings. He placed the tray on the counter and exhibited the rings to the parties. Defendant said he liked the larger of the two rings “pretty well.” Thereafter, defendant asked Mr. Ames if he had any larger diamonds. Mr. Ames replied that he had one, and he also had some mountings to show him. Mr. Ames then obtained a larger stone and about six mountings and stepped up front to better show them to defendant. In doing so he had walked some ten feet forward from where they had looked at the other rings in the tray on the counter.

While Mr. Ames was exhibiting the larger stone and the mountings to defendant, defendant’s companion, Helen Mae Morris, would walk back and forth to where Mr. Ames had placed the tray containing the other rings. Defendant would frequently ask her opinion of the different mountings presented to him, and he would say he didn’t like some and did like others. The lady “always would say, T like that one, but I like this one back here too.’ ” This occurred three or four times and finally defendant said: “I think that I like this one, and I will probably be back to have you mount this one up for me, but I want to think about it a few minutes.” Defendant and his companion then left the jewelry store and Mr. Ames went back to check the tray on the counter and he promptly noted that the man’s ring they were looking at was not there. He immediately went to the door and, as he stepped out on the sidewalk, he saw a car was parked immediately in front of his store and just back of it was a Chevrolet Impala, a dark-colored car, and defendant was under the wheel and had the motor started. The lady was sitting close to him and was showing him something she had in her hand. When she saw Mr. Ames she put her hands down in her lap. Mr. Ames motioned to defendant and said, “Hold it, I want to talk to you.” However, defendant didn’t “hold it”, but “took off very speedily around this other car.” Mr. Ames' took the license number of the car and observed it as it went through two stop signs without stopping.

At the trial Mr. Ames identified defendant as the man who had been at his store on the occasion in question, and he also identified three exhibits, to wit: two sets of ladies’ rings (each consisting of an engagement and a wedding ring) which had been in one of the trays that he put on the counter and also one gentleman’s ring, which had been shown to defendant. He stated that all of the rings were his property and were missing from his store after defendant’s visit. He fixed the value of one set of ladies’ rings at $350, the other set at $300, and the gentleman’s diamond ring at $225.

On cross-examination Mr. Ames testified that he was facing the defendant at all times; that he didn’t know whether or not the defendant personally took the rings from his store; that he did not see defendant take the rings; and that part of the time-defendant was about ten feet away from where the rings were placed on the counter. Defendant wore a dark suit with large patch pockets.

Other testimony tended to show that about five o’clock on the same afternoon (March 25, 1960) the Sheriff of Clinton. County, William Ditto, went out to a particular place on a country road or “lane” about three quarters of a mile northwest of Plattsburg in Clinton County. The place-was about a quarter of a mile west of County Road “Y”. At a gate on the north side of the mentioned “lane”, the sheriff found a box filled with different articles of women’s and men’s clothing, skirts, suits and other articles, some of which bore sales price tags. He also found a new chain saw beside the box. He took this box and the chain saw to his home and while he and his wife were examining the articles from the box they found five rings in the toe of a ballerina shoe. The five rings were those offered in evidence at the trial and identified, as stated, by Mr. Ames as his property.

About 6:30 p. m. on the same day the sheriff called one of his deputies and sent him out to “stake out” the place where the sheriff had removed the box and the chainsaw from beside the road. About 7:30 p. m. the deputy “radioed” the sheriff and the sheriff went out immediately to the place where he had found the mentioned-merchandise. When he arrived, he found' the deputy with an automobile across the road some 200 yards west of the place where the merchandise had been found. The sheriff drove his car in from the east on the same road and between them was a car with two men in it. It was a ’57 Dodge. The two men were ordered out of the car and placed under arrest. Defendant was one of the men, and he was seated under the steering wheel of the car. The men; were taken to the sheriff’s office where they were questioned by the sheriff and others. Defendant admitted that he had been in-. Cameron on the evening in question to see-about a horse or something, and that he had a girl with him. He further stated that he and the girl were in the jewelry store in question; and that the girl had some rings in her hand on the way home after they left Cameron. On the same night the defendant also told the sheriff that he was out on this “lane” looking for a poker game and that he and the other fellow were both looking for a game in Excelsior Springs. On cross-examination the sheriff said the defendant may have denied he was in Cameron on the night of his arrest, but that he didn’t deny it the next morning.

Defendant took the stand in his own behalf and testified that he worked at Sheffield Steel; that he lived at 8819 South Noland, Kansas City, Missouri, near Ray-town, where he owned thirty-seven acres; that he bought livestock, traded horses and other livestock; and that he was not in Cameron on March 25, 1960. He further denied that he had told the sheriff that he was in the jewelry store with a woman on that date, or that she showed him any rings in the car. He further testified that at the time of his arrest he was on his way to Cameron to buy some livestock, but that the fellow with him was driving and they got lost “going to Cameron”; and that as they were driving up the road, or “lane”, in question, they came upon a police car across the road, and they just kept sitting in the car until they were ordered out.

The motion for judgment of acquittal presented at the close of all the evidence charged that the State had failed to prove facts sufficient “to constitute a cause of action against the defendant”; and that the facts “attempted” to be proven in this case were insufficient, as a matter of law, to prove defendant guilty of the charge or to constitute substantial evidence against him. In determining the issue presented we consider the evidence favorable to the State as true, disregard defendant’s evidence and give the State the benefit of all favorable inferences reasonably to be drawn from all the evidence. When so considered the evidence was sufficient to support a finding that defendant and his companion were acting together with a common intent to steal the rings from the store, since the rings were missed immediately after the two left the jewelry store. Guilty knowledge and cooperation with his companion could be inferred on defendant’s part from defendant’s refusal to stop when Mr. Ames attempted to stop him, and from the rapidity with which the automobile was driven away. The failure to stop at the two stop signs further evidenced haste to escape. An inference could be drawn from the presence (a few hours later) of the rings and other property by a gate on a country “lane” off an improved road that defendant and his companion had placed the property there for fear of hot pursuit and interception by officers of the law; and that the rings had been so placed is further supported by the fact of defendant’s return later the same evening to the place where the property had been stored, although he was then accompanied by a male companion and was driving a different automobile. The evidence was substantial and sufficient to support the submitted finding “beyond a reasonable doubt * * * that at the County of Clinton and State of Missouri on or about the 25th day of March, 1960, the defendant, John Sherman Miles, either alone or knowingly acting in concert with another, did wilfully, unlawfully and feloniously take, steal and carry away five diamond rings from the possession of F. H. Ames with the intent to unlawfully and feloniously convert the same to his own use and permanently deprive the owner thereof without his consent, and that the same were the property of F. H. Ames and of the value of $50 or more * * State v. Dowling, 360 Mo. 746, 230 S.W.2d 691, 694(4, 5).

