text:
    STATE of Missouri, Respondent, v. Phillip Anthony SIMONE, Appellant.
    No. 52497.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or for Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Eugene E. Reeves, Sp. Asst. Atty. Gen., Caruthersville, for respondent.
    Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   STOCKARD, Commissioner.

Defendant was found guilty by a jury of receiving stolen property in violation of § 560.270 RSMo 1959, V.A.M.S., and sentenced to two years imprisonment. He has appealed from the ensuing judgment.

Section 560.270 provides that every person who shall “buy, or in any way receive, with intent to defraud, any property that shall have been stolen from another, knowing the same to have been stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing of the property so bought or received.” The indictment in this case, stripped of its formal matters, charged that the defendant on August 23, 1963, “did then and there unlawfully, knowingly and feloniously buy and receive, with intent to defraud Albert Price Cordier” certain property therein described all of the value of $50, “knowing the same property had been stolen.”

Defendant asserts that the indictment is fatally defective in that it “failed to allege the ownership of the property, and failed to allege that the property was in. fact stolen, or that it was stolen by someone else.”

Criminal Rule 24.01, V.A.M.R., provides, in part, that “[t]he indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.” The purpose of these requirements has been thus stated: “First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.” United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 574, 31 L.Ed. 516; State v. Mace, Mo., 357 S.W.2d 923. In order to accomplish this purpose the charges of an indictment should be pleaded with definiteness and certainty, and nothing of substance should be left to intendment or implication. State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 929. Where a statute defines the criminal offense and sets forth all of its elements, the better practice is for the indictment to follow the language of the statute, but an indictment will not be held insufficient for failure to do so if words of similar import are employed. State v. Harris, Mo., 313 S.W.2d 664, 669, State v. Carter, Mo., 64 S.W.2d 687, 688. The indictment in this case is inartfully drawn in that it does not follow the language of Section 560.270. However, poor draftsmanship alone does not necessarily result in an indictment being fatally defective.

The ownerhsip of the property previously stolen and received by the accused is not made an element of the offense defined in Section 560.270. It may be that evidence of ownership will establish proof of some essential element, but, an allegation of ownership is not essential to a charge by indictment of this statutory offense when the indictment otherwise sufficiently describes the property, which it did in this case. Sterling v. United States, 9 Cir., 333 F.2d 443, certiorari denied 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344; State v. Peters, 146 Mont. 188, 405 P.2d 642.

We cannot agree that the words used in the indictment did not charge that the property was stolen by someone other than defendant. The indictment charged that defendant knew the property had been stolen when he received it; not that he believed it had been stolen. Accepting as true this statement, the allegation sufficiently states that the property was stolen because if it had not been stolen defendant could not have known that it was. Also the indictment charged that defendant received the property with intent to defraud Albert Price Cordier. Therefore, defendant could not have received property that was his own while entertaining that intent. Also, the allegation that at the time defendant received the property it had previously been stolen precluded the defendant as the one who was thief. Defendant could not have received it from himself, and this was a sufficient allegation that it had been stolen by someone other than defendant.

As previously stated, this indictment was inartfully drawn. In fact its drafting implies carelessness. It would have been subject to a bill of particulars pursuant to Criminal Rule 24.03. But, the fact that an indictment may be subject to a bill of particulars does not necessarily mean that it is constitutionally defective. Taylor v. United States, D.C., 224 F.Supp. 82. Defendant never asked for a bill of particulars and never challenged the indictment for any reason. He obviously was never misled as to the precise charge made against him, and by reason of the language of the indictment he was in no way hampered in the preparation of his defense. We rule the indictment was sufficient.

Defendant asserts that his motion to suppress evidence was erroneously overruled in that “the search warrant was issued for the search of premises other than those searched and it was illegally changed to the address of the premises searched without the filing of a complaint or the taking of testimony.” He also asserts that the court erred in admitting in evidence items seized under authority of the search warrant which were not mentioned therein.

