author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Alvin Herden VIRDURE, Appellant.
    No. 49815.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.

      James J. Rankin, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.
   PRITCHARD, Commissioner.

Defendant was found guilty by the verdict of a jury of the possession of narcotics, and since he was charged in the substitute information filed in lieu of indictment with being a habitual criminal, this fact being found by the trial court, [RSMo § 556.280, V.A.M.S.] his punishment, after his motion for new trial was overruled and allocution was granted, was set by the court at confinement in the Department of Corrections of the State of Missouri for a period of ten years. From his judgment of conviction, defendant has perfected his appeal.

On January 31, 1962, officer Paul McCul-loch, a member of the Canine Deployment Division of the St. Louis Police Department, went to the premises of defendant (the Algiers Herb Company) at 3360 Union Boulevard in St. Louis, arriving there around 11:30 or 11:45 A.M. Other officers of the Police Department were also there, but defendant was not then present. Defendant came to his premises later after his then lawyer made arrangments for defendant to talk to the police, who were looking for defendant for a peace disturbance charge. The officers had entered the store part of defendant’s premises prior to defendant’s arrival, and were waiting for him there. Defendant was then placed under arrest on the peace disturbance charge (for which there was actually no formal charge pending, and for which no further proceedings were had, but defendant does not attack the validity of the arrest).

After the arrest, officer McCulloch asked the defendant if he could look around and make a search of the premises, and defendant told him he could look over the entire premises, he had no objection whatsoever, that the officer could look around and search all he wanted to. Defendant also gave officer McCulloch permission to search his car, and he unlocked the trunk of the car for the search. At no time did the defendant attempt to prevent the inspection and search.

Officer McCulloch then went out to his police car and brought into the store part of defendant’s premises his German Shepherd dog and had him conduct a search thereof, this dog having remained in the police car during all of the prior arrest proceedings. The dog had been given specialized training to seek out and find marijuana, and had performed that function approximately 500 times. They then went outside to where defendant’s car was parked, and had the dog make a search of the interior and trunk thereof, after defendant had unlocked it. The officer let the dog loose, gave him a command, and he went into the trunk and sniffed around, then remained in one spot, “patted around” with his nose on the spare tire and tried to push it away. The officer moved the spare tire and found a green substance on the floor mat. He then called officer Longinette who scraped up the substance, put it in an envelope, and later delivered it to the police chemist who made an analysis that this substance was dried leaf fragments of the plant Cannabis Sativa, otherwise known as marijuana.

Officer McCulloch thereafter went inside and down to the basement of the house at 3360 Union, and there released the dog, gave him a command, and the dog began sniffing around and got up on a shelf in the northwest corner of the basement where there were about 75 or 100 red and green colored boxes. The dog knocked four or five of these to the floor, then got down to where the officer could see him, and came back around the hall with one of the boxes in his mouth. The dog brought the box to officer McCulloch who put his initials on it. At the trial, McCulloch testified that the box was the same one the dog had brought to him, and that its contents, which the chemist found and testified also to be marijuana, appeared to be the same.

Defendant in testifying in his own behalf, admitted a conviction for the possession of marijuana in 1944 and a conviction for receiving goods stolen from an interstate shipment in 1951. He said further that he did not know narcotics were within the premises or in the automobile; that other persons had access to the basement where the narcotics were discovered; that in the week prior to the incident in question he had several flat tires and his car was not in his control at all times; and that his lady friend, (one Denoose Quarrels) his brother, and other individuals often drove his automobile. Defendant’s business, which he has been in for about fourteen years, consists of the sale of all kinds of medicines, tonics, remedies, oils, incense, candles, powders, a few herbs and all kinds of soda — just a regular confectionery.

Defendant first contends that the trial court erred in failing to sustain defendant’s pretrial motion to dismiss the substitute information (in lieu of indictment) for the reason that said information failed to charge a crime, it was duplicitous and failed to apprise defendant of the crime with which he was charged. In elaboration, defendant says the statute, set out below, describes acts or offenses disjunctively, and therefore the indictment or information should charge them in the conjunctive; that to “possess” narcotics or “to have under his control” narcotics are separate and distinct offenses.

The substitute information, filed June 11, 1962, eight days before trial, first charged defendant’s previous convictions, then went on to charge the present alleged offense that defendant, “on January 31, 1962, at the City of St. Louis aforesaid, did then and there unlawfully and feloniously have in his possession or under his control a certain quantity of narcotic drug, to wit: 3.61 grams of the plant, Cannabis Sativa, commonly called marijuana. In violation of Chapter 195, Section 195.020, Revised Statutes of the State of Missouri, 1959.” (Emphasis added.)

Sec. 195.020 [RSMo 1959, V.A.M.S.] provides: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this law, or to possess any apparatus, device or instrument for the unauthorized use of narcotic drugs * * (Emphasis added.)

The Missouri cases cited by defendant do, in general, support his contention that where several different acts or offenses are set forth in the disjunctive, the indictment or information should charge them in the conjunctive, if they are not repugnant, “else it will be ill as being uncertain.” State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198; State v. Settle, 329 Mo. 782, 46 S.W.2d 882; State v. Fox, Mo., 46 S.W.2d 544; State v. Barr, 326 Mo. 1095, 34 S.W.2d 477. In the one cited case most directly in point with defendant’s contention, United States v. MacKenzie, (D.C.Me.) 170 F.Supp. 797, the defendant was charged under 26 U.S.C.A. §§ 5174(a) and 5601 by having “in his possession or custody, or under his control” an unregistered still and distilling device, following the wording of said Sec. 5174(a). The court dismissed the indictment upon one of the stated grounds (as to Count I) that, “ * * * where a statute specifies in the alternative several acts constituting an offense, an indictment may allege commission of the offense by all the acts mentioned, using the conjunctive ‘and’ where the statute uses the disjunctive ‘or’. * * * It is equally well settled, however, that an indictment which alleges the several acts constituting the statutory offense in the disjunctive or alternative lacks the necessary certainty and is wholly insufficient. (Citing The Confiscation Cases, 20 Wall. 92, 104, 87 U.S. 92, 104, 22 L.Ed. 320, 322).”

Under the wording of the statute and substitute information here in question, and upon the facts and circumstances in this case, we must reject defendant’s contention that the information is duplicitous and that it did not apprise the defendant of the crime with which he was charged, and we must take a view contrary to that expressed by the court in United States v. MacKenzie, supra.

It is our view that while the words “possession” and “control” are not precisely synonymous (so that they may be used interchangeably) which would bring this case within the exception to the “disjunctive-conjunctive” rule which is recited in the cases of State v. Ellis, 4 Mo. 474, 477; State v. Moore, 61 Mo. 276, 278 and State v. Bragg, Mo.App., 220 S.W. 25, 27, (relied upon by the state in its contention that the words “possess” and “control” are synonymous) these words, as to their meanings, do have common elements. They do not connote entirely separate and distinct acts as constituting an offense. In State v. Lane, 221 Mo.App. 148, 297 S.W. 708, 709, the court said, “Webster’s International Dictionary gives the legal definition of possession as ‘[o]ne who has physical control of the thing and holds it for himself.’ All the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term ‘possession.’ ” See also State v. Lunfrunk et al., Mo.App., 279 S.W. 733, 735; State v. Compton, Mo.App., 297 S.W. 413, 414.

In Webster’s Third New International Dictionary, the words are defined: “Possess” means “to take into one’s possession;” “seize or gain control of;” “to enter into and influence powerfully or control.” “Possession” means “something owned, occupied or controlled;” “the act or condition of having in or taking into one’s control or holding at one’s disposal.” See the variety of definitions of the word “possession,” 72 C.J.S. p. 233. See also “Possession” (control, care or custody), 33 Words and Phrases p. 80; “control,” 9A Words and Phrases pp. 4, 23; and “custody,” (charge, control or possession) 10 Words and Phrases p. 720.

Under the circumstances of this case, we hold that defendant was not misled or prejudiced by the disjunctive allegation of the substitute information of the words “have in his possession or under his control” a certain quantity of narcotic drug for the reasons that the quoted words relate to the same act; their ordinary and legal meanings are interrelated; and each has elements of the other. Put another way, it could reasonably be said that since defendant had the possession of the narcotic drug on his premises and in his automobile, his control and custody were integral parts of and stemmed from such possession. The information was not bad for uncertainty. The trial court did not err, therefore, in refusing to dismiss the substitute information.

This is not to say, however, that under the holdings of the above cases cited by defendant that other disjunctive words in the statute, e. g., “to manufacture, sell, prescribe, administer, dispense or compound any narcotic drug, etc. * * would not have to be pleaded in the conjunctive, since these words constitute separate and distinct acts relating to the condemned narcotic drug.

Defendant’s next point that the trial court erred in failing to suppress as evidence the narcotics found by the police officers, on the ground that the search was conducted in violation of defendant’s constitutional rights is without merit. The testimony of the five police officers reveals without question that defendant freely, and without coercion voluntarily gave his consent to the search of his premises and automobile. (This fact was found by the trial court on the hearing on the motions to suppress evidence.) Defendant’s own testimony given at the trial was that he told the officers they could search anytime, anyplace, anywhere they wanted; that they were free to look around the place.