Error is also assigned on the court’s action in overruling defendant’s motion for judgment of acquittal offered at the close of the State’s evidence. There is no merit in this assignment as the motion was waived when defendant took the stand and testified in his own behalf. State v. Scott, Mo.Sup, 299 S.W.2d 526, 528(1, 2); State v. Deyo, Mo.Sup, 358 S.W.2d 816, 819(1).

It is further charged that the court erred in not discharging the jury panel because, after voir dire examination and before the trial jury had been selected, the complaining witness had talked with propective jurors. One of the jurors testified that, after the voir dire examination was completed, he returned to a hall outside the courtroom and, while standing with four other men, Mr. Ames (the prosecuting witness) spoke to them, talked about the weather and “passed the time of day,” but said nothing about the case. Mr. Ames also testified that he saw and spoke to this juror in the hall and the juror asked him whether or not this case had ever been tried before and he replied that it had not. In this connection we may say that it subsequently appeared at the trial that Helen Mae Morris had been previously tried and discharged in connection with the alleged theft from the Ames Jewelry Store. Apparently the inquiry may have resulted from this fact. Defendant also testified that he saw Mr. Ames talking to jurors in the hall but did not know what they were talking about. Defendant’s counsel testified that he saw Mr. Ames talking to the jurors and overheard only the words “he is tough”, but heard no names mentioned. The court considered the evidence and overruled the motion to discharge the panel. There was no other evidence tending to show that Mr. Ames did anything more than casually “pass the time of day” or recognize acquaintances. Mr. Ames, being a jeweler at Cameron for some thirty-eight years, was no doubt well known to some of the jurors and in “passing the time of day” with them in the hall in the presence Of others no prejudice to defendant necessarily resulted. In any case, a determiriation of the matter was for the trial .'court under the evidence presented. While, the conduct of a prosecuting witness in even innocently visiting with the jurors-is to be avoided, nevertheless, the court had broad discretion in determining whether a mistrial should be declared and, under the" facts shown, the court did not abuse its discretion in overruling the motion to declare a mistrial and discharge the jury panel. State v. Akers, Mo.Sup, 328 S.W.2d 31, 34-35. And see State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 123; State v. Scott, supra, 299 S.W.2d 526, 530 (6); State v. Taylor, Mo.Sup, 324 S.W.2d 643, 648, 76 A.L.R.2d 671.

It is next contended that the court erred in permitting the sheriff to testify as to what was said by people when the defendant was not present and in allowing the-sheriff to testify to statements made by the defendant while he was under arrest and before arraignment. The testimony intended to be referred to in the first portion of this assignment is not sufficiently pointed out and we cannot determine from a reading of the record to what evidence the-assignment is directed, in fact we find no such evidence. As to the second portion of the assignment, we find no testimony of the sheriff with reference to any statements by defendant that were admitted over defendant’s objections. In any case, none of the evidence intended to be referred to is pointed out with sufficient particularity to comply with Supreme Court Rule 27.20. No error appears.

Error is assigned on the court’s action “in allowing the complaining witness to testify, over the objection of the defendant, to hearsay evidence and to evidence as to his opinion.” This assignment is insufficient to preserve anything for review; however, no such evidence was admitted over defendant’s objection.

Error is assigned on the court’s action in giving Instruction 1 for the reason that said instruction was broader than the information; and that “it assumed facts not in evidence and * * * commented upon the evidence.” This assignment is ■insufficient to preserve anything for appellate review because it does not point out in what respects the instruction was broader than the information, or state what facts not in evidence were assumed or in what way it commented upon the evidence. Supreme Court Rule 27.20. While the charge in the information was directed to defendant alone, under the facts in evidence, nevertheless Instruction No. 1 was not erroneous because it contained the abstract statement that “all persons who act together with a common intent in the commission of .-a crime are equally guilty”, because the ■instruction then proceeded to require a finding as hereinbefore set out. State v. Clark, Mo.Sup., 277 S.W.2d 593, 602(11); State v. Burns, Mo.Sup., 280 S.W.2d 119, 122(4); State v. Reece, Mo.Sup., 324 S.W.2d 656, 660(9); State v. Harris, Mo.Sup., 351 S.W.2d 713, 716(6); State v. Russell, Mo.Sup., 324 S.W.2d 727, 732(11).

Error is further assigned in the motion for a new trial on the court’s action in giving Instructions 2 and 3 for the reason that “they did not properly state the law in regard to said instructions.” It is also charged that “the verdict of the jury was against the law”; and that “the verdict of the jury was against the weight of the evidence.” These assignments are not sufficient to preserve any matter for appellate review. Supreme Court Rule 27.20. State v. Murray, Mo.Sup., 280 S.W.2d 809, 813(13, 14); State v. Harris, Mo.Sup., 356 S.W.2d 889, 891(6); State v. Alberson, Mo.Sup., 325 S.W.2d 773, 775(2); State v. Garcia, Mo.Sup., 357 S.W.2d 931, 934(2).

The final assignment of error in the motion for new trial is that the verdict was the result of a compromise for the reason that the charge in the information and the evidence offered at the trial was to the effect that the property alleged to have been stolen had a value far in excess of $500, and the fact that defendant received only a sentence of one year in jail evidenced a compromise verdict. We find no merit in this assignment. The facts stated do not support the conclusion. The offense charged only required a finding that the value of the property stolen was “at least fifty dollars”. Section 560.161 RSMo 1959 (Laws 1955, p. 507), V.A.M.S. A wide range of punishment was provided by the statute and the extent of the punishment was in nowise based upon or contingent upon the value of the property taken in excess of fifty dollars. Many factors may' have entered into the determination of the extent of the punishment, including the fact that the property was recovered.

No prejudicial error appears in connection with those matters which we review upon the record under Supreme Court Rule : 28.02 even though defendant has made no allegation of error with respect thereto.

The judgment is affirmed.

All of the Judges of the Division concur, and HUNTER, Special Judge, concurs.


author: ELMO B. HUNTER, Special Judge.,

text:
    STATE of Missouri, Respondent, v. Edward Roy HOLMES, Appellant.
    No. 49445.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.

      Charles M. Shaw, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., James P. Jouras, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   ELMO B. HUNTER, Special Judge.,

On January 5, 1962, there was filed in the ‘Circuit Court of St. Charles County, Missouri, an information charging defendant, Edward Roy Holmes, with the crime of felonious assault. Thereafter, the cause •was tried, and the jury returned a verdict .finding defendant guilty as charged and assessed his punishment at three months in the county jail together with a fine of ■$500.00. After an unsuccessful motion for new trial and allocution, defendant has .appealed from the resultant judgment.

Although the defendant was represented by counsel at every stage of the proceedings in the circuit court, he has not favored this court with a brief. The case is before us on the transcript of the record on appeal and a brief filed by the State. Our duty is to review the valid assignments of error set forth in the motion for new trial (S.Ct. Rule 27.20), and the portions of the record required by S.Ct. Rules 28.02 .and 28.08, V.A.M.R.