Prior to the trial of this case defendant filed a motion to suppress evidence “taken from the person and/or home of the defendant” on the following grounds: (1) the search and seizure “were made without warrant and without other lawful authority;” (2) the search warrant “which was in fact used” was not “for the property from which the merchandise was taken and the later search warrant was not supported by information by a reliable informant;” (3) the arrest of defendant was illegal; and (4) “the search and seizure violated” defendant’s constitutional rights. The search warrant was issued by a magistrate upon complaint of police officer Phil Ratcliff. The place authorized to be searched was described in the warrant as “a one-story brick building with basement located at 3705 St. John, Kansas City, Jackson County, Missouri.” The building intended to be described was located at 3703 St. John, and the evidence is not clear whether the description used in the warrant was a typographical error or whether the police officer mistakenly so described the building. In any event before any service ,was attempted the warrant was returned to the magistrate who changed the address to 3703 St. John, and the warrant was then served and the premises were searched. According to the return and inventory on the back of the warrant five items, consisting of three television sets, a tape recorder and a movie camera, were seized. Defendant now contends that some of these items were not described in the search warrant, but this contention was not mentioned in the motion to suppress. At the trial of this case two of the television sets, the tape recorder, and the movie camera, all of which had been seized by the police officers at 3703 St. John, were marked as State Exhibits 1 to 4 inclusive and identified by Albert Price Cordier as items of property belonging to him which had been stolen from his home on August 23, 1965, the day previous to the seizure. The third television set was not identified at the trial or offered in evidence. The following then occurred:

“Mr. Waterman [assistant prosecuting attorney]: I move at this time to introduce in evidence State’s Exhibits Numbers 1, 2, 3 and 4.
“Mr. Pierce [defense counsel]: No objection.
“The Court: Will be admitted.”

It has long been the rule in this state that evidence unlawfully seized by police officers is not admissible in evidence in a criminal case. Criminal Rule 33.03, V.A.M.R.; State v. Hunt, Mo., 280 S.W.2d 37; State v. Spica, Mo., 389 S.W.2d 35, 43. Whether evidence has been unlawfully seized is a question properly to be determined on a motion to suppress evidence. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. Lord, Mo., 286 S.W.2d 737, 740. In the event the trial court rules on the motion to suppress adversely to defendant’s position, and if the evidence claimed to have been unlawfully seized is subsequently offered in evidence at the trial, defendant must then object to the admission of the evidence with a proper statement of the reasons for that objection, and also present the matter in his motion for new trial and brief the issue on appeal in order to preserve the issue for appellate review. See State v. Hepperman, supra, State v. Lord, supra. The purpose of the motion to suppress evidence is to determine as a matter of law whether the items alleged to have been unlawfully seized are inadmissible in evidence for that reason. Unlawfully seized items never offered and received in evidence cannot form the basis for invalidating a criminal trial, and neither can the admission in evidence of items, even though unlawfully seized, when defendant states that he has no objection to the admission in evidence of the items. See State v. Holbert, Mo., 416 S.W.2d 129. See also State v. Hepperman, supra; State v. Lord, supra; State v. Egan, Mo.App., 272 S.W.2d 719, 723. This is the rule generally in other states. In Chandler v. State, 89 Ind.App. 304, 166 N.E. 289, the defendant’s motion to quash the search warrant and suppress evidence was overruled prior to trial, but at the trial defendant interposed no objection to the admission of evidence. The court said this: “It follows that it will not be necessary to decide the question as to whether the trial court erred in overruling appellant’s motion to quash the search warrant and suppress the evidence shown by the return thereon; for if the appellant, on the trial, made no objection to the admission of the state’s evidence which had been procured by the search, he thereby waived the error, if any, in the court’s ruling on the motion to quash the search warrant and suppress the evidence shown by the return.” See also, Robertson v. State, 94 Fla. 770, 114 So. 534; Dukes v. Commonwealth, 196 Ky. 60, 244 S.W. 74; State v. Hartness, 147 Wash. 315, 265 P. 742; Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361.

By affirmatively stating at the trial that he had no objection to the admission in evidence of the four items obtained by use of the search warrant, defendant expressly waived any error on the part of the trial court in refusing to suppress evidence, and he is not entitled to complain on appeal as to the admission of evidence to which he stated he had no obj ection.

Defendant next asserts that the court erred in denying his motion for acquittal because there was not “substantial or sufficient evidence * * * that [he] had exclusive possession of the stolen items, that he ever bought or otherwise received the items, or that he knew they were stolen.”

From the evidence in this case the jury reasonably could find that the four items introduced in evidence were stolen from Albert Price Cordier on August 23, 1965, and that on the following day they were found in a store known as St. John Sundries owned and operated by the defendant. The evidence further showed that in addition to the items found in defendant’s place of business, an antique teakettle and a silver candelabra had been stolen from Albert Price Cordier. At the time of his arrest defendant was shown a photograph of the teakettle and asked about the candelabra, and he stated that he had seen the teakettle and candelabra but that he had not wanted anything to do with either item. A mink coat was erroneously reported by Mr. Cordier to have been stolen at the time the other items were taken, and when the police officers asked defendant about the coat he replied, “Honest to God I have been informed this mink coat was not taken in the burglary.” When defendant was asked where he obtained the items found on his premises he replied, “You have the stuff, what more can I say,” and “you know I can’t tell you where I got it.” At the trial defendant testified that he returned to his store and found the officers there, and that it was after the officers had seized the four items previously stolen from Mr. Cordier, that he first saw them and that he did not know how the items came to be in his place of business.