Defendant’s suggestion that the presence of the Police dog amounted to coercion is not supported by the record, since the evidence is that the dog was not brought from the police car until after defendant was arrested and gave his consent to the officers for the search. The arrest here was upon a charge of peace disturbance, for which arrest the officers had an order.

Under these facts, the consent to search given by defendant is binding upon him. State v. Lee, Mo., 11 S.W.2d 1044, 1045; State v. Tull, 333 Mo. 152, 62 S.W.2d 389, 392; State v. Burney, 346 Mo. 859, 143 S.W.2d 273, 274; State v. Foster, Mo., 349 S.W.2d 922, 924.

During cross-examination of defendant by counsel for the state, the following transpired:

“Q. (By Mr. Roche) Were you later, at any time, Mr. Virdure, convicted here in St. Louis, Missouri, of fortunetelling and given a fine ?
“Mr. Rankin: Just a minute. I am certainly going to object to any question like that.
“The Court: Sustained.
“Mr. Rankin: Counsel knows that is not true, improper, and I would like to approach the bench.
“The Court: I have sustained the objection.
“(The following proceedings took place at the bench without the hearing of the jury:
“Mr. Rankin: Is this a state court you are referring to, I would like to have further information.
“Mr. Roche: Misdemeanor.
“Mr. Rankin: I think counsel is asking about a Police Court thing. Are you referring to a State conviction or Federal—
“Mr. Roche: I don’t know. It is on the sheet given me as to arrests and convictions, and it would be my understanding that this would be a misdemeanor conviction.
“Mr. Rankin: I would like to say this, then: I want to object to that and reluctantly ask the Court to declare a mistrial because of counsel referring to a conviction for fortunetelling, when counsel hasn’t even taken the trouble to find out what court the conviction was in. We all know those are Police Court cases and improper to be inquired about. It is an attack on his character.
“The Court: I will sustain the objection and overrule the motion for a mistrial.
“Mr. Rankin: I would like the Court to instruct the jury to disregard the last question of counsel.
“The Court: Yes.
“(Proceedings were then resumed within the hearing of the jury as follows :)
“The Court: The last question is stricken from the record and the jury will disregard it.”

Defendant claims that the foregoing amounts to misconduct of the assistant circuit attorney in his cross-examination of defendant which deprived him of a fair trial.

It does not definitely appear here whether the question asked by counsel for the state related to a misdemeanor; counsel stated he did not know, but it was his understanding that this would be a misdemeanor conviction. Counsel for the state did not pursue the matter any further after defendant’s objection. Assuming that the matter inquired of defendant was improper in that it was not a felony or misdemeanor conviction within the permissible provisions of Secs. 491.050 and 546.260, RSMo 1959, V.A.M.S. for impeachment of an accused who takes the witness stand in his own behalf, yet no prejudicial error was committed against defendant, because as indicated above, the court sustained the objection and at first opportunity instructed the jury to disregard it. The trial court did not abuse its discretion in refusing to declare a mistrial. State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642, 646; State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530, 532; State v. Ronimous, Mo., 227 S.W.2d 58, 59.

We do not consider defendant’s assignment of error that his motion for judgment of acquittal made at the close of the state’s case was not sustained, inasmuch as defendant then proceeded to testify in his own behalf. In this situation, such assignment of error is deemed waived. State v. Vincent, Mo., 321 S.W.2d 439; State v. McIntosh, Mo., 333 S.W.2d 51, 60; State v. Washington, Mo., 364 S.W.2d 572. However, defendant renewed his motion for judgment of acquittal at the close of all the evidence, and assigns as error the. court’s failure to sustain same.

Defendant first says, under this' assignment of error, that the state failed to prove that he knew of the presence of the narcotics in his basement or in his automobile. We deem the state’s evidence ample upon this point. Defendant was in the possession of his automobile and his premises when the marijuana was discovered by the officers. From this fact and the inferences to be deduced therefrom, the jury could reasonably find, as it did, that defendant knew the narcotic drug was there upon and in his property. State v. Edwards, Mo., 317 S.W.2d 441; 72 C.J.S. Poisons § 7, p. 178, where it is said, “A defense that accused had no knowledge of the presence of the drug in his possession merely creates a conflict with a prima facie case made out by the prosecution showing possession.” The credibility of defendant’s testimony as to his lack of knowledge that the marijuana was in his premises and automobile, and the access that other persons had to both items of his property, was for the jury.

Defendant next says, as to the submis-sibility of the state’s case, that it failed to prove that the possession of the narcotic drug by the defendant was without prescription or that it was not in a container in which it might have been delivered by the sellor or dispenser, or that the narcotics had not been obtained from a pharmacist. (These are some of the exceptions to the statute contained in Chap. 195, RSMo 195¾ V.A.M.S.)

Defendant says the burden of proof is on the state to show he was not within the exceptions to the statute, citing Kansas City v. Wilhoit, Mo.App., 237 S.W.2d 919. That case does set forth the general rule that where an exception to the statute or municipal ordinance is relied upon • as a defense, and the exception is a part of the enacting clause, or its terms are part of the description of the offense, the burden of proof is upon the prosecution to prove that the accused is not within the exception or exemption, except in certain cases where the facts to prove such negative are peculiarly within the knowledge of the accused.

We comment in passing that these facts constituting the claimed exceptions would be peculiarly within the knowledge of the accused. The state would have no way of knowing them, except as to the box container which was in evidence. There is, however, another reason why defendant’s contention as to this issue must be rejected. Sec. 195.180, RSMo 1959, V.A.M.S., provides : “In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.” (Emphasis added.) This statute (unchallenged here) disposes of defendant’s above argument as to burden of proof.

The last point of defendant concerns the propriety of the giving of Instruction No. 4, which is as follows:

“The Court instructs you that in determining whether or not the drug mentioned in the evidence was in the possession of the defendant, you may take into consideration all the facts and circumstances in evidence. It is not necessary for the State to prove the intent on the part of the defendant, Alvin Herwden Virdure, to use said drug, or to prove that he intended that said drug be used in any particular manner, if you find that he had it in his possession. It is sufficient for the State to show that the drug was in his custody and possession, knowingly and intentionally.
“The intent with which an act is done may be proven by direct and positive testimony, or the intent may be inferred from all the¡ facts and circumstances surrounding and attending the act, as shown by the evidence in the case, and any intent in this case must be determined by the evidence given in this case.”

Defendant argues that the above instruction is confusing, argumentative, assumed defendant had possession of the narcotics and that possession “was knowing;” that it incorrectly stated the requisite knowledge and intent, and shifted the burden of proof to defendant on this issue.

The instruction consists largely of abstract and cautionary statements to the jury. It argues no fact or issue, and assumes as established no fact. The instruction requires the jury in its determination to find “whether or not” the drug was in the possession of defendant by a permissive consideration of all the facts and circumstances in evidence. It is proper for the jury to be instructed to give such consideration. State v. Dalrymple, Mo., 270 S.W. 675, 679; State v. Gentry, 320 Mo. 389, 8 S.W.2d 20, 28; State v. Berezuk, 331 Mo. 626, 55 S.W.2d 949, 953.

Under Sec. 195.020, RSMo 1959, V.A. M.S., where the possession of the narcotic drug is the gravamen of the offense charged, it was proper for the court to charge that it was not necessary for the state to prove that defendant intended to make some other use of the drug, if the jury found he had it in his possession. The instruction does not shift the burden of proof. The statement, “It is sufficient for the State to show that the drug was in his possession knowingly and intentionally,” merely restates the submission as to the state’s burden on intent in Instruction 2, under which if the jury did not find that defendant had knowledge of the presence of the marijuana, it could not find a verdict of guilt. See State v. Scott, Mo., 333 S.W.2d 41, 46.

There is no error here by the inclusion ■of the word “custody” in Instruction 4. See discussion of the words “custody,” “control” and “possession” above.

Defendant has cited no case demonstrating any error in Instruction 4, and we find none.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    Harryetta BUTCHER (plaintiff) Appellant, v. Hiram H. MAIN, Jr., Olon E. O’Connor, and Madeline Mary Politte, (Defendants) Respondents.
    No. 49871.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.

      Sherman Landau, St. Louis, for appellant.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, for respondent Main.
    Murphy & Kortenhof, Joseph M. Korten-hof, St. Louis, for respondent, Olon E. O’Connor.
    Wilburn A. Duncan, Robert T. Ebert, St. Louis, for respondent Madeline Mary Po-litte.
   HOLMAN, Judge.