A brief statement of the evidence is essential to an understanding of certain assignments of error contained in the motion for new trial, two of which being that the state did not present evidence sufficient to sustain the charge of felonious assault, and that at best the evidence tended only to support a charge of common assault.

William A. Solomon, the complaining witness, left his place of employment at McDonnell Aircraft Company in St. Louis about midnight on May 11, 1961, and drove toward his home near Harvester, Missouri. He stopped for a sandwich and a beer at a supper club in St. Charles, and then continued toward his home. When he was about four miles from Harvester, his automobile was passed by a Cadillac, driven by defendant, which then continued on down the highway. Solomon continued along behind the Cadillac until he reached Caulks Hill Road, where he turned left onto that road. An IGA supermarket is located at the intersection.

Mr. Solomon testified that as he drove past the store, the Cadillac, which had turned around and was following him, came alongside the left side of his car, turned into and struck it, and forced it into a ditch along the right side of the road. Solomon got his automobile back on the road in a diagonal position and the left side of his automobile was then struck broadside by the Cadillac, damaging both left side doors so as to render them inoperable, and resulting in other substantial damage to the car.

Mr. Solomon got out of his car from the right front door and walked over to defendant’s car to speak to him. The defendant with his fist struck Solomon in the mouth knocking him down into a wet ditch on the left side of the road. The defendant then proceeded to kick and stomp the head, arms and body of Solomon, causing injury to his lip and mouth especially. The defendant wore cowboy boots, and boot heel marks and bruises were made on Solomon’s arms, chest and back. Solomon, who offered no resistance other than trying to protect his face with his arms, screamed for help. The defendant stopped his beating when other persons arrived on the scene.

The above summary of the occurrence is taken principally from the testimony of the prosecuting witness. In the main it is corroborated by the testimony of other witnesses, and to a limited extent by defendant himself who admitted he had struck and kicked Mr. Solomon at the scene of the impact of the two cars.

The well-established rule is that the court will look to and accept as true the evidence most favorable to the State, including the reasonable inferences to be drawn therefrom, in determining the question of the sufficiency of the evidence to support the jury verdict of guilt and the judgment.

To support a conviction for the crime charged, the evidence including permissible inferences therefrom must show an unlawful assault on a particular person with intent to do great bodily harm. Section 559.190 RSMo 1959, V.A.M.S.; State v. Rose, Mo.Sup., 346 S.W.2d 54, 56. Since the crime charged is assault “with intent to do great bodily harm,” the intent to do great bodily harm must be present at the time of the act of-assault.

Here, the evidence most favorable to the State clearly shows that defendant intentionally ran his automobile into the side of the automobile being driven by Solomon forcing it into the nearby ditch; that when Solomon drove his automobile out from the ditch the defendant again and with considerable force deliberately drove his car into the driver’s side of Solomon’s car, extensively damaging it and causing it to skid and be pushed sideways for a considerable distance.

An automobile is an instrumentality capable of doing great bodily harm when improperly employed. State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 607. The evidence is such as to permit the jury to find that in the heat of anger the defendant in twice causing his automobile to strike that occupied by Solomon did so intending to inflict great bodily harm to Solomon. The fact that such was defendant’s intention in doing what he did is further supported by the evidence that he continued his assault upon Solomon by brutally beating and kicking him. We find no merit in defendant’s contentions concerning the insufficiency of the evidence to support the conviction.

Section 559.220, RSMo 1959, V.A.M.S., in setting forth the elements of the crime of common assault provides it occurs when a person assaults, beats or wounds another “under such circumstances as not to constitute any other offense herein defined.” Since there was another offense, felonious assault, that was charged, supported by the evidence and found by the jury, defendant’s contention that the evidence at best supports a charge of common assault lacks merit.

The defendant’s next contention of error in his motion for a new trial is that Instruction No. 2 failed to instruct the jury that they could find defendant guilty of a felonious assault only if they found that at the time he drove the automobile into the side of the automobile occupied by Solomon he then and there intended to do great bodily harm. Instruction No. 2 required the jury to find beyond a reasonable doubt that defendant on May 11, 1961, in St. Charles County, Missouri, “did wilfully, unlawfully and feloniously make an assault with intent to do great bodily harm in and upon the body and person of William A. Solomon, by then and there driving an automobile into the side of the automobile in which the said William A. Solomon was an occupant and driver, with such means and force as-likely to produce great bodily harm * * *•” (Emphasis ours.) A fair reading of this instruction persuades that it does require a finding that at the time of the act of assault defendant had the requisite intent to do great bodily harm, and' defendant’s contention to the contrary is not sound.

The next allegation of error in the motion for a new trial is that Instruction No. 7 in effect is an instruction on circumstantial evidence and that a circumstantial evidence instruction is not warranted. The questioned portion of Instruction No. 7 reads, “The court instructs the jury that the intent with which an act is done may be proved by direct and positive evidence,, or it may be inferred from all the facts- and circumstances surrounding and attending the act and must be determined by the jury from the evidence given in the case.”' As earlier noted, intent to do great bodily harm is an essential element of the offense charged. Intent is a state of mind. It may and generally must be established by circumstantial evidence for seldom is it susceptible of direct proof. State v. Chevlin, Mo.Sup., 284 S.W.2d 563. Instruction No. 7 was first approved in 1887 in State v. Brooks, 92 Mo. 542, 5 S.W. 257, and is a proper instruction in this case. The jury was entitled to infer from the evidence concerning defendant’s conduct and statements that he intended to do great bodily harm to Solomon by driving his automobile into that occupied by Solomon.

Complaint is also made of the trial court’s failure to instruct the jury on a definition of intent. The rule is that words in common use need not be defined for the jury. State v. Gridley, Mo.Sup., 353 S.W.2d 705. “Intent” is such a word, and we are satisfied that the jury understood its plain and ordinary meaning.

Instruction No. 8 is the presumption of innocence instruction, and defendant contends it is improper because it fails to tell the jury what is reasonable doubt, although it does state what is not a reasonable doubt. The instruction reads: “The Court instructs the jury that the defendant is presumed innocent of the offense charged; that before the jury can convict him, the State must overcome that presumption by proving his guilt beyond a reasonable doubt. If the jury have a reasonable .doubt of the defendant’s guilt, they must acquit him, but a doubt to authorize an acquittal should be a substantial doubt arising from the evidence in the case and not a mere possibility of the defendant’s innocence.” This instruction has been approved many times by this court. See, State v. Cox, Mo.Sup., 352 S.W.2d 665, 675; State v. Cheatham, Mo.Sup., 340 S.W.2d 16, 20; State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343. The fact that the instruction contains an admonition that the doubt authorizing acquittal must be a substantial one and not a mere possibility of innocence does not make it erroneous. See, State v. Abbott, Mo.Sup., 245 S.W.2d 876, 880.