Section 560.270 RSMo 1959, V.A.M.S., proscribes buying or receiving property of another knowing it to have been stolen with intent to defraud. It does not require that the possession of the stolen property by the defendant must be exclusive, and such requirement is not the general rule. It is sufficient that the defendant acquired actual or constructive possession of stolen property with the requisite intent and knowledge. State v. Ellers, 234 N.C. 42, 65 S.E.2d 503; Longman v. Commonwealth, 167 Va. 461, 188 S.E. 144. It is the unusual situation when there is direct evidence of the intent of a person charged with a crime, and the requisite intent may and generally must be established by circumstantial evidence. State v. Chevlin, Mo., 284 S.W.2d 563, 566; State v. Whitaker, Mo., 275 S.W.2d 316. Also, “It is often difficult to make direct and positive proof of the accused’s knowledge the goods were stolen, and this element may be inferred from certain facts and circumstances.” State v. Hicklin, 358 Mo. 1016, 218 S.W.2d 564, 565; State v. Ciarelli, Mo.App., 366 S.W.2d 63, 67. A jury is permitted to draw from the evidence such reasonable inferences as the evidence will support, State v. Ciarelli, supra, and from the circumstances above outlined and the declarations of defendant at the time of his arrest, we have no hesitancy in ruling that a submissible case for the jury was made on the issues of defendant’s intent to defraud and his knowledge that the items introduced in evidence were stolen.

Defendant next asserts that the trial court erred “in admitting in evidence testimony of incriminating statements obtained from [him] without his first having been advised of his right to remain silent and his other constitutional rights.” From the argument portion of his brief we find that defendant refers to the declarations against interest referred to in the discussion of the previous point. Defendant cites only Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In State v. Beasley, Mo., 404 S.W.2d 689, this court stated that the test to be applied to cases tried prior to June 13, 1966, as was this case, is the totality of the circumstances. See also, Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423. When we apply that test to the facts and circumstances herein, we find that defendant voluntarily made all the statements about which he now complains. He never requested and was never denied counsel, and there was no holding of him incommunicado or even in separate confinement. At no time did he object to being questioned or indicate any desire not to answer questions propounded to him by the police officers. He was not young and inexperienced. In fact he was thirty-five years of age and the owner and operator of a business. We find no evidence to show any indication of coercion, threats, promises, or improper action on the part of the police officers. We necessarily rule from the totality of the circumstances that defendant’s statements were voluntary and properly admitted in evidence.

Defendant next asserts that error resulted from the giving of Instruction 4, a verdict directing instruction, because it “authorized a conviction without limiting the alleged stolen items to those alleged in the indictment.” The language of the instruction to which this objection is directed is that which authorized a finding of guilty if the jury found that the defendant “did * * * receive, with intent to defraud, the goods and chattels of one Albert Price Cordier of the value of fifty dollars or more, knowing said goods and chattels to be stolen property, * * Defendant argues that “the jury might well have convicted him, relying on his alleged statement to the police, of receiving the candelabra and coffee pot” which were not mentioned in the indictment. The immediate answer to this argument is that the evidence contains no statement by defendant that he received the candelabra and coffee pot. (The reference in the evidence is to a teakettle). Instead, such statements by defendant as are in the evidence are to the effect that he did not receive these items, and there is no evidence to the contrary. Defendant cites only State v. Weinberg, 245 Mo. 564, 150 S.W. 1069. There, it was stated only that “the jury were properly restricted by the instructions to the ‘personal property mentioned in the information.’ ” Ordinarily the jury would not have reason to know what property was described in the information or indictment, and some other method of description would seem more appropriate. However, directing ourselves to the specific objection made, we find that by reading Instruction 4 and Instruction 6 together, see State v. Duncan, Mo., 316 S.W.2d 613, 618, the alleged deficiency of Instruction 4, if it is in fact a deficiency, is corrected. Instruction 6, a cautionary instruction, states that by the term “ ‘knowing’ that the property was stolen,” which referred to the phrase “knowing said goods and chattels to be stolen property” as used in Instruction 4, did not mean “absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen.” (Italics added) In view of the fact that there was no evidence that defendant received any stolen property except that which was described in the indictment, and that when read together the instructions clearly indicate that the term “goods and chattels” as used in Instruction 4 referred to the “property mentioned in the indictment [which] had been stolen” as used in Instruction 6, we find no prejudicial error in Instruction 4 in the respect contended.