In this action plaintiff sought to recover damages for personal injuries in the sum of $27,500 from the defendants. At the close of plaintiff’s opening statement the defendants O’Connor and Politte moved for a directed verdict and their motions were sustained. Thereafter, a jury returned a verdict in favor of plaintiff and against defendant Main in the sum of $1,000. Plaintiff appealed and here contends (1) that the court erred in directing a verdict for defendants O’Connor and Politte, and (2) that the verdict is inadequate. We have jurisdiction because the amount in dispute in this instance is $26,500. Art. V, Sec. 3, Constitution of Mo., V.A.M.S.; Sec. 477.040 RSMo 1959, V.A.M.S.; Pinkston v. McClanahan, Mo.Sup., 350 S.W.2d 724.

The collision in question occurred at about 3:30 p. m. on June 18, 1960, on Highway 66 bypass in St. Louis County. This north-south highway has four traffic lanes, two for traffic proceeding in each direction. The sun was shining and the roadway was dry. Plaintiff and the three defendants were each operating northbound automobiles in the lane next to the center line. Miss Politte’s car was directly in front of plaintiff, and Mr. O’Connor was operating the car in front of Miss Politte. Mr. Main’s automobile was following plaintiff’s car. The collision occurred approximately 150 to 200 feet north of where the highway intersects Big Bend Boulevard. It appears from the transcript that defendant O’Connor brought his automobile to a sudden stop in the line of traffic in which all of these cars were traveling, and that Miss Politte’s car ran into the back of his car; that plaintiff stopped her car without striking the Politte car, but that Mr. Main’s car ran into the rear of plaintiff’s car and knocked it into the rear of the Politte car. Shortly thereafter, a patrolman had the parties remove the cars to a nearby parking area, took their statements, and then released each of the drivers.

Plaintiff testified that she was 49 years old at trial time, married, and the mother of two children; that she is a registered nurse and on the date of the collision was employed at the Veterans Administration Hospital at an annual salary of $5,020; that she had worked on Saturday, June 18, and was driving home on Highway 66; that when she passed through the intersection at Big Bend Boulevard she was going 15 miles per hour; that shortly thereafter she saw the brake lights go on on the car ahead and she made a gradual normal stop of her car, with the front end thereof about five or six feet behind that car; that the car of defendant Main which was following her then struck the rear of her car and knocked the front end of her car into the rear of Miss Politte’s car; that when her car was struck she was thrown against the steering wheel and then back against the seat of the car and “my neck was jerked”; that the front fender and bumper of her car were damaged but it was “drive-able” and she drove it home after the officer completed his investigation.

Plaintiff further testified that when she arrived home she went to bed, and on the next day, Sunday, called her doctor and -obtained some medicine to relieve her pain; that on Monday she went to Dr. McCall’s office for examination and treatment, and he had her get a Thomas collar; that Dr. McCall sent her to Dr. Merenda who took a number of X rays; that she continued to have pain in her neck and back, and shortly thereafter went to Dr. Goodman, a chiropractor, who gave her some treatments; that she returned to work on June 27, and continued to work regularly until April 15, 1961; that at the Veterans Hospital she received physical therapy treatments consisting of intermittent traction, ■diathermy and massage for three weeks. In December 1960 she went to Dr. Rosenberg who gave her supersonic sound wave treatments from which she obtained temporary relief; that at trial time she still had pain in her neck and shoulders, headaches, and a constant aching pain in the low back region which varied in intensity; that she ■quit work on April 14, 1961, but went back -on September 5 on a part-time basis (worked seven out of each fourteen days); that she quit work altogether on December 24, 1961, and had not worked from that date until the time of trial which was in October 1962.

Plaintiff’s husband, Allen Butcher, testified that since his wife’s injury she at times could not do many of the things she had previously done around the house; that she frequently complained of pain in her back and would apply heat in order to obtain relief; that she had not been able to bowl, or to ride for any prolonged period in an automobile, without discomfort. This witness also described the damage done to their car, but stated that except for the taillights the car was not repaired and was later traded in on another car.

Dr. Paul Rosenberg, an osteopath, testified that plaintiff came to his office on December 14, 1960, complaining of severe pain in her neck, and of headaches; that he examined the patient and took X rays and made a diagnosis of traumatic subluxation of the third and fourth lumbar vertebrae, and a traumatic subluxation of muscular tissue surrounding the cervical vertebrae; that he examined her again shortly before the trial and was of the opinion that she would have permanent intermittent pain in the cervical region.

Dr. E. L. McCall testified that he examined plaintiff on June 20 and found that she was suffering from a cervical sprain; that he prescribed a Thomas collar and traction (neck stretching) exercises; that he saw her again on October 7, 1960, and she seemed to be improved; that she came to his office again on November 10, 1960, and complained of low back pain which he attributed to inflammation of the back muscles. In answer to a hypothetical question this witness expressed the opinion that the injuries received by plaintiff in the collision were “causative factors in the woman’s complaints.”

Defendant Main’s evidence consisted of his personal testimony and the testimony of Dr. Ries who examined plaintiff for the defendant before trial. Mr. Main testified that on the day in question he was driving a station wagon, from 20 to 30 miles per hour, on Highway 66 bypass and as he crossed Big Bend his car was 100 feet behind plaintiff’s car. He stated that he heard skidding and flying glass ahead and that plaintiff suddenly slowed her car and he collided with it; that plaintiff’s automobile was still moving some at the time of the collision.

Dr. Ries testified that he was a physician specializing in general and traumatic surgery; that he examined plaintiff shortly before the trial and his examination disclosed no objective finding of abnormality which he could attribute to injury; that he examined certain X rays of defendant taken by Dr. Funsch and they disclosed no abnormalities; that he had found a mild narrowing between cervical vertebrae five and six, but that such would be found in most people over 40 years of age; that he had found no muscle spasm in the neck, and his examination had disclosed no objective reason why plaintiff could not perform her duties as a housewife or as a nurse.

We will first consider plaintiff’s contention that the court erred in directing a verdict for defendants O’Connor and Politte at the close of plaintiff’s opening statement. It is her theory that “the mere insufficiency of the opening statement to recite facts which would show that plaintiff’s anticipated evidence would, as a matter of law, present a submissible case, was not of itself standing alone sufficient justification to stop the case at that stage and direct a verdict for the two co-defendants.”

The portion of the opening statement these defendants say would preclude any recovery by plaintiff against them is as follows : “And at that point the lead automobile, which was operated by a Mr. O’Connor, made a very sudden and abrupt stop right in that lane directly in front of these other following northbound automobiles without any signal except that which was provided by the instantaneous flash by the stop signals at the rear, * * and Miss Politte’s car rammed into the back end of Mr. O’Connor’s car. Mrs. Butcher, coming along at the reduced rate of speed, had ample time to apply her brakes and come to a slow gradual stop at a point about five or six feet behind Miss Politte’s automobile, and she remained in that position for a period of about five to ten seconds according to her approximation, and all of a sudden she was struck violently in the rear with sufficient force to knock her automobile into the rear of Miss Politte’s automobile. * * * It developed that this rear car was operated by a Mr. Main.”

In our recent case of Hays v. Missouri Pac. R. Co., Mo.Sup., 304 S.W.2d 800, 803, 804, we considered a contention similar to plaintiff’s and stated that “[t]he primary purpose of an opening statement is not to test the sufficiency of plaintiff’s anticipated evidence, but is to inform the judge and the jury in a general way of the nature of the action so as to enable them to understand the case and to appreciate the significance of the evidence as it is presented. * * * Therefore, generally the opening statement is not expected to contain all or necessarily even a major part of a party’s case. * * By reason of these well accepted and basically sound principles, it is readily apparent that mere insufficiency of the opening statement to recite facts which show that plaintiff’s anticipated evidence would, as a matter of law, present a submissible case, is not of itself standing alone sufficient justification to stop the case at that stage and direct a verdict for the defendant.” However, “a trial court may direct a verdict in favor of the defendant on plaintiff’s opening statement * * * when counsel makes an admission in his opening statement which affirmatively demonstrates as a matter of law that his client has no cause of action or is not entitled to recover on his cause of action.”

Our general view is that courts should be very reluctant to direct a verdict at the close of plaintiff’s opening statement. It certainly should not be done because of the mere failure to state facts sufficient to constitute a submissible case unless counsel affirmatively admits that no additional facts will be shown by the evidence. A different situation is presented when the statement of counsel affirmatively discloses, as a matter of law, that plaintiff is not entitled to recover. However, the principal difficulty encountered in that situation is the determination as to whether the statement is an admission or is merely a recital of the facts counsel expects to prove. See Wasmer v. Missouri Pac. Ry. Co., 166 Mo.App. 215, 148 S.W. 155, Fillingham v. St. Louis Transit Co., 102 Mo.App 573, 77 S.W. 314, and Bayer v. American Mutual Casualty Co., Mo.Sup., 359 S.W.2d 748[5], [6].