The final contention is that the trial court erred in permitting the State to offer as rebuttal evidence the testimony of witness King for the reason it should have been used in the State’s case-in-chief and is improper rebuttal testimony. Only three questions were asked the witness; namely, (1) whether he was behind the Solomon car from the time defendant passed the Solomon car until they reached Harvester; (2) whether he could see the Solomon car all of that distance, and (3) whether the Solomon car was weaving on the road. The first two questions are merely of a qualifying nature, and were asked to show that the witness was present and able to see what occurred. The question they were leading to was whether the Solomon car was weaving on the road. This was a proper question for rebuttal use, for after the State’s case-in-chief, the defendant for the first time claimed and testified that Solomon’s car was weaving on the highway and that this was why defendant acted as he did. This was a new issue, injected by the defendant, and was a proper subject for rebuttal testimony. See, 23 C.J.S. Criminal Law § 1050, page 1208; State v. Feltrop, Mo.Sup., 343 S.W.2d 36, 38.

In addition to our consideration of all the specifications of error contained in the motion for new trial we have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be in proper form and free from error.

Accordingly, the judgment is affirmed.

All concur.


author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. George Carthel HOOPER, Appellant.
    No. 49153.
    Supreme Court of Missouri, Division No. 2.
    Jan. 14, 1963.
    Motion to Transfer to Court En Banc Denied Feb. 11, 1963.
    Richard Wolff, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James W. Steele, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

George Carthel Hooper appeals from a judgment of conviction for robbery in the first degree by means of a dangerous and deadly weapon (a pistol), under which he was sentenced, as an habitual offender (§ 556.280, RSMo 1959, V.A.M.S.), to twelve years’ imprisonment. The case is here on a full transcript furnished at public expense, defendant having been permitted to appeal as a poor person. In the absence of a brief on his part, as here, we would look to his motion for a new trial for his assignments of error; but the state takes the position that the motion for a new trial was not timely filed, and hence preserves nothing for review.

The transcript reflects the following: Verdict returned June 1, 1961, and on June 6, 1961, “defendant was granted thirty days additional time in which to file his motion for new trial.” The next recitals of the transcript are: “And thereafter on August 23, 1961, by leave of Court, defendant filed as of June 16, 1961, Nunc Pro Tunc, the following motion for a new trial/’ etc. The motion for new trial was heard and submitted on August 29, 1961, and overruled on October 9, 1961, following which, and on the same day, allocution was accorded, judgment was entered and sentence pronounced in accordance with the verdict. Notice of appeal was filed October 16, 1961, and the transcript was filed January 2, 1962, in the circuit court, and on January 4 in the office of our clerk.

On March 13, 1962, defendant filed in the Supreme Court his “Motion to Amend Transcript” by inserting in said transcript and making a part thereof a certified copy of an instrument (tendered with the motion) styled “Court Order” which purports to sanction the nunc pro tunc filing and entering of defendant’s motion for a new trial on August 23, 1961, as of June 16, 1961, which order, omitting caption, reads as follows :

“COURT ORDER
“By leave of Court, motion of Defendant George Carthel Hooper for new trial, filed as of June 16, 1961, said motion being entered as a timely motion filed, Nunc Pro Tunc.
/s/ Richard Wolff Attorney for Defendant
/s/ Michael J. Scott Judge
Filed
August 23, 1961”

The motion to amend averred (among other things) that “the transcript does not clearly show that defendant’s motion for new trial was timely filed and that unless said Court Order be inserted and made a part of the official transcript in this cause, the motion of defendant for new trial will not appear as having been timely filed.” The motion to so amend was sustained, and the instrument tendered is before us for whatever it may be worth. Under the local practice, the signature of the attorney procuring such an order is appended to it along with that of the judge. From the fact that the order bears the signature of the trial judge, we infer it is a copy of the original minute or memorandum which went to the clerk’s office, and from which such entry was copied into, or spread upon the permanent records of the court in this case.

With respect to the time for filing a motion for a new trial in a criminal case, Rule 27.20, V.A.M.R., provides that the same “shall be filed before judgment and within ten days after the return of the verdict : Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” The rule is mandatory (State v. Ash, (Mo.) 286 S.W.2d 808; State v. Crocker, (Mo.) 335 S.W.2d 32), so that at all events the motion for new trial must be filed within forty days after the return of the verdict, the maximum period permitted by said rule.

“The power to make a nunc pro tunc order should be exercised cautiously and as justice requires. Its office is to speak what has been done, not to create; it cannot supply a jurisdictional defect by requiring something to be done which has not been done.” 60 C.J.S. Motions and Orders, § 57. For the general rule with respect to the power and authority of a circuit court to correct its record by nunc pro tunc proceedings, see Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62, 64, and cases therein cited; and with respect to that which would be closely analogous, the nunc pro tunc filing of a bill of exceptions, see Musick v. Kansas City, S. & M. R. Co., 124 Mo. 544, 28 S.W. 72, 73; Maddox v. Wabash R. Co., 73 Mo.App. 510, and Wyllie v. Heffernan, 58 Mo.App. 657.

Neither the order itself nor any part of the record before us even remotely indicates the basis or ground on which the making of the order rests. It does not appear that it was made after a hearing pursuant to notice and an opportunity for the opposite party to he heard, or that it was based on any record, minute, paper, or entry in the case. Hence there is no showing that the motion for new trial hjad been, in fact, timely delivered to the clerk’s office and placed in the files without being stamped as filed, or that it had been so delivered and inadvertently stamped filed as of the wrong date — defects which, upon a proper showing, undoubtedly could he remedied by nunc pro tunc entries; but the present order does not proceed from any such premise. There is no reference to any nunc pro tunc proceedings in the case other than the order we have set out. For aught that appears, it constitutes the sole and only step taken in that connection. The order stands alone and unsupported either by evidence, claim or fact which would have authorized its making. The language employed — the granting of leave to file now for then — ■ imports nothing more than an ex parte proceeding, and that which was ordered done was tantamount to the doing indirectly of that which could not be done directly, i. e., extending the time beyond the period fixed by Rule 27.20. The limitation of that rule cannot be evaded by the mere expedient of a nunc pro tunc entry, and any attempt to do so must, therefore, be regarded as a nullity.

For the foregoing reason, we disregard the motion for new trial because not timely filed. In passing, it may be said, however, that five of its seven assignments were so general and wanting in particularity as to render them wholly ineffectual to preserve anything for review. One of the two remaining assignments is wholly without merit, and the other is not supported by the record. The substantive allegations of the information (with adaptations to meet the particular facts of this case) are in the precise form approved in State v. Foster, Mo., 249 S.W.2d 371, 372, and, therefore, good. The court’s findings as to the previous felony convictions of defendant are sufficient and the verdict is in proper form. The record further shows allocution was accorded, and the judgment entered and sentence pronounced were regular and sufficient. The judgment is affirmed.