The review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows, as previously demonstrated, that the indictment is sufficient. Such review also shows that while represented by counsel of his own choosing defendant was accorded a jury trial upon his plea of not guilty; that the verdict is in proper form and is responsive to the issues; that the punishment is within legal limits; and that allocution was granted.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Harold Leroy TATE, Appellant.
    No. 52179.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O’Leary Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Karl F. Lang, St. Louis, for appellant.
   DONNELLY, Judge.

Appellant, Harold Leroy Tate, was convicted of carrying a dangerous and deadly weapon about his person under § 564.610 RSMo 1959, V.A.M.S. (as amended Laws 1965, H.B. No. 271), by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.-280 RSMo 1959, V.A.M.S., was assessed at imprisonment in the Workhouse of the City of St. Louis for a term of one year. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

The Amended Information charged appellant with violation of the Habitual Criminal Act, and “that the said HAROLD LEROY TATE * * * on December 5, 1965, at the City of St. Louis aforesaid, did unlawfully and feloniously carry concealed about his person a certain deadly and dangerous weapon, to-wit: .22 caliber automatic pistol; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.”

Section 564.610 RSMo 195, V.A.M.S. (as amended Laws 1965, H.B. No. 271) reads in part as follows: “If any person shall carry concealed upon or about his person a dangerous or deadly weapon of any kind or description, * * * he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, or by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail not less than fifty days nor more than one year, or by both such fine and imprisonment; * *

On December 5, 1965, at 12:50 a. m., Sgt. Edward Jones, a police officer in the City of St. Louis, was operating a patrol car on Sarah Street in the City of St. Louis. As he turned left onto Ashland Avenue he heard what sounded like a gunshot. He drove about ten or fifteen feet and stopped in the middle of the street. He saw appellant standing in the doorway at 4136 Ash-land Avenue. He then heard a second gunshot and saw a flash of fire about a foot above appellant’s head and on the right side of appellant’s head. Jones was about forty feet from appellant when he saw the flash of fire. He was unable to see appellant’s arms, hands or gun at that time. Jones got out of the car and appellant started down the steps from the doorway. As Jones and appellant approached each other, Jones observed appellant at all times and appellant’s arms were “at his sides.” Appellant was wearing some kind of coat. Jones could not see appellant very well because it was nighttime. When appellant reached the sidewalk, he walked in an easterly direction a few steps and then threw his gun into the gutter. At that time, Jones was five to ten feet behind appellant. Jones did not see the gun at any time until after it was thrown in the gutter. When he saw it in the gutter, he arrested appellant. During the entire incident, Jones and appellant were the only two people on Ashland Avenue. Appellant did not testify.

On the issue of concealment of the weapon, Jones’ testimony relates to what occurred just before appellant threw his gun in the gutter.

On direct examination Jones testified as follows: “Q After you got out of the car and he was heading east, was he on the sidewalk at this time? A He was walking on the sidewalk.

******

Q What, if anything, happened then? A Well, he walked about five or six steps, then he reached his hand into his right front trouser pocket. It appeared he threw something in the gutter; I heard what seemed to be metal hitting the ground.

******

Q Now you saw Mr. Tate put his hand in his pocket, is that correct? A In his right trouser pocket. Q Did he place it all the way in the trouser pocket? A I don’t recall that; I wouldn’t be able to say. All I know is the gesture was his hand went into his right front trouser pocket. Q His hand did go into his pocket? A Yes. How far, I don’t know.”

On cross-examination, Jones testified as follows: “Do you actually know if he put his hand in his pocket? A I— Q What was your answer? Do you know, actually know if he put his hand in his pocket? A I coudn’t say for sure he actually put his hand in his pocket. Q He might have had the gun at his side and thrown it down, isn’t that true; in other words, when he turned from you, his right hand was over here and he was walking, started to walk east on Ashland, he would be out of your view, would he not? A True. Q True? A I had walked behind him. Q You were coming in this direction?

⅜ ⅜ ⅝ ⅝ ⅜ ⅜

A By this time I am behind him. It appeared he put his hand in his pocket. Q But you can’t say for sure? A. I couldn’t say for sure. Q He could have had his gun by his side the whole time he was walking down the steps, isn’t that true? A I don’t know. It appeared to be that he put his hand in his pocket.”

In Missouri, concealment is an essential element of the offense charged. State v. Duggins, 284 Mo. 633, 225 S.W. 987. “Generally, the test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation.” State v. Bordeaux, Mo.Sup., 337 S.W.2d 47, 49.

We are of the opinion that the evidence adduced is not sufficient to sustain a finding that appellant had a dangerous and deadly weapon concealed about his person on the occasion involved.