We are convinced, however, that the trial court did not commit prejudicial error in directing the verdicts in the case at bar. In arriving at that conclusion we have considered the fact that plaintiff alleged in her petition that “she slackened the speed of her automobile in a gradual and normal manner for the purpose of bringing her automobile to a stop behind the two aforesaid automobiles which were stopped ahead of her on said highway” and that “after the speed of plaintiff’s automobile had been decreased substantially below normal operating speed in a gradual and normal manner, and had been brought to, a stop behind the automobile operated by defendant Madeline Mary Politte, plaintiff’s automobile was struck at the rear * * The quoted allegation in plaintiff’s petition, and the similar recital of her counsel in the opening statement, disclose a situation which would clearly bar her recovery. While it may be assumed that defendants O’Connor and Politte were negligent, it may be said as a matter of law that such negligence was not a proximate cause of plaintiff’s injuries. Since plaintiff was able to bring her car to a gradual normal stop without colliding with the car ahead, it is obvious that the efficient, intervening cause and the proximate cause of plaintiff’s injuries is the fact that defendant Main’s car collided with the rear end of plaintiff’s car. King v. Ellis, Mo.Sup., 359 S.W.2d 685; Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240. The factual situation heretofore discussed was unquestionably plaintiff’s theory of the case and she is bound by it. As indicated, she alleged those facts in her petition, her counsel stated them in his opening statement, and plaintiff later testified to that precise state of facts in the trial. In that situation, as previously stated, the court did not prejudicially err in directing the verdicts in question.

Plaintiff does not contend, merely because of the amount thereof, that the verdict was so inadequate that a new trial should be granted. Instead, she argues that she received an inadequate verdict as the result of certain trial errors.. It is first said that the error in directing a verdict in favor of two of the defendants adversely affected the size of the verdict. Since we have held that the court did not err in that respect we need not further consider this contention.

The next, alleged trial error is the contention that the court permitted defendant’s counsel to argue foreign issues relating to damages. That contention is based upon the following: “By Mr. Fitz-simmons : And I might say this, too. What are you to consider if you do get to that issue of the amount of her damages ? There is nothing that you consider about damages to her automobile, there is nothing to consider about any medical bills, there is nothing to consider about any claim her husband w.ould have. Those are all secondary questions and may be the result of a secondary — another lawsuit. Mr. Landau: If the court please, I object to that. May I make a record? The Court: Yes, sir. (Thereupon, the following proceedings were had out of the hearing of the jury at the bench.) Mr. Landau: I object to the reference to the husband’s cause of action as injecting a false issue into this case, and I object to the reference to medical bills as injecting a false issue into this case. There has been no evidence as to either of those factors before this jury at any time and the injection of those misleading alleged factors are prejudicial to plaintiff and we ask for a mistrial and a discharge of the jury. The Court: Overruled.”

It is true, as plaintiff says, that she did not seek a recovery in her petition for damages to the car or for medical expenses, and, her husband could not recover for her loss of service because he was not made a party to this action. However, we note that there was considerable testimony concerning the damage to the car (admitted apparently on the theory that it tended to prove the violent nature of the collision), and plaintiffs husband testified concerning the inability of plaintiff to do many household duties. In that circumstance, the jurors might have thought that those items should be considered in determining damages, and it is not unreasonable for defendant’s counsel to contend that the jury should have been told that such were not proper elements of damage. See O’Brien v. City of St. Louis, Mo.Sup., 355 S.W.2d 904[6]. In any event, however, it is well established that the trial judge should be allowed large discretion in permitting or restraining argument and his ruling will generally be deferred to on appeal. Satterfield v. Southern Ry. Co., Mo.App., 287 S.W.2d 395. We rule that the trial court did not abuse its discretion in overruling the foregoing 'obj ection.

Plaintiff testified that the reason she resigned from her employment on April 15, 1961, and again on December 24, 1961, was that “being on my feet too much * * * seemed to aggravate the symptoms I had had.” She also stated that “the reason I left, and the reason given, are different because you do not want a medical disability against your record.” On cross-examination she admitted that the reason she gave to the Veterans Administration Hospital on each occasion was “personal responsibilities at home becoming too great pressure to carry on with ease full time job outside of the home.” In that regard she further testified to the following: “A. That’s on the records both times that I resigned from the V. A. administration. Q. Did I understand you to tell the jury why you put that on the federal records that wasn’t your real reason for resigning? A. For any reason for resigning, if you have a medical defect— Q. Well, if I may ask, was that the real reason for resigning that you put there? Mr. Landau: I object to the interruption of the witness and ask that she be permitted to complete her answer. The Court: It wasn’t responsive. A. Would you please restate your question. Q. (by Mr. Fitzsimmons): ‘ So far as the records at the Jefferson Barracks Veterans Administration Hospital what I read to you there, 'personal responsibilities at home becoming too great pressure to carry on with ease full time job outside of the home,’ is that whát is on the official federal records of this hospital? Mr. Landau: I object to that for the reason that the records themselves would be the best evidence of their contents. * * * The Court: Well, this is cross-examination. I am overruling the objection. A. That is on the records.”

Plaintiff’s counsel contends that the court erred in not sustaining his objection to the interruption of plaintiff and that she was thus denied the right of explaining her reason for not giving her employer her real reason for resigning. Since plaintiff fully explained, on direct examination, the reason she did not give the hospital her real reason for resigning, we are of the opinion that the ruling complained of would not constitute prejudicial error.

Just prior to resting plaintiff’s case her counsel announced that he desired to recall plaintiff for further direct examination. The court sustained an objection to his being permitted to do so. Counsel made no offer as to what he proposed to prove by such further testimony. He now says in the brief that he desired to have plaintiff explain her reason for giving an incorrect reason to the hospital for her resignations. Since, as heretofore stated, she had already given that explanation on direct examination, and since counsel made no offer of proof at the time, we rule that no prejudicial or reversible error occurred.

The final contention of error, which plaintiff says adversely affected the amount of her verdict, occurred during the argument of her counsel, as shown by the following : “Mr. Landau: She lost a total of over $8,000.00. Mr. Fitzsimmons: I object. I don’t think there is any evidence at all of what her lost wages were and I ask the jury be instructed to disregard that. The Court: Objection sustained. The jury is so instructed to disregard it.” We think the objection and ruling indicate that counsel for defendant and the court had in mind that no witness had made any mathematical calculation as to any amount of wages plaintiff had lost. No witness had made any such calculation.

In the damage instruction plaintiff was permitted to recover for loss of earnings and there was evidence to support some recovery upon that element of damages. However, there is no evidence that would have warranted a recovery for any amount approximating the sum of $8,000 in lost earnings at trial time. Plaintiff lost seven days’ work immediately following the collision. Thereafter, she worked regularly for almost ten months. Her explanation of the reason she resigned was that she was on her feet too much “and that seemed to aggravate the symptoms she had had.” That testimony is not sufficient to support a recovery of a sum equal to what her full wages would have been following her resignations. She did not say she could not continue to work. The fact she had worked for ten months would indicate she could. The most favorable view of that evidence is that working caused her to suffer some pain and discomfort. Moreover, even if we should assume that she was entitled to recover all wages lost the amount thereof would not have exceeded $6,700.

In view of the foregoing we have concluded that the trial court did not commit prejudicial error in sustaining the objection to the statement heretofore quoted.

We have determined that none of the alleged trial errors complained of by plaintiff affected the verdict adversely to her. It would therefore seem apparent that the jury did not believe the evidence offered by plaintiff relating to the extent of her injuries and disability, but chose to accept the testimony of defendant’s expert who found no objective condition which would disable plaintiff in her work, either as a housewife or as a nurse. That was the prerogative of the jury, as it is its duty in a case of this kind to determine the fact issues and assess the amount of the damages.

The judgment is affirmed.

All concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    Irene CAEN, Administratrix of the Estate of Herbert Grisbeck, Deceased, Appellant, v. Roger FELD, Respondent.
    No. 49637.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.
    Opinion Modified and Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 14, 1963.

      Sherman Landau, St. Louis, for appellant.
    Fred B. Whalen, Warren Grauel, Whalen, O’Connor, Grauel & Sarkisian, St. Louis, for respondent.
   STOCKARD, Commissioner.

This action for $25,000 compensatory damages was instituted by Irene Caen, administratrix, for the wrongful death of Herbert Grisbeck who met his death on September 25, 1960 as the result of being struck by the automobile of Roger Feld. Judgment was entered pursuant to jury verdict in the amount of $500. Plaintiff has appealed and asserts that she is entitled to a new trial on the issue of damages because the verdict is grossly inadequate, and because the court erred in refusing to admit evidence of funeral expenses. The difference between the sum claimed and sued for and the sum recovered upon the trial exceeds $15,000 and for that reason jurisdiction of this appeal is in this court. Davidson v. Schneider, Mo., 349 S.W.2d 908, 909; Pinkston v. McClanahan, Mo., 350 S.W.2d 724.

Herbert Grisbeck, who was at least 82 and may have been 84 years of age, left surviving him as his next of kin two adult daughters, Irene Caen who lived in Normandy, Missouri, and Loretta Brewster, a resident of the State of California. During the trial plaintiff offered evidence that the funeral expense for the burial of Herbert Grisbeck was $956.30, and that this amount had been paid by Irene Caen and Loretta Brewster. Defendant objected to this evidence on the ground that the beneficiaries “did not have a legal obligation” to pay the funeral expenses and the evidence was excluded.