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. William Elmer KNICKER, Appellant.
    No. 48999.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.
    Mandamus Denied March 18, 1963.
    See 83 S.Ct. 946.

      William Elmer Knicker, appellant, pro se.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant was charged with the unlawful and felonious possession of certain narcotic drugs. See §§ 195.020' and 195.200 (all statutory references are to RSMo 1959, V. A.M.S.). The amended information also charged that defendant had been convicted of four prior felonies. See § 556.280. The trial court heard evidence outside the presence of the jury and found that defendant had been priorly convicted of said felonies as charged.

On May 5, 1961, the jury returned the following verdict: “We, the jury in the above entitled cause, find the defendant guilty of illegal possession of narcotic drugs as charged.” On the same day the court fixed the punishment of the defendant at five years’ imprisonment in the penitentiary. Thereafter, defendant was granted an additional 30 days in which to file his motion for new trial and said motion was filed on June 15, 1961. On June 22, 1961, the State filed a motion to strike defendant’s motion for new trial on the ground that it was not timely filed and was therefore a nullity. The motion to strike was thereafter sustained. Defendant has appealed from the ensuing judgment and sentence.

As appears from the foregoing, the motion for new trial was filed on the forty-first day after the date the verdict was returned and punishment fixed. Supreme Court Rule 27.20, V.A.M.R., provides that the motion for new trial “shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days : Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” We have repeatedly held that the provisions of the rule are mandatory and that the motion for new trial must, in all events, be filed within 40 days after the return of the verdict as such is the maximum time within which such filing is permitted under said rule. State v. Kenton, Mo.Sup., 298 S.W.2d 433; State v. Hooper, Mo.Sup., 364 S.W.2d 542; State v. Crocker, Mo.Sup., 335 S.W.2d 32. The motion, not being timely filed and therefore a nullity, was properly stricken by the trial court.

We have reviewed the record matters as required by S.C. Rule 28.02, V.A.M.R. The amended information follows the wording of the statute (§ 195.020) and is sufficient. The verdict has been heretofore set out and obviously is in proper form. The punishment fixed by the court was within the range prescribed by the statute. Section 195.200. Defendant was accorded al-locution and the judgment and sentence were regular and in conformity with the verdict.

No error of record appearing, the judgment is affirmed.

COIL, C., not participating.

HOUSER, C., concurs.

PER CURIAM.

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

All of the Judges of the Division concur, and HUNTER, Special Judge, concurs.


text:
    STATE of Missouri, Respondent, v. Edgar Lee HOWE, Appellant.
    No. 49633.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.
    No appearance for appellant.
    Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   WESTHUES, Judge.

This is a proceeding under S.Ct.Rule 27.-26, V.A.M.R., filed by the defendant Edgar Lee Howe in the Circuit Court of Jackson County, Missouri, to set aside a conviction of Howe on a charge of first degree robbery. The trial court entered an order wherein the court made a finding to the effect that “having examined the application of petitioner, and reviewed the files and record in said cause, finds that petitioner is entitled to no relief.” Howe filed an application to appeal as a poor person which the trial court sustained. An appeal was taken to this court.

On this appeal, Howe filed a brief pro se and the State filed a brief.

As we shall see in the course of this opinion, the trial court’s ruling was correct and should be affirmed. All of the matters complained of by Howe were either disposed of on his trial and on his appeal of his conviction or were matters of exception that cannot be raised in this proceeding.

The record shows that Howe was convicted in the Jackson County Circuit Court on a charge of robbery first degree. The information alleged that Howe had previously been convicted of a felony. The trial court so found and after a jury had found Howe guilty, the court assessed a punishment of seven years in the penitentiary. On appeal to this court, the conviction was affirmed. See State v. Howe, Mo., 343 S.W. 2d 73.

We shall now dispose of the complaints made by Howe in his motion to vacate the judgment of conviction. In one complaint, Howe says that he was found guilty of first degree robbery and a jury assessed a punishment of five years, but that the trial court assessed a punishment of seven years’ imprisonment and that this was not authorized. The record does not support Howe’s complaint. The jury verdict did not mention any punishment. The court followed the procedure prescribed in Sec. 556.280, as amended Laws 1959, V.A.M.S. There is no merit in Howe’s complaint. See 343 S.W.2d 73(1).

Complaint is made that the trial court did not have jurisdiction to place defendant on trial. The ground assigned is that he, Howe, was not extradited from the State of Kansas where he was found but that he was kidnapped and brought to Missouri. The record does not show this to have occurred, but suppose defendant had been brought to Missouri against his will and without extradition. That fact would not defeat the court’s jurisdiction. Frisbie v. Collins, 342 U.S. 519, 1. c. 522-523, 72 S. Ct. 509, 1. c. 511, 512(4-6), 96 L.Ed. 541.

In the brief, Howe states that no charge was pending against him at the time he was kidnapped and brought to Missouri; that therefore the Frisbie case is not in point. The record does not show that no charge was pending against Howe when he was brought to Missouri. Furthermore, we are of the opinion that such fact would not deprive the court of jurisdiction.

The next point presented is that the State obtained evidence against Howe when he was kidnapped which evidence was used against him at the trial. It is contended that this evidence was illegally obtained and therefore could not be used against him. In the brief, Howe claims that the United States Supreme Court, in the case of Mapp v. Ohio, 367 U.S. 643, 644, 81 S.Ct. 1684, 6 L.Ed.2d 1081, ruled that evidence illegally obtained should not be used against a defendant in a criminal case. That rule has been followed in Missouri, for many years and long before the Mapp case was decided. State v. Lock, 302 Mo. 400, 259 S.W. 116, 1. c. 128(13) (14); 22A C.J.S. Criminal Law § 657(5), p. 587. However, the proper procedure in such cases is to file a motion to suppress the illegally obtained evidence. The record does not disclose any motion to suppress. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 1. c. 887(14, 15); State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 1. c. 91(3), 103 A.L.R. 339; 23A C.J.S. Criminal Law § 1060, Note 46, pp. 8 and 9.

Howe alleged further in his motion and briefed the contention that he was not afforded a speedy trial. The record shows that the alleged crime was committed on November 10, 1959. An information was filed on December 18, 1959; an amended information was filed on March 3, 1960. Howe was tried and convicted on March 8, 1960. There is no merit to this contention. See Secs. 545.890, 545.900, and 545.910, RSMo 1959, V.A.M.S.