It is conceded that appellant was carrying a dangerous and deadly weapon. However, the essence of the offense charged is carrying it concealed about the person. It is uncontradicted that the gun was “discernible by ordinary observation,” and not concealed, when Jones heard the gunshot and saw the flash of fire about a foot above and to the right of appellant’s head. Therefore, the State’s case must stand or fall on whether the evidence is sufficient to show appellant concealed the gun during the period after he fired the second shot and before he threw the gun in the gutter. Jones testified that after appellant reached the sidewalk and turned east it appeared appellant “reached his hand into his right front trouser pocket.” However, Jones did not see the gun at any time until after he found it in the gutter. Jones did not observe appellant place the gun in his pocket. Jones did not observe appellant take the gun from his pocket. There is no evidence from which we can reasonably infer that the gun was concealed in appellant’s pocket.

Therefore, the evidence “amounts to nothing more than a showing that appellant had an opportunity to carry the weapon concealed. Whether or not he did carry the weapon concealed is left to mere conjecture, and the finding of the jury that he did carry the weapon concealed has no evi-dentiary basis. Under such circumstances, the verdict cannot stand.” State v. Duggins, supra, 284 Mo. 633, 636, 225 S.W. 987, 988.

We hold the State’s evidence insufficient to prove appellant guilty of carrying a dangerous and deadly weapon concealed about his person. The trial court should have directed an acquittal. The judgment is reversed and defendant discharged.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. James Russell DRANE, Appellant.
    No. 52259.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Special Asst. Atty. Gen., St. Louis, for respondent.
    Stewart & Bruntrager, Raymond A. Bruntrager, Joseph G. Stewart, St. Louis, for appellant.
   HOUSER, Commissioner.

James Russell Drane was charged with driving, operating and using a Cadillac motor vehicle, without the permission of the owner thereof, Forrest Leasing Company, “in the care and custody of James B. Hill,” § 560.175, V.A.M.S. Convicted by a jury, he was sentenced to 3 months’ imprisonment in the workhouse of the City of St. Louis and fined $100, and has appealed from the judgment of conviction.

The state’s case tended to show that the Cadillac was leased by Forrest Leasing Company to James B. Hill and Company, a corporation; that lessee’s president, James B. Hill, had possession and custody of the vehicle, which disappeared from the place where it was parked on the street in front of Mr. Hill’s apartment in St. Louis; that no one but Mr. Hill had permission to use or operate the Cadillac and that Mr. Hill had not given defendant permission to do so; that the Cadillac was thereafter found in the possession of defendant, who had been driving, operating and using it for several days prior to his arrest.

Drane’s defense to the charge was based on the theory that he had in good faith purchased the Cadillac from Lindberg Cadillac Company and that he had legal title to the automobile. He testified that he went to the Lindberg auto agency, looked at numerous vehicles there offered for sale; that as he was leaving he was met by a well-dressed man who appeared to be, acted like and said that he was a salesman for Lindberg Cadillac Company; that the man showed him the Cadillac in question, invited him to take a demonstration ride; that he became interested in buying it; that the “salesman” first asked $5,200 for the automobile; that defendant pointed out that the car had 16,000 miles on it and that the leather on the front seat was badly worn; that the “salesman” said that he would go inside and “talk to his boss about it, and see what he could do” for him; that the “salesman” went into the company office and came back saying that if there was no trade-in he could let defendant have it for $4,200; that defendant agreed and paid the man $600 in cash, for which defendant received a receipt; that the “salesman” wrote defendant’s name and address on a clipboard he was carrying and told him to wait while he went inside and had the cashier type up the papers; that the “salesman” returned to the lot saying that the cashier was “pretty busy” and that he would have the papers typed and bring them and the car to defendant’s house the next day; that the next day the “salesman” brought the automobile to defendant’s home, delivered to him a form of application for Missouri certificate of title and license, and that defendant paid him the balance of $3,600 in cash and took possession of the automobile. The typed-in form recited that Lindberg Cadillac Company was the legal owner of the vehicle. The seller’s signature (“Lindberg Cadillac Co.”) was typed in, and underneath the typing there was a name in handwriting, together with the purported certificate and seal uf Pearl R. Scott, described therein as a notary public, showing that the document had been subscribed and sworn to before the notary. Based on this paper the Director of Revenue of the State of Missouri issued to defendant a certificate of title to the Cadillac, and defendant paid the state $126 sales tax, $22.92 license fee and $1 title fee. On these facts defendant claimed that he was the true owner of the Cadillac.