Section 537.090 (all statutory references are to RSMo 1959, V.A.M.S.) provides that the jury may give to the party or parties who may be entitled to sue “such damages, not exceeding twenty-five thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, * * Although the person entitled to sue in this case is the administratrix of the estate of Herbert Grisbeck, she is a statutory trustee to maintain the action for the beneficiaries described in paragraph (4) of Section 537.-080, Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504, 506; Troll v. Laclede Gaslight Co., 182 Mo.App. 600, 169 S.W. 337, and it is as to those beneficiaries that the “loss thus occasioned” and the “necessary injury resulting from such death” is to be measured. The compensatory damages for wrongful death “must be limited to the pecuniary loss,” but it is the “legislative intent * * * to give the jury a broad discretion in computing damages for wrongful death, within the limit prescribed, based upon the pecuniary loss of every kind and character which, under all the circumstances of the particular case would necessarily result from the death, to those entitled to recover * * Patison v. Campbell, Mo., 337 S.W.2d 72, 75. The determinative question is whether under the particular circumstances of this case the funeral expenses incurred and paid by Irene Caen and Loretta Brewster constitute a pecuniary loss.

As early as 1873 in a suit by a parent for the wrongful death of a minor child it was held that funeral expenses “must, if any thing can, be one of the most obvious and necessary injuries resulting from death.”Owen v. Brockschmidt, 54 Mo. 285. See also Rains v. St. Louis, I. M. & S. Ry. Co., 71 Mo. 164, 36 Am.Rep. 459, and Hildreth v. Key, Mo.App., 341 S.W.2d 601. In Wilt v. Moody, Mo., 254 S.W.2d 15, funeral expense as an element of damages was not an issue, but it was held that medical expenses of a deceased wife may be proved as an element of damages in a suit by the husband for wrongful death when the expenses resulted from the wrongful act of defendant which caused the death. However, in McCullough v. W. H. Powell Lumber Co., 205 Mo.App. 15, 216 S.W. 803, suit for wrongful death was brought by the administrator of an adult on behalf of the deceased’s parents and brothers and sisters, and it was there said: “Defendant also challenges the competency of evidence as to medical and funeral expenses, and also for expenses incurred at a hotel, where deceased was taken in an effort to relieve him, and save him, if possible. It has been held a number of times in this state that such expenses are recoverable * * * where there was a legal obligation to furnish such aid, and to incur such expenses. [Citing cases]. But we find no authority to support the contention that such expenses are elements of damage in the situation here. There was no legal obligation on the part of any of the beneficiaries named in plaintiff’s petition to furnish medical aid, or to incur expenses for the funeral. In Hickman v. Railway Company [22 Mo.App. 344], it is said that the natural duty of the child to the parent has been from an early period in the history of the world an object of statutory solicitude, but that in the absence of legislation the distinction between the natural and the legal duty remains. * * * We hold that evidence of medical and other expenses incurred in treating deceased, and funeral expenses, are not proper elements of damage under the facts here.” (Italics added). Later, in Miller v. Williams, Mo., 76 S.W.2d 355, a suit by an administratrix for the wrongful death of an adult who • left surviving him two adult daughters, it was said, citing the McCullough case, that it was not error to exclude evidence “tending to show funeral expenses” because the “beneficiaries were under no legal obligation to pay said expenses." (Italics added). It is obvious that these two cases purport to set forth different rules whether or not it was done intentionally. Even though there be no “legal obligation * * * to incur expenses for the funeral,” as stated in the McCullough case, the beneficiaries may as hereafter noted, incur a “legal obligation to pay said expenses.”

There were no assets in the estate of Herbert Grisbeck. The only asset listed in the probate proceedings was the claim upon which this suit was based, which in fact was not an asset of the estate because such sum that may be recovered does not become a part of the general assets of the estate subject to the claims of creditors, but it is for the exclusive benefit of the persons designated by the wrongful death statute as beneficiaries. Demattei v. Missouri-Kansas-Texas R. Co., supra; Troll v. Laclede Gaslight Co., supra. Other than personal effects, which had no value, the deceased had no real or personal property whatever. His only certain income prior to his death had been approximately $62 per month from social security. If his two adult daughters, or some other relative or friend had not exercised the right to provide burial for him he necessarily would have been buried at public expense as a pauper, see Sections 58.460 and 194.150, or his body would have been made available to an educational institution pursuant to Section 194.150. By reason of the wrongful act of defendant in causing the death of Herbert Grisbeck, Irene Caen and Loretta Brewster were faced with the choice of permitting their father to be buried as a pauper at public expense or permitting his body to be turned over to an educational institution, or in the alternative, to incur the legal obligation to pay the expense of providing a decent burial for him. This obligation would result either by reason of an enforceable contract between them and some undertaking establishment to provide burial, or pursuant to Section 194.150 in order to obtain possession of the body-to provide burial for it. There is no question but that in this case the deceased’s daughters had the right of burial of their father, and it has been said that the “duty of burial and the right of burial are concomitant so that the duty of burial has been held to rest on the person in whom the right resides.” 25 C.J.S. Dead Bodies §§ 3 and 5. It may be true that this duty is not a “legal” one in the strict sense of the word, but it is based on public interest, and the motivating influences on the part of children arising from this moral or natural duty, in all but the rarest of cases, to provide a decent burial for a parent would be at least as impelling as when based alone on a strict legal duty. We think the harsh rule announced in the McCullough case is unrealistic when applied to the particular factual situation of this case. By the performance of their moral or natural duty, Irene Caen and Loretta Brewster, as next of kin of the deceased, incurred the “legal obligation to pay [the funeral] expenses” of their father, and that unquestionably resulted in “pecuniary loss” which “would necessarily result from the death, to those entitled to recover.” Patison v. Campbell, supra.

We conclude that when one or more of the beneficiaries named in paragraph (4) of Section 537.080 incurs a legal liability for funeral expenses to avoid or prevent the burial of the deceased at public expense as a pauper, or to prevent the consignment of his body to a medical institution, those expenses in a reasonable amount constitute an element of damages in a suit for wrongful death on the basis that they constitute a pecuniary loss within the meaning of the wrongful death statute. Under the specific facts of this case the evidence of funeral expenses in a reasonable amount was erroneously excluded.

We need not rule on the contention that the verdict was grossly inadequate. The verdict was for $500, and while it fairly can be said that the evidence hardly supports that verdict without taking into consideration the funeral expenses, those expenses were $956.30.

Plaintiff has requested that a new trial be ordered on the issue of damages alone. However, in our discretion we deny that request and order a new trial of the whole case. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 729. The evidence on the issue of liability was close, or at least it was not free from doubt, and plaintiff has asserted on this appeal that the verdict was “the result of passion, prejudice and misconduct.” If such error has tainted part of a verdict, as plaintiff contends it has, then regardless of in whose favor tainting occurred, the whole verdict should be set aside and not just part of it. In view of the whole record and all the circumstances we conclude that liability and damages should be reconsidered together. The judgment is, therefore, reversed and the cause remanded for new trial.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.

On Motion to Modify Opinion

PER CURIAM.

Defendant has filed a motion to modify the principal opinion by setting aside the order of reversal and remand for a new trial and enter a judgment in favor of plaintiff and against defendant in the amount of $1,-456.30, which is the sum of the $500 verdict and the amount of the funeral expenses. In view of the McCullough and Miller cases, cited in the principal opinion and relied on by defendant, we consider this proposal not to be untimely. However, plaintiff contended that even though evidence of the funeral expenses were properly excluded the verdict in the amount of $500 was grossly inadequate and the result of passion, prejudice and misconduct on the part of the jury. We did not rule that contention in the principal opinion, but we did Comment that “it fairly can be said that the evidence hardly supports that verdict without taking into consideration the funeral expenses.” Before we may consider whether the requested modification should be made, we must first determine whether, except for the item of funeral expenses, a verdict of $500 would require a new trial in any event.

Plaintiff attempts to argue that the verdict resulted from the admission of certain evidence, but no point in the brief is directed to the erroneous admission of evidence. The real and only contention to be considered is whether a verdict of $500 is so grossly inadequate that it demonstrates passion, prejudice and misconduct on the part of the jury, and it obviously does not. The deceased had no income except $62 a month from social security. Plaintiff attempted to show that he had an income from betting on horse races, but the evidence does no more than create a suspicion of any income from that source. However, regardless of the amount of the income of the deceased, his two adult daughters lived separately from their father, one residing in the State of California, and there is no evidence of any regular contribution by the deceased to either daughter. At most the evidence shows that he occasionally left with one of his daughters small gifts of money, totaling no more than $30 a year, which the daughter said she refused but which he left without her knowledge. He also gave the daughter in California a gift at Christmas and for her birthday. We have no hesitancy whatever in ruling that the verdict, on the basis it was rendered, was not so inadequate to require a new trial. See Patison v. Campbell, Mo., 337 S.W.2d 72.