In the suggestions filed in the Circuit Court in support of the motion to vacate, Howe stated that the information did not support the charge as proven at the trial in that the charge was that the money was taken from Harold G. Shelton and the evidence was that the money belonged to Hill Brothers Shoe Store. This complaint is not supported by the record. See 343 S.W.2d 74, where it is stated that “The State’s evidence showed that on November 10, 1959, Harold Gene Shelton, in charge of Hill Brothers Shoe Store, in Kansas City, and Mrs. Teresa Tryon, cashier, were held up by a man with a gun, who had been in the store earlier that evening and had bought a pair of shoes, but had come back shortly before closing time. The robber took their billfolds and the money from the cash register/’ It is evident that Howe has no legal ground for complaint.

The order of the trial court overruling the motion to vacate the judgment of conviction is hereby affirmed.

All of the Judges of the Division and HUNTER, Special Judge, concur.


text:
    J. Ed EVANS and Treva Evans, Plaintiffs-Respondents, v. Roy G. MANSFIELD and Alta E. Mansfield, Defendants-Appellants.
    No. 49176.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 11, 1963.
    Gerritzen & Gerritzen, by Ray A. Ger-ritzen, St. Louis, for appellants.
    James P. Roach, Camdenton, for respondents.
   HOLMAN, Commissioner.

In this proceeding instituted under the provisions of Section 228.340 (statutory references are to RSMo 1959, V.A.M.S.) plaintiffs sought to establish a private road over land owned by defendants. A trial before the court resulted in a judgment in favor of plaintiffs and defendants have duly appealed therefrom. We have appellate jurisdiction because title to real estate is involved. Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008.

Plaintiffs own a tract of 10.8 acres located on the south shore of the Lake of the Ozarks. The roadway in question runs substantially straight in a southwesterly-northeasterly direction and connects plaintiffs’ land with a county road. It runs across a 40-acre tract of defendants’ land in such manner that approximately 15 acres lie east of the road and 25 acres to the west thereof. This tract is substantially level and is described as timber land.

In order for plaintiffs to prevail they were required to prove that the road sought is “a way of strict necessity.” Section 228.340. The sole contention of defendants upon this appeal is that the court erred in finding for plaintiffs because they did not prove that the way sought was a way of necessity, but, on the contrary, the evidence established that there existed another road by which plaintiffs could travel from the county road to their property. There can be no question but that a roadway has been in existence since 1952 by which it has been possible, at least at times, to travel by automobile from the county road to plaintiffs’ property. That road will be hereinafter referred to as the “old road.” The road sought across defendants’ land will be referred to as the “new road,” although that is not a truly accurate designation as it follows the course of a very old narrow roadway that was in existence many years ago but which, in recent years, had not been in use and trees had fallen across it. Moreover, as will hereafter appear, the new road had been constructed and had been in use prior to the time this action was filed. We will hereafter refer to J. Ed Evans as plaintiff and Roy G. Mansfield as defendant.

H. B. Hart testified that he was in the business of developing real estate; that in 1952 he obtained a contract to develop certain property in the area in which the property now owned by plaintiffs is located ; that it was necessary to build a road to obtain access to the property and after defendant refused him permission to build a road over his land he obtained permission from L. O. Nichols to build a temporary road through his land; that he constructed what is now referred to as the old road over the Nichols property; that the land over which the road ran was very rough and hilly; that he “wanted it just so I could get some trucks through, and my surveying crew, and possibly things like that”; that it was not intended as a permanent road; that after a short time he couldn’t get over the road with his car, and quit trying; that the road was not practical, was too expensive to maintain, and “you couldn’t even think about [maintaining] it” for the small amount of property it served; that “you couldn’t hardly keep it maintained unless you built some heavy culverts in there and probably concrete a lot of it.”

Plaintiff testified that he did not build a house on his land until after the new road was constructed; that prior to that time he had usually gone to his land by boat but had, on a few occasions, gone over the old road; that the old road was very hazardous and on at least two occasions when he tried to use it his car “got stuck” and he had to go back; that he had tried to go over the road in 1959 in a jeep but had to turn back because a culvert was washed out; that on one occasion when he used the road he ruined both mufflers on his car; that the old road was not passable.

Plaintiff described the circumstances under which the new road was constructed across defendant’s land. He stated that he had not wanted to build a house on his land until another road to it was built. Accordingly, in the spring of 1956, he met with defendant and L. O. Nichols and inspected the course of an old road that had previously been in existence across defendant’s land; that it was then agreed by the three of them that the new road would be constructed (over that course) and that Mr. Nichols would convey to defendant approximately 15 acres of land which adjoined defendant’s land, and in exchange therefor defendant would convey to Nichols the 15 acres of his land that would lie east of the new road; that he had suggested that they go immediately to Camdenton and have the papers prepared, but that both defendant and Nichols stated that they had complete trust in the other and, in effect, that the road could be built immediately and the transfers completed later; that when he came back in two or three weeks the new road had been constructed; that he proceeded to use the new road for about two years, but for some reason defendant and Mr. Nichols had been unable to agree upon the details of transferring the tracts they had agreed to “swap” and that in June of 1958, when he attempted to visit his place, he discovered that defendant had constructed a fence and had placed a gate across the new road and had locked the gate so he couldn’t get through; that defendant at that time told him that he had closed the road because he and Nichols “had never swapped the land.” (This suit was filed June 21, 1958, and plaintiffs sought and obtained a temporary injunction in connection therewith which permitted them to continue to use the new road until further order of the court.) Plaintiff also testified that although he had never been stopped by Nichols from using the old road, he had never been given permission to use the same.

L. O. Nichols was called as a witness for plaintiff and corroborated plaintiff’s testimony in regard to the agreement between himself, plaintiff, and defendant. He also described the old road. He stated that it was a “combination of hills and hollows” and that it crossed several big ravines; chat he put in a 24-inch culvert through one of the ravines and it washed out in two months; that in 1955 he spent $500 “touching up” the road but “it wasn’t very long until it was all washed out again”; that there are three bad hills on the road and it is not a proper place for a usable road; that “it couldn’t be made into a good passable road, it is too steep”; that in 1959 he had sold the property through which the old road ran.

Earl R. Wilson, a road contractor, testified that at one time he had worked on the old road for Mr. Nichols. In describing it he stated: “It is hilly, there are two deep gullies through there and the hill on the east end of it is very steep and very rocky, solid rock which it is hard to do anything with to maintain it so it is passable”; that it would be very expensive to build the road so that it would be passable the year round; that he saw the road in November 1960 and in his opinion it would have been possible to get over it in a passenger car at that time, but “you couldn’t go over 10 miles an hour and it would probably damage the automobile” ; that it would cost five times as much to maintain this road as an ordinary road.

Leo J. Christensen, who lives in the neighborhood, testified that he went over the road toward the end of the summer of 1960 and that he considered it a hazardous road; that it was impassable after each rain until it was graded again.