It is indicated that the Cadillac had not been the property of Lindberg Cadillac Company; that there was no such salesman in its employ; that there was no such notary registered in St. Louis, and it appears that if defendant’s story is true he is not guilty of the charge and that he was bilked out of $4,200.

The case was submitted to the jury under an instruction authorizing a verdict of guilty upon a finding that defendant unlawfully, wilfully and feloniously did drive, use and operate a certain 1964 Cadillac automobile, the property of Forrest Leasing Company, Incorporated, a corporation, without the permission of the leasing company so to do, “in the care and custody of James B. Hill,” and authorizing an acquittal unless the jury so found all the facts to be. No instruction was offered or given recognizing the defense of driving and operating an automobile in good faith in ⅛⅜ honest belief that the defendant had good legal title by purchase.

Defendant makes the point that the court erred in giving the foregoing instruction because it ignored his defense, and that the court thereby failed to instruct upon all questions of law arising in the case, as required by Criminal Rule 26.02, V.A.M.R. and § 546.070(4), V.A.M.S. This contention must be sustained.

Criminal Rule 26.02 requires the court to instruct the jury upon “all questions of law necessary for their guidance in returning their verdict.” An instruction which purports to cover the whole case but which entirely ignores a defense supported by evidence is erroneous and constitutes reversible error. State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467 [9]; State v. Winn, Mo.Sup., 324 S.W.2d 637 [2]; 23A C.J.S. Criminal Law § 1317, and Missouri cases there cited. “[A] 11 questions of law necessary for their guidance” include the presentation of the defendant’s theory of the case as well as that of the state. An instruction “should guide them fairly, should present both sides of a proposition if it has two sides,” State v. Harris, 232 Mo. 317, 134 S.W. 535, 536, and where there is evidence to support a defense the instruction should as plainly and fairly hypothesize the defense as it does the question of guilt. State v. Webster, Mo.Sup., 230 S.W.2d 841.

This principle has been frequently applied. In State v. Busch, 342 Mo. 959, 119 S.W.2d 265, a conviction of stealing cattle was reversed for failure of the main verdict-directing instruction to submit or take into consideration accused’s defense that he did not know that the cattle were being stolen and was hauling them in good faith for hire. In State v. Collins, 292 Mo. 102, 237 S.W. 516, a conviction of grand larceny of a stray cow, an instruction omitting any reference to the defendant’s main defense (that he had a stray animal that resembled the cow taken, and believed that the cow was his property) was held to constitute reversible error. In State v. Slusher, 301 Mo. 285, 256 S.W. 817, defendant was charged with stealing a rowboat. Defendant testified that he purchased the boat. The instruction ignored the defense. The attorney general confessed error and the judgment was reversed on this ground, the court saying, 256 S.W., 1. c. 819: “The vice of the instruction is that it purports to cover the whole case, and authorizes a verdict without taking into consideration the defenses offered by the defendant to the effect that he bought the boat — came by it honestly. Under section 4025, R.S.1919, whether requested or not, the court must instruct on all questions of law arising in the case, and that means the court should present to the jury the defendant’s theory of the case, as well as that of the state.” In State v. Johnson, 334 Mo. 10, 64 S.W.2d 655, where the charge was forgery of a note and the defense was that defendant had authority to sign the note, an instruction ignoring the defense was held to constitute reversible error. In State v. Webster, Mo.Sup., 230 S,W.2d 841, the charge was stealing hogs. The defense was that defendant’s father was entitled to the hogs and that defendant innocently took and sold them at his father’s request. The verdict-directing instruction ignored the defense, although it did contain the words “without any honest claim thereto.” Notwithstanding these latter words this court reversed a conviction for failure of the instruction to submit the defense that defendant innocently acted under the belief that his father owned the hogs. In State v. Gale, Mo.Sup., 322 S.W.2d 852, a prosecution for stealing two tires, the verdict-directing instruction did not refer to the defense that at the time the tires came into defendant’s possession he discontinued the use of the tires and planned to contact the alleged owner to learn what disposition was to be made of them. (See § 560.156, subd. 3, V.A.M.S.) The judgment was reversed for failure to properly instruct the jury on the defense which is accorded under the statutory provision, where the property stolen is a chattel and the accused comes into its possession under circumstances showing that he had no intention of stealing it. In the case here for review there was ample substantial evidence to sustain the defense but the defense was not referred to in the instructions. The main verdict-directing instruction purported to cover the whole case but it ignored this amply supported defense. This constituted reversible error.