We have this result. On the issues which were submitted to the jury, the case was fully tried and no error occurred as to those issues. The only issue not submitted to the jury and therefore not considered by it was the funeral expense, a liquidated element of damages in the admitted amount of $956.30, and as to which there is no issue as to reasonableness. Upon a new trial the jury could not award more than $956.30 for funeral expenses, and as to every other element of damages in the case the jury has determined the amount to be $500. Defendant expressly offers to have judgment rendered against him in the amount of $1,456.-30 consisting of the $500, which was determined by the jury to constitute all the damages to which plaintiff is entitled except for funeral expenses, and $956.30, the maximum amount the jury could award for the funeral expenses. If this is done plaintiff has no basis for complaint because she is getting everything the jury determined she was entitled to receive, other than the funeral expenses, and in addition she is receiving everything to which she claims she is entitled for the funeral expenses. Defendant is not prejudiced because it is at his request that this action would be taken. The resulting question is, whether this court has the authority to enter the requested judgment, and if so, whether it should do so.

Civil Rule 83.13(c), V.A.M.R. expressly provides that an appellate court shall, subject to the limitations there set forth, “award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law. Unless justice requires otherwise, the court shall dispose finally of the case on appeal- and no new trial shall be ordered as to issues-in which no error appears.” In Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 1156, 105 A.L.R. 1063, a suit on several notes, this court held “that where * * * the plaintiff is entitled to a directed verdict and there is no controversy as to the amount,, and the contract sued on calls for interest at a stated rate for a certain time, so that the ascertainment of the amount of interest is only a matter of mathematical computation, it is not error for the court to make the calculation and direct a verdict for the total amount due, including the interest.”' This case was followed in Wheeler v. Cantwell, Mo.App., 140 S.W.2d 744. There the jury found for the plaintiff in the sum of $258.67, when in fact there was due plaintiff the sum of $313.34. It was held that “Since, under the facts in this case .as it comes to us, the amount which plaintiff is entitled to recover is a mere matter of calculation, it follows that we may calculate the amount due and direct an entry of judgment accordingly.” In this case the jury found for plaintiff on the issue of liability, and for that reason, in the absence of error in the trial on that issue, the case stands before us on the same basis as though plaintiff was entitled to a directed verdict on that issue. As-to damages, the jury has determined that for every element plaintiff contends it should consider, except funeral expenses, plaintiff is entitled to $500, and on the trial of those issues no error occurred. We have determined, on appeal, that as a matter of law plaintiff is entitled to recover funeral expenses, and as to the amount of those funeral expenses there is no controversy between the parties. Therefore, we conclude that pursuant to the authority of this court set forth in Civil Rule 83.13(c), V.A.M.R., this court has the authority to modify its principal opinion in the manner requested. See Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565, where it was said: “We are fully persuaded that the court below erroneously excluded the proven items of doctors’ bills, medicine, and hospital services, from the consideration of the jury; that the amount of these items had been clearly and definitely established by the evidence; and the court, with the consent of the defendant, had the power to increase the judgment by the aggregate amount, in dollars and cents, of the excluded items * *. In this action of the court there was no error, and certainly none prejudicial to the plaintiff.” See also Hudson Rug Refinishing & Cleaning Corp. v. Prime Mfg. Co., 7 Cir., 115 F.2d 615, where an item of damages was erroneously not submitted to the jury, but the defendant stipulated that the amount was not in controversy, and it was held that the amount of this item was properly included by the court in its judgment. Other cases in which the action here taken is approved are Shirley v. Merritt, 147 Colo. 301, 364 P.2d 192; Gaspero v. Gentile, 160 Pa.Super. 276, 50 A.2d 754; Osterling v. Allegheny County, 272 Pa. 458, 116 A. 385; Warner Const. Co. v. Lincoln Park, 278 Ill.App. 42. See also 5B C.J.S. Appeal and Error § 1883, p. 344, and the cases cited in the annotation at 56 A.L.R.2d 270-272.

This action is not intended to and does not constitute any authority or precedent at the trial or appellate level for the addition to a judgment of a sum for unliquidated damages, or when there is any controversy as to the amount. In those cases the jury must determine the amount, if any, within the permissible limits, to which the plaintiff is entitled.

Defendant’s motion for a rehearing or to transfer this case to the court en banc is overruled. The principal opinion is modified to provide that the judgment is reversed and the cause is remanded to the trial court with directions that if within fifteen days from the date of this per curiam defendant files in that court his written consent for judgment to be entered against him and in favor of plaintiff in the amount of $1,456.30, as of March 23, 1962, the date of the judgment from which this appeal was taken, a judgment in that amount in favor of plaintiff and against defendant be entered; otherwise the judgment stands reversed and remanded for a new trial on all issues.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Jack Gene WITT, Appellant.
    No. 49897.
    Supreme Court of Missouri. Division No. 2.
    Oct. 14, 1963.

      Scott R. Traylor, Paul R. Coffman, Springfield, for appellant.
    Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

Defendant was found guilty by a jury of the offenses of second degree bur'glary and stealing; the court found that he had been convicted of a prior felony and, ■after overruling his motion for new trial, ■sentenced him to four years’ imprisonment for each offense, the sentences to run con■currently. This appeal followed. No brief has been filed here for the defendant, so we consider all sufficient assignments of his motion for new trial.

The essential facts are simple; the complications arise largely on questions of the ••admissibility of exhibits. Maynard Moore ■operated the L & M Service Station in 'Springfield. During his absence for a few ■days in January 1962, the station had been ’left in charge of Robert Rupe and Ralph White. Various brands of cigarettes were kept for sale in the station, as was also Pepsi-Cola in a vending machine. No inventory of the cigarettes was kept. The ■station was closed and locked at about 8:30 p.m. on January 5, 1962; shortly before the closing Rupe had changed a tire, using a “spoon type” tire tool which belonged to Moore and was kept in the station. Everything was in order when the station was closed. White arrived there about 7:00 o’clock on the morning of January 6, and found the glass in the front door broken, the other door standing open, and the Pepsi-Cola machine “broken open” with its door “messed up.” The spoon-type tire tool was gone, and the coin tray on the telephone was bent but it had not been entered.

Early on January 6, 1962, at approximately 4:15 a. m., Officer Jack Rushin of the Springfield Police Department observed a 1951 Ford being driven erratically and started following it; he checked the license number on his radio, was told that it ■checked out to Jack Witt, and was further told over the radio by Officer Charles Upp that he wanted to talk to Witt about a theft from a cafe; this latter message arrived about the time Rushin stopped defendant’s ■car or almost immediately thereafter. Upp came out immediately and he and Rushin together searched defendant’s car. In a hearing outside the presence of the jury dt was disclosed that they found under the front seat two tire tools (including a “spoon type” tool), “a ball bat and a Jap sword,” and a carton of Winston cigarettes; on the floor they found a loaded revolver; in the glove compartment six packs of cigarettes and a pint bottle of whisky “almost consumed.” At the police station they found under the mat in the trunk about $14 in small coins wrapped in a “shop towel” or “grease rag”; these two designations seem to have been used interchangeably. The trial court ruled that no reference should be made to the liquor or pistol during the trial and none was made. At the time of the search no report had been made of the filling station burglary. Officer Upp testified briefly at this hearing concerning a report of the looting of certain coin machines in a cafe, and of his reason to suspect this defendant. The tire tools and the shop towel with its contents were identified, offered and received in evidence at the trial as having been thus found in defendant’s car. Defendant denied to the police all knowledge of these articles.

Officer Rushin testified (before the jury) : that defendant’s car was “weaving”; that he placed defendant under arrest when he stopped him “or shortly thereafter”; that his first reason for stopping the defendant was “possible intoxicated driving” or a suspicion of “drunken driving.” The substance of the testimony of both officers is that at approximately the time Rushin stopped the defendant and placed him in the patrol car he got the call that defendant was a burglary or stealing suspect and thereupon held him there for Officer Upp. The arrest and this report came so close together as to constitute, actually, a single act. Officer Upp testified that he directed Rushin to place defendant under arrest “out there where he had him stopped.”

It was developed further that the end of the straight tire tool or jack handle found in defendant’s car fitted the “pry mark” in the door of the Pepsi-Cola machine. The Police Technician testified that from microscopic examination of these two articles he found evidence of metal and paint specimens on the tire tool which indicated that it had been used in prying the door of the machine and that, in his opinion, it was so used. He also testified that the aluminum specimens which he thus found were different from the aluminum in hub caps. Maynard Moore definitely identified the spoon-type tire tool introduced in evidence as the one from his station, referring to specific beaten places and a mark over a letter “e,” all despite a vigorous cross-examination.