Defendant’s first witness was O. G. Cooper who was employed to maintain roads for Camden County Special Road District K. He testified that while there may have been times when the old road had washed out, he had been over it in his automobile; that the road was passable when he saw it on November 1, 1960. He indicated that there was considerable daily traffic over the road during deer season. Another witness for defendant was Arch K. Barnes. He testified that he had been over the old road during the deer season in 1959 and 1960; that the old road was just as passable as the new road, “they are both awful rough.” Defendant did not testify.

In an action of this nature it is our duty to review the case de novo, weigh the competent evidence, and reach our own conclusions as to the facts, but “due regard shall he given to the opportunity of the trial court to judge of the credibility of the witnesses.” Civil Rule 73.01(d) V.A.M.R. The essential fact issue in this cause is whether the new road was a way of strict necessity in connecting plaintiff’s property with the county road. The trial court specifically found that it was. Commissioners were appointed and in due time filed a report locating the private road and assessing defendant’s damages at the sum of $200. Defendants make no complaint about the amount of damages allowed, but have preserved their obj ections to the finding of the court upon the issue concerning the necessity for the road.

Our study of the transcript herein has caused us to independently arrive at the same conclusion as the trial court. The facts as we find them will support the judgment for plaintiffs upon two different theories.

“The fact that the way is one of necessity, that is, strict necessity, and not mere convenience, is a jurisdictional fact, and must be alleged and proved, affirmatively. Colville v. Judy, supra [73 Mo. 651], So long as the plaintiff had a practicable way to and from his land, either private or public, he had not a right, by necessity, to a way over the defendant’s lands. A way, as here used, is a right of way—the privilege of going over another’s land. * * * [A] way, as here meant, is a legal way, to use which one has a legal right, which may be enforced, and which may not be rightfully interfered with.” Cox v. Tipton, 18 Mo.App. 450, 455, 456. See also Welch v. Shipman, supra.

Defendants contend that because there is another road extending from the county road to plaintiff’s land the new road is not a way of strict necessity. That would be quite true if the old road (1) were a reasonably practical way to and from plaintiff’s land and (2) if plaintiffs had a legally enforceable right to use said road. However, we do not think the evidence affirmatively supports either of the propositions stated.

The convincing evidence in this case is clearly to the effect that the old road may not be safely relied upon as a continuous means of access to plaintiff’s land. It traverses such rough and rocky terrain that it cannot be kept in usable condition by the expenditure of reasonable sums for maintenance. In order to be a defense to plaintiff’s right to obtain a private road through defendant’s property the other available way must be reasonable and practical. See Cox v. Tipton, supra, and Reading v. Chandler, 269 Mo. 589, 192 S.W. 94. The law does not contemplate that a way is reasonable and practical if it would require an expenditure of an unreasonable amount of money in order to construct and maintain it in a dependable, usable condition. The old road was not constructed as a permanent road, is impractical, and could not be used as a dependable means of access to plaintiff’s land without the expenditure of an unreasonable amount of money for construction and maintenance. Its existence, under the circumstances, would not bar plaintiff from obtaining a way of necessity over defendant’s land.

The evidence also plainly discloses that plaintiffs did not have a legally enforceable right to use the old road. There is no evidence to indicate that it had been dedicated or legally established as a public road or that any public funds had been spent in the maintenance thereof. It was built in 1952 and this case was tried in January 1961, so the road was in existence for a period of not more than nine years before trial time. A prescriptive easement could not have been established over that road because it had not been in existence for a period of ten years and therefore no one could have used it (either adversely or permissively) for the period required to establish a prescriptive right. See Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569. It follows that the owner of the land over which the old road ran could have stopped plaintiffs from using that road and, therefore, that plaintiffs had no legally enforceable right to use the old road at the time this case was tried.

For the reasons stated, the judgment should be affirmed. It is so ordered.

COIL and HOUSER, OC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Janies Wilbert RICHARDSON, Appellant.
    No. 49333.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.

      Charles R. Burt, Columbia, for appellant.
    Thomas F. Eagleton, Atty. Gen., Frank P. Motherway, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

Upon a charge of murder in the second degree, James W. Richardson, age 19, had been found guilty of manslaughter and sentenced to ten years’ imprisonment. The appellant’s trial counsel timely filed a motion for a new trial setting forth, together with numerous subdivisions, sixteen specifications of error. A large number of these specifications of error are so lacking in detailed particularity or in their failure to set forth the “specific grounds or causes therefor” (S.Ct. Rule 27.20, V.A. M.R.) that they do not present reviewable questions. It is not necessary to again recite in detail these assignments and point out the particular respects in which they are deficient, the insufficiency of these and similar assignments is illustrated by the following list of cases. State v. Reed, Mo., 298 S.W.2d 426; State v. Miller, Mo., 360 S.W.2d 633; State v. Gray, Mo., 360 S.W.2d 642; State v. Howard, Mo., 360 S.W.2d 718. The appellant is not represented by counsel upon this appeal and for that reason the court considers all of the good and sufficient assignments of error in his motion for new trial (S.Ct. Rule 27.20) as well as those matters necessarily involved and reviewable by the court “upon the record before it.” S.Ct. Rule 28.02.

Noting very briefly, the facts were that on Saturday, May 6, 1961, the appellant James Richardson worked until 5 o’clock. After work, according to his own account, he went home, ate, took a nap, and went to the home of a friend. About 7:30 he went to the “Do Drop Inn” and there he danced and drank wine and beer until about 12:30. Then he went up on “the Strip” and found a ride out to George Jones’ “400 Club” south of Columbia. He arrived at the 400 Club about 1 o’clock and almost immediately had what he called “an argument” with Curtis Hickam, but, he said, “I don’t remember what brought it on.” In the course of this argument, according to James, Hickam told Raymond Glasgow “to get his pipe out of his car for him.” James’ Uncle Sherman, age 24, intervened to stop the argument with Hickam, and then James said, “I went back out to Glasgow and says, ‘Why do you want to go get a pipe after me’ and before he could say anything I hit him.” James stayed around the 400 Club awhile and asked Paul Walker for his gun because he was afraid “Curt might get me with his pipe.” Walker gave James his gun, a semi-automatic .22 caliber, 9 shot revolver, and he caught another ride into town and returned to “the Strip” about 3 o’clock in the morning.

And again according to the appellant, “I got out of the car getting ready to go into Merril Slater’s [Do Drop Inn] when Gene Glasgow called me and said ‘Hey Richardson, what do you mean going hitting my son?’ and before I even had time to answer he hit me and I put in two wallops, and he grabbed and I had my hands up like this then he grabbed me and threw me down and started to choke me. Somebody tried to break it up, pulled us up together, he had a hold and Will Richardson, he broke the hold loose and I was standing off in a daze and he come back towards me again so then I shot him.” The coroner recovered “3 slugs” from the body of Gene Glasgow, two in the groin and one that severed the right femoral artery causing him to bleed to death, a fourth slug went through the right forearm. James says that he did not intend to kill Glasgow, but he doesn’t know why he fired four shots.