Other errors are assigned as follows: • in permitting state’s witness Hill to testify as to the contents of the lease of the automobile because the lease was the best evidence of its contents and there was no showing that the lease was not available; in failing to direct an acquittal for failure of the state to prove ownership in Forrest Leasing Company, as charged in the indictment; and in permitting the state in cross-examination of the defendant to go outside the scope of the direct examination. Since the judgment of conviction must be reversed for error in instructing the jury, and since none of the other claims of error, if sustained, would result in an outright reversal without remand, see State v. Walker, Mo. Sup., 365 S.W.2d 597, 602 [8]; State v. Watson, Mo.Sup., 350 S.W.2d 763, 768 [4], we need not notice the other assignments of error, except to suggest that all controversy about these questions can be avoided in case of a retrial by the state introducing in evidence the certificate of title in the name of Forrest Leasing Company, if there be one; by producing a representative of the leasing company to testify that this defendant was not given permission by the leasing company to drive and operate this automobile, if that be true; by introducing in evidence the trust lease agreement, and by observing the admonition of § 546.260, V.A.M.S., that a person on trial who testifies in his own behalf is liable to cross-examination “as to any matter referred to in his examination in chief,” as that section has been interpreted in State v. Pierson, 331 Mo. 636, 56 S.W.2d 120, 123 [5].

Judgment reversed and cause remanded.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE ex rel. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Respondent, State ex rel. Eastern Missouri Telephone Company, a Corporation, Respondent, State ex rel. South Missouri Telephone Company,. a Corporation, Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Tyre W. Burton, E. L. McClintock, William Barton, Frank W. May, and Donal D. Guffey, as Members of said Public Service Commission, Appellant.
    Nos. 52577-52581.
    Supreme Court of Missouri, En Banc.
    May 31, 1967.
    Motion for Rehearing Denied July 10, 1967.

      John Mohler, St. Louis, for respondent, Southwestern Bell Telephone Co.
    Hendren'& Andrae, by John E. Burruss. Jr., Jefferson City, for respondent, South Missouri Telephone Co.
    Wayne W. Waldo, General Counsel, H. Burks Davis, Jefferson City, for appellant.
   FINCH, Judge.

These appeals all involve the propriety of an order of the Public Service Commission which directed Southwestern Bell Telephone Company (Bell) to provide telephone service to an area in Montgomery County, Missouri. In separate cases, the Commission denied requests by Eastern Missouri Telephone Company (Eastern) and by South Missouri Telephone Company (South Missouri) to provide telephone service for this same area for the reason that Bell was being directed to provide service. On certiorari to the Circuit Court of Cole County, these cases were consolidated for briefing and argument. The Circuit Court reversed the Commission, finding that it had no authority to require Bell to extend its services to the area in question and ordering the applications of Eastern and South Missouri returned to the Commission for further consideration.

The Commission appealed all of the cases to the Kansas City Court of Appeals. It transferred the cases to this court on the basis that the cost to Bell of installing the facilities called for would be $134,000 and hence the amount in dispute is in excess of $15,000. State ex rel. Southwestern Bell Telephone Co., et al. v. Public Service Commission of Missouri, Mo.App., 416 S.W.2d 669 (decided Oct. 3, 1966). This court does have jurisdiction. State ex rel. City of Neosho v. Public Service Commission, Mo., 367 S.W.2d 589;; State ex rel. Public Water Supply Dist. No. 2 of Jackson County v. Burton et al., Mo., 379 S.W.2d 593. The five appeals may be decided by one opinion.

What the parties and the Commission refer to as the “disputed area” lies in the eastern part of Montgomery County. The twin communities of Bellflower and Liege are located in the western half of that area. The area has been and presently is served by the Bellflower Mutual Telephone Company. Immediately to the west and south lies the territory of Bell’s Montgomery City telephone exchange. To the north, telephone service is provided by Eastern, and to the south and east is located the area which South Missouri serves. Its nearest exchange is at Truxton.

Prior to the filing of any of the proceedings involved in these appeals, the Midwestern Telephone Company, predecessor of South Missouri, sought to extend its Truxton exchange area westward to include territory being served by Bellflower Mutual. Bellflower Telephone Company, a corporation organized as a proposed successor to the Mutual Company, then sought a certificate of convenience and necessity to authorize it to serve the Bellflower Mutual area, including the territory Midwestern sought to annex to its Truxton exchange. The two cases were heard jointly by the Commission. It denied the petition of Bell-flower, but granted Midwestern a certificate which covered an area described by the parties as constituting the east half of the “disputed area.” Bellflower sought review of the Commission’s order and both cases still are lodged in the Circuit Court of Cole County. Pending determination of those cases on review, South Missouri has not made any installations in the area involved in those proceedings.

After the Commission’s hearing in the Bellflower-Midwestern cases, 152 residents of the “disputed area” filed petitions with the Commission requesting it to authorize Bell to provide telephone services within the area. Bell did not request authority to serve the “disputed area,” but filed an answer stating its opposition to extension of its services and its unwillingness to serve to the east beyond its Montgomery City exchange area boundaries. The 152 residents then amended their petitions and asked the Commission to require rather than merely authorize Bell to provide telephone services. Both Eastern and South Missouri intervened and opposed the petitions for service by Bell. In addition, each company filed a separate petition with the Commission asking a certificate of convenience and necessity to serve the “disputed area.”

The Commission held separate hearings involving the application of the 152 citizens for Bell service, the application of South Missouri, and the application of Eastern. Extensive testimony was taken in each of the three cases. Subsequently, by three to two decisions, the Commission directed Bell to provide telephone service in the entire “disputed area.” Its order specified that “Bell shall hereinafter offer telephone service to the public in such area through its Montgomery City exchange and an exchange in the Bellflower-Liege area, if so established, and it is further ordered to offer extended area service to the public between the disputed area and the Montgomery City exchange and to obtain any necessary franchises and permission to use the State and County roads and City streets to carry out these orders as provided by law.” The Commission found that all three companies were fully able to serve the “disputed area,” but stated that the overwhelming sentiment among the public for Bell as first choice to serve the area left little for the Commission to do save to order Bell to accede to the wishes of the public. Residents of the northeastern part of the “disputed area” (the part for which South Missouri received a certificate of authority in the prior proceeding) were given an option of service by Bell or by South Missouri out of its Truxton exchange “so long as they live on the property where they now reside.” If they elected South Missouri service, the latter was required to furnish the service, but when a subscriber in that area moved from his present property or died, the option would terminate and service thereafter would be by Bell.

The Circuit Court, in reversing Commission case No. 14655 (the Bell case), found that (1) the Commission had not made a finding of fact that Bell had ever offered, professed or undertaken to provide its telephone utility services to the “disputed area,” (2) there was no competent and substantial evidence in the record to show that Bell had ever so offered, and (3) the Commission had no authority to require Bell, contrary to its wishes, to extend its services into an area which it had not offered, professed or undertaken to serve.

The Circuit Court reversed the Commission in the cases involving Eastern (No. 15322) and South Missouri (No. 15279) and remanded them for further consideration by the Commission. The court stated that since the Commission denied those applications on the assumption that service would be provided for the area by Bell, the matter should be considered further in the light of the judgment holding Bell could not be required to furnish such service.

At the outset, we point out that “[i]n this review our province is to determine whether the commission’s order is lawful and, if so, whether it is reasonable and based upon competent and substantial evidence upon the whole record.” State ex rel. Hotel Continental v. Burton et al., Mo., 334 S.W.2d 75, 78.

We hold that the Commission is without power to order a telephone company to provide services in an area which it has not offered, professed or undertaken to serve. What this court said in State ex rel. Ozark Power & Water Co. v. Public Service Commission of Missouri et al., 287 Mo. 522, 229 S.W. 782, 784, is applicable: “If it be true, as relator contends, that Diamond is not a part of the territory it has undertaken to serve, then unquestionably the Commission was without power to make the order under consideration. The Public Service Commission Law (subdivision 2, § 10478, R.S.1919) confers upon the Commission ‘power to order reasonable improvements and extensions of the works, wires, poles, pipes, lines, conduits, ducts and other reasonable devices, apparatus and property of * * * electrical corporations. * *’ This power, however, must be deemed to be one within constitutional limitations. So construed, it does not give the Commission authority to compel relator to serve a territory not embraced within its profession of service. Such compulsion would be tantamount to an appropriation of relator’s property to a public service to which it has not dedicated it — a taking of private property for public use without just compensation. Atchison, T. & S. F. Ry. Co. v. Railroad Comm, [of California], 173 Cal. 577, 160 Pac. 828, 2 A.L.R. 975. For notwithstanding relator is employing its plant and equipment in a public service, they still remain its private property, and the public may not assume the role of general manager and require such property to be used in a service to which the owner has not voluntarily dedicated it. Interstate Commerce Com. v. [Chicago Great Western] Railroad, 209 U.S. 108, 28 Sup.Ct. 493, 52 L.Ed. 705.”

The case of State ex rel. Doniphan Telephone Co. v. Public Service Commission, Mo.App., 377 S.W.2d 469, is cited by the Commission as authority for its order for service by Bell. In the Doniphan case the Commission ordered Southwestern Bell

Telephone Company to provide service to an area known as the “Three Mile Strip” in the southern part of Madison County. The case originated upon petition of