The defendant did not testify. Evidence was adduced on his behalf of the following substance: that spoon-type tools were in common use and that they often show hammer marks; that there was no attempt to make casts of some tire tracks in light snow outside the L & M filling station on the morning of January 6, 1962; that the spoon-type tire tool was one which had been in the car of defendant’s brother which car defendant took over on the brother’s death, and later traded for the 19S1 Ford; that defendant’s father (who gave this latter testimony) had used the tool several times; that the straight tire tool or jack handle was from the father’s jack; that defendant often let relatives and friends drive his car.

The sufficiently raised assignments of error (allowing defendant the benefit of some doubt) are, essentially: (a) that the court erred in refusing “to suppress the evidence taken from” defendant’s car in the search; (b) that the court erred in permitting testimony concerning certain of the exhibits before they were introduced in evidence; (c) that the testimony of the police officers at this (second) trial was substantially different from that given at the first trial; (d) that the court erred in permitting testimony concerning items taken from defendant’s car when they were not charged in the information as having been stolen, and also erred in admitting such articles in evidence; (e) that the court erred in finding that defendant was a “habitual criminal.”

Points (b) and (c) may be disposed of very quickly. The court had the discretion to permit testimony (largely by way of identification and a showing of the circumstances) concerning certain or all of these articles in order to connect them up properly, and prior to their actual admission. No possible prejudice resulted because all the articles so questioned were later offered and received in evidence. There is nothing substantial to point (c), on its very face; any supposed differences in the testimony of witnesses as between a first and second trial go merely to the weight of their testimony, with the right accorded to develop that fact, if true, on cross-examination,

Defendant’s counsel moved orally to suppress the evidence of the articles taken in the search “on the ground it was taken without a proper search warrant. And on testimony he agreed to the search.” Counsel did not add the objection that the search was not made in connection with a lawful arrest, but we prefer to consider the question on its merits, for that contention appears to have run through the case. Here Rushin had an entirely lawful reason for following defendant’s car and for stopping it; defendant was “weaving” along the city streets at 4:15 a. m. It is a little difficult to tell at what precise moment the arrest was made, but the stopping of defendant’s car, an apparently brief conversation, and the radio message from Officer Upp (to hold defendant on suspicion of burglary) were all substantially concurrent. It fairly appears that defendant was actually and formally arrested for the latter reason, although he may have been held temporarily on suspicion of drunken driving. Officer Upp who had the information about the prior suspected crime arrived before any search of the car was made and participated in it. Police officers are authorized to arrest upon reasonable cause to suspect that one is guilty of a felony, either upon their own knowledge or upon facts “communicated to them by others * * State v. Brown, Mo., 291 S.W.2d 615; State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W. 2d 441. If police officers could not thus base the existence of reasonable cause upon bona fide information communicated to them in the performance of their duties, their hands would be very effectively tied. Having made a legal arrest, the officers undoubtedly had the right to search the car. Brown, Green, Edwards, supra. We hold that the arrest and the search were legal, •and that the motion to suppress was properly overruled.

Point (d), variously stated in the ■motion, essentially involves the admissibility of the articles taken from defendant’s car, and of testimony concerning them. The physical exhibits (with one exception) were all identified as coming from defendant’s car and to that extent no question is raised. The exception was the door from the Pepsi-Cola machine and it was identified as such by the police officer who removed it. The basic reason given for objections to the admission of these exhibits is that they were not things charged in the information to have been stolen, since the information only charged the actual theft of one “steel spoon type automobile tire tool * * ⅜.” The State has attempted in its brief to convince us that the words “goods, merchandise and other valuable things * * * constitute a charge of the theft of other articles; this argument is a distortion of the language of the indictment, and wholly fruitless. Those words were used in connection with the charge of an intent, namely, with intent to steal such goods, etc., whereas the actual charge of stealing clearly involves only the tire tool. However, the admissibility of these exhibits does not depend upon those facts. The questioned articles were and are: the straight tire tool or jack handle, the shop towel and coins, the door from the Pepsi-Cola machine, and the cigarettes. The tool, towel and coins and the door were received in evidence; there was only testimony concerning the finding of the cigarettes. Although the objections made were somewhat “sketchy,” we consider the basic admissibility of this evidence. Counsel did specifically object that there was no evidence that the shop towel or grease rag was taken from the station and that the owner was unable to identify it. That is true, but he did testify that he used regularly (from a supply service) grease rags with the same markings or initials; we consider this identification as sufficient to support the admissibility, for all identifications cannot and need not be wholly unqualified. State v. Johnson, Mo., 286 S.W.2d 787; State v. Romprey, Mo., 339 S.W.2d 746.

The essential question is whether these articles found in defendant’s car, and the door of the Pepsi-Cola machine used for comparison, were and are sufficiently relevant to the charge against defendant as to be properly admissible. In other words, do they tend to connect the defendant with this crime? In State v. Russell, Mo., 324 S.W.2d 727, loc. cit. 731, the court said: “Defendant also contends that the court erred in admitting into evidence the crowbar and the gloves found in the Dodge car for the reason that (1) they were not shown to be the property or in possession of defendant or to have been used in the commission of the crime, and (2) they did not tend to prove the crime of burglary or stealing and were prejudicial and tend to prove him guilty of a crime for which he was not on trial. Gloves and crowbars are generally known to be common tools of burglars and thieves. In this connection it is worthy of note that the lock on the door of the tavern had been ‘jimmied’. The gloves would prevent the imprint of the fingers of those participating in the burglary and theft; the crowbar was adaptable to the ‘jimmying’ of the lock; all were found in the Dodge car in close proximity to the stolen safe. These facts were a circumstance for the consideration of the jury and were admissible. State v. Davis, 80 Mo. 53.” On facts rather similar to ours, see State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 141. In general, articles which fairly tend to connect the defendant with the crime charged are admissible, whether found at the scene of the crime or in defendant’s possession. See, generally: State v. Washington, Mo., 335 S.W.2d 23; State v. Swinburne, Mo., 324 S.W.2d 746; State v. Casey, Mo., 338 S.W.2d 888; State v. Lindner, Mo., 282 S.W.2d 547; State v. Gerberding, Mo., 272 S.W.2d 230; State v. Martin, 349 Mo. 639, 162 S.W.2d 847; State v. Wynne, 353 Mo. 276, 182 S.W.2d 294. When exhibits meet that qualification, they need not be referred to in the charge as made; they are merely evidence, tending to prove defendant’s guilt. We have no doubt here that all of the articles in question were admissible. The lug wrench was specifically connected with the prying open of the Pepsi-Cola machine and, being found in defendant’s car, it had a direct tendency to connect him with the crime. The door itself was admissible as a link in that chain. The shop towel or rag bore an identification similar to that appearing on Moore’s towels; the Pepsi-Cola machine had been broken open and the jury might infer that coins were taken from it. The fact that three pennies were in the towel along with nickels, dimes and quarters, whereas that machine supposedly did not use pennies, is a matter going to the weight of the evidence. The presence in the car of cigarettes of types carried for sale by the filling station, both in a carton and in loose packages, was a matter sufficiently relevant to justify the admission of the testimony, despite the argument that cigarettes are “homogeneous” and not subject to specific identification. We note in that connection that the full carton was found under the front seat of the car, a somewhat unusual place to carry cigarettes. We hold that none of this evidence was improperly admitted.

We note here that although the testimony indicated that the used spoon-type tire tool was not worth more than a dollar or a dollar and a half, the actual value is immaterial if the article was stolen in the commission of a burglary. Section 560.110, RSMo 1959 (Pocket Parts V.A.M.S.).

Defendant raises, as his final point, the assignment that the court erred in finding him to be “a habitual criminal.” For the present governing statute see § 556.-280, RSMo 1959 (Amended Laws 1959). It is apparent that the point intended to be made arises from these circumstances: a,fter a showing of the conviction in Greene County of “Jack Witt” on August 30, 1960, of “Grand Stealing” with a sentence of two years, objection was made to the record of the Missouri State Penitentiary offered under the name of “Jackie Dean Witt.” Thereupon, a Deputy Sheriff of Greene County testified that he knew the defendant, that he took him to the penitentiary and that he took no other Jack Witt, or Jack Gene Witt or Jackie Dean Witt there. The objections made at the trial indicate-that the only point raised lay in the difference in the middle names, as recorded. The penitentiary record was received in evidence and the court examined it. After the jury’s finding of guilty, the overruling of defendant’s motion, and the granting of allocution, the court imposed its two concurrent sentences of four years each. Generally, a middle name has little, if any, legal significance. State v. Hands, Mo., 260 S.W.2d 14, 18; Keaton v. Jorndt, 220 Mo. 117, 119 S.W. 629, 633; and see, generally, State v. Baugh, Banc, Mo., 323 S.W.2d 685. Here “Gene” and “Dean” sound sufficiently alike to permit an inference of a mistake. But we need not so speculate; the Deputy Sheriff testified that he took this defendant to the penitentiary and, if further identity was necessary, that testimony supplied it. Without suggesting in any way that defendant himself should have taken the stand, he certainly could have produced other evidence to refute this charge if, in fact, he was not the person so sentenced and confined.

We find those matters of record which we are required to examine under Rule 28.02, V.A.M.R. to be sufficient; and, finding no reversible error, the judgment is. affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Bill WORLEY, Appellant.
    No. 49820.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.
    No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Julian L. O’Malley, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Judge.

This proceeding was instituted by the defendant, a prisoner in the Missouri State Penitentiary, under the provisions of Supreme Court Rule 27.26, V.A.M.R., by the filing of a motion to set aside a judgment and sentence wherein he had been adjudged •guilty of burglary in the second degree and stealing. The court in the original trial had found, as charged, that defendant had been previously convicted of a felony. Defendant’s punishment was fixed by the court at ten years’ imprisonment on the charge of burglary and five years for the crime of stealing, the sentences to run concurrently. Upon appeal to this court the judgment was affirmed. State v. Worley, Mo.Sup., 353 S.W.2d 589.

The trial court overruled the motion to vacate, without granting a hearing thereon, upon a finding that the record disclosed that the defendant was not entitled to any relief. Defendant has duly appealed from that order and judgment.

A number of assignments in defendant’s pro se motion contend that the court erred in the admission of various items of evidence during the trial. Assignments of that nature may not be considered in a proceeding under Rule 27.26. We have said that “ ‘Rule 27.26 affords a prisoner a convenient means for a direct attack on the judgment of conviction by motion in the original proceeding. The attack is governed by the general principles applicable to ha-beas corpus proceedings within the grounds specified in Rule 27.26, which lie only where the sentence is void or otherwise subject to collateral attack,’ State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806. We have also said that ‘[a] motion under Rule 27.-26 may not be used as a substitute for a motion for new trial (State v. Cerny, Mo.Sup., 286 S.W.2d 804) nor function as an appeal.’ State v. Hagedorn, Mo.Sup., 305 S.W.2d 700, 702. * * * Rule 27.26 does not afford a basis for the review of trial errors * * State v. Childers, Mo.Sup., 328 S.W.2d 43, 44, 45.

Another assignment alleges that the motion should be sustained because defendant was held several days after his arrest without a warrant being issued, in violation of S. C. Rule 21.14, V.A.M.R. He does not complain of his treatment during that time and we note that no confession was offered at the trial. We see no connection between the alleged violation of Rule 21.14 and defendant’s conviction. It is unnecessary for us to state what remedy was available to defendant because of the alleged violation of said rule. It is sufficient for the purposes of this appeal to rule that the alleged violation of Rule 21.14 would certainly constitute no basis in this proceeding for a collateral attack upon the judgment of conviction.

The remaining contention in the motion is that the judgment should be vacated because defendant was forced “to go to trial with a court-appointed counsel, who the court knew to be highly prejudiced toward the defendant; and the court knew that the defendant had secured services of his own attorney * * * [and] that the court-appointed counsel did not present any defense whatsoever, and there is a complete absence of any objection whatsoever in the case.”

On May 10, 1961, the court appointed Honorable Thomas J. Layson, á well known and respected member of the Grundy County Bar, to represent defendant. The case was set for trial May 22, 1961, and on that date was reset for June 16. On June 16 it was reset for June 29, upon which date it was tried. The contention that his attorney was prejudiced against him apparently is the result of the fact that just before the beginning of the trial Mr. Layson, out of the presence of the jury, made the following statement to the court: “If the Court please, I want to make this record: I was appointed to defend Mr. Worley, the defendant. Here it is time to call the jury in. I have tried to confer with him. He’s never been to my office. He’s never been to see me. He was going to give me a list of his witnesses, and he’s never done that. I don’t know what his defense is. He’s never confided in me. And less than five minutes ago he told me that he had his father to testify where the pinch bar came from, and that his co-defendant’s uncle, who lives in Laredo, had given him the cigarettes. That’s the first information I have had. I have had no cooperation from him. And I am here to defend him and I will do the best job I can. But here’s his parents, and I have never met them yet. And they have never— nobody has ever come to see me. I have written him; I have called him; I have talked to his co-defendant’s mother, the person to whom I was supposed to make the calls; and I have had no assistance whatsoever. I have been totally ignored. I just want to make that record. I am going to defend him the best I can, Your Honor, but when this is over I don’t want him to say that he’s had no proper defense.”

It is understandable that Mr. Layson would desire to explain to the judge (who had appointed him) the reason he had been unable to make a' satisfactory preparation of the case before the trial. Defendant was at liberty on bond and apparently lived some distance from the place of trial, yet it appears that he did not go to Trenton to confer with Mr. Layson until a few minutes before trial time. We are of the opinion that under those circumstances defendant is in no position to complain of his attorney’s failure to make advance trial preparation. Moreover, we note Mr. Layson’s statement that he, nevertheless, would make the best defense he could. The court also advised the defendant that he would be given an opportunity to subpoena any witnesses he desired to present at the trial.

The only indication in the transcript that defendant may have employed an attorney appears in the following: “The Court: * * * The Court appointed Mr. Layson on May 10th to represent you in this matter. And you have had every opportunity since May 10th to confer with him, have you not? Bill Worley: I have been trying, but I haven’t had time to do it. My lawyer is out of town. He won’t be back until Monday. The Court: The Court is ready to proceed.” That does not clearly indicate that the attorney had been employed to try the case. If he had been so employed the attorney undoubtedly would have communicated with the court and sought a resetting on a date when he could have been present. We see no basis for the complaint that “the court knew that the defendant had secured services of his own attorney.”

Defendant specifically complains of the failure of his attorney to file a motion to suppress certain exhibits (cigarettes, pinch bar) found by officers in defendant’s car after his arrest, and his failure to object to the admission of certain evidence and exhibits which tended to connect defendant with the burglary of the Hathaway Grocery which occurred on the same night as the burglary with which defendant was charged. Expert testimony tended to show that the pinch bar found in defendant’s car was used in both burglaries. We need not determine whether a motion to suppress would have been sustained or whether, on objection, the evidence concerning the burglary of the Hathaway Grocery would have been excluded. We observe, however, that the search of defendant’s car was an incident to his lawful arrest (see State v. Redding, Mo.Sup., 357 S.W.2d 103), and that under certain circumstances evidence is admissible even though it tends to prove that defendant has committed another crime. See rule stated in State v. Gillespie, Mo.Sup., 336 S.W.2d 677 [10]. In this instance defendant’s attorney evidently decided that, as a matter of strategy, it was best not to object to the exhibits which tended to connect defendant with the Hathaway burglary because, when they were offered, he expressly stated, “No objection.”

For the purpose of disposing of defendant’s contentions concerning the manner in which his attorney conducted his defense, we will assume (which we certainly do not find as a fact) that he may have adopted what later appeared to be unwise strategy in some respects. Such, however, would not be sufficient grounds for setting-aside the conviction. This court “has consistently followed the rule that ‘negligence or want of skill of counsel affords no ground for the reversal of even a criminal case [State v. Dreher, 137 Mo. 11, 23, 38 S.W. 567, 569; State v. Selvaggi, 319 Mo. 40, 45, 2 S.W.2d 765, 767].’ State v. Mason, 339 Mo. 874, 98 S.W.2d 574, 577.” State v. Childers, supra, 328 S.W.2d 45. In cases under the federal statute (28 U.S.C.A. § 2255), which is similar to Rule 27.26, the courts have adopted the rule that “Lack of effective assistance of counsel in the trial of a criminal case constitutes impingement upon a constitutional right of the accused and lays the judgment and sentence open to collateral attack by motion under the statute. But the constitutional right to the effective assistance of counsel does not vest in the accused the right to the services of an attorney who meets any specified aptitude test in point of professional skill. And common mistakes of judgment on the part of counsel, common mistakes of strategy, common mistakes of trial tactics, or common errors of policy in the course of a criminal case do not constitute grounds for collateral attack upon the judgment and sentence by motion under the statute. It is instances in which resulting from the substandard level of the services of the attorney the trial becomes mockery and farcical that the judgment is open to collateral attack on the ground that the accused was deprived of his constitutional right to effective assistance of counsel. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, certiorari denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86; Black v. United States, 9 Cir., 269 F.2d 38, certiorari denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357.” Frand v. United States, 10 Cir., 301 F.2d 102, 103 (1962).

Our examination of the trial transcript indicates that the defense was conducted in substantially the same manner as cases of that nature are ordinarily defended. Mr. Layson carefully cross-examined each of the eight witnesses offered by the State and made an argument to the jury in defendant’s behalf. The record shows that after consultation with defendant and members of his family Mr. Layson advised the court (out of the hearing of the jury) that they had agreed that the best strategy was not to offer any evidence on behalf of defendant. After the verdict was returned Mr. Layson timely filed a detailed motion for new trial. We certainly see nothing in the transcript to indicate that the manner of conducting the defense caused the trial to become a mockery or farce. Quite the contrary is shown.

For the reasons heretofore stated, we are in accord with the conclusion of the trial court that the record discloses that defendant is not entitled to the relief sought in his motion.

The judgment is affirmed.

All concur.