These briefly narrated circumstances, favorably stated by the appellant incidentally, obviously support the lesser and included charge (V.A.M.S., § 556.220; State v. Foster, Mo., 338 S.W.2d 892, 896) and finding of manslaughter. V.A.M.S., § 559.020, 559.070, State v. Feltrop, Mo., 343 S.W.2d 36. It may be noted in passing that the evidence favorable to the state would have supported a conviction of murder in the second degree. Furthermore, since the appellant has been found guilty of the lesser offense of manslaughter, he is in no position to complain of the instructions defining and hypothesizing murder in the second degree. State v. Colvin, 226 Mo. 446, 126 S.W. 448.

Also in these circumstances the objection to instruction 6 (voluntary and involuntary confession or statement) concerning “an oral or written statement confessing his guilt of the crime charged” is not well taken. It may well be, as suggested by his motion, that in his statements to the police, both oral and written, the appellant has not in terms or technically “confessed his guilt of any crime.” Nevertheless, he did relate the facts and, as indicated, even his favorable narration of the circumstances supports the finding of manslaughter. There is in fact no claim that the appellant’s admissions or statements were involuntary and in these circumstances the instruction was not confusing or misleading. State v. Stidham, Mo., 305 S.W.2d 7.

The court instructed on self-defense, including the hypothesis that when the defendant shot Glasgow “he had reasonable cause to believe, and did believe, that said Gene Glasgow was about to take his life or to do him some great personal injury.” The appellant’s evidence of a battery immediately before the shooting was some evidence of provocation and required an instruction on manslaughter (State v. Smart, Mo., 328 S.W.2d 569), but the one given is the conventional self-defense instruction (State v. Robinson, Mo., 255 S.W.2d 798) and was not prejudicially erroneous in its failure to mention that Glasgow “had already attacked this defendant causing him great personal injury.” State v. Bradford, 324 Mo. 695, 24 S.W.2d 993, is the case from which no doubt the instruction was taken. The phrase that the deceased “was about to take his life or to do him some great personal injury” did not deprive the appellant of the right to act on appearances (State v. Gore, 292 Mo. 173, 237 S.W. 993), and of course if the jury found his claim of self-defense he was entitled, as the instruction permitted, to an acquittal. 41 C.J.S. Homicide § 395c(5), p. 229. Instruction 8, preceding the instructions on second degree murder and manslaughter, defined “Malice”, “Premeditatedly”, “Willfully”, and “Feloniously”. The assignment that the instruction is “confusing, conflicting, contradictory, misleading and inconsistent,” if a proper assignment at all, is not helpful. Insofar as the terms, particularly “malice” (26 Am.Jur., Homicide, § 536, p. 528) relate to second degree murder, the appellant is in no position to complain (State v. Foster, supra), otherwise the definitions were as “heretofore uniformly defined by this court” since 1877. State v. Jones, 64 Mo. 391, 395; State v. Colvin, supra.

Repeatedly the witnesses all described the deceased lying on the parking lot alongside his automobile, including the pools and trails of blood from his wounds and in these circumstances the three black, and white photographs of the same matters were not manifestly inflamatory and prejudicial. Compare State v. Floyd, Mo., 360 S.W.2d 630. Also the witnesses referred to or employed a plat Of the area and thus were testifying “diagramatically” as well as verbally and the presence of the draftsman was not necessary — the witnesses merely used the diagram as a “visual or graphical means” of expressing themselves. Annotation 9 A.L.R.2d 1044, 1047.

The most serious and difficult assignment of error is number 12, “That the Court erred in permitting the Prosecuting Attorney to persistently and repeatedly cross-examine both the State’s and the defendant’s witnesses concerning acts which occurred while the defendant was a juvenile.” In the course of the trial there were several objections to testimony related to this as-signrricnt of error, sometimes, however, there were no motions for a mistrial or requests for other specific relief, and it may well be that the assignment is deficient in its lack of “specific grounds or causes therefor.” S.Ct.Rule 27.20. Nevertheless, the question the appellant would present is plain enough from even a casual reading of the record. The problem is increasingly important and has not been previously presented at least in this jurisdiction and therefore as a caveat is given passing consideration. James called several witnesses, students, football coaches, and teachers, from Hickman High School to his good reputation for being “a peaceful and law-abiding citizen” and in the cross-examination of the state’s witnesses the defendant sometimes attempted to establish his good reputation for “truth and veracity” as well as for peace and quietude. The state, particularly in cross-examination of the witnesses to his good character, repeatedly inquired, for example, “Bob, did you know that he was made a ward of this court for tampering with an automobile in 1957 in August and thereafter [was] sent to the Missouri School for Boy’s in Boonville for receiving money gotten in a strongarm robbery?” Sometimes it was objected that this inquiry was “irrelevant, immaterial and improper,” sometimes the objection was “This is a juvenile matter” and therefore improper,

By reason of the state’s public policy with respect to juveniles and particularly by reason of § 211.271, V.A.M.S., of the juvenile code, it has become settled that the “disposition of a case in juvenile court is not deemed a conviction of a crime by the child charged and is not admissible to affect his credibility as a witness.” State v. Tolias, Mo., 326 S.W.2d 329, 333; State v. Coffman, 360 Mo. 782, 230 S.W.2d 761; 98 C.J.S. Witnesses § 507, p. 409. On the other hand, it is equally well established that a so-called character witness may be cross-examined as to good faith rumors and as to facts within his knowledge discreditable to the person to whose good reputation he has testified. 98 C.J.S. Witnesses § 387b, p. 153; State v. Cox, Mo., 333 S.W.2d 46, 49. The problem appellant has attempted to raise is whether the facts of juvenile cases and their disposition may be employed to cast doubt on, test, or discredit a witness to one’s good reputation. It is not necessary to a disposition of this appeal to attempt a definitive resolution of this serious and important problem. In addition to the inadequacies of the objections during the trial and the lack of adequately stated grounds or reasons in the motion for a new trial, some of the defendant’s witnesses even on direct examination volunteered the information that they had “heard about Boon-ville before.” In other instances defendant’s counsel inquired whether the witnesses had “heard others talk about him.” The reply was “Yes, I remember I heard about him getting in trouble once when he went to Boonville for six months.” In view of all the noted considerations the suggestion for future careful consideration is sufficient; in the particular circumstances of this record, the appellant is not entitled to a new trial upon this assignment of error. State v. Cowan, Mo., 310 S.W.2d 939, 940.

As indicated, the information is proper in form and appropriately charges the offense of manslaughter, the verdict is likewise proper in form and responsive (V.A.M.S., § 559.140), there was allocution, the sentence and judgment are proper (S.Ct.Rules 27.08, 27.09), and since there are no prejudicial errors upon the record before the court (S. Ct.Rule 28.03) the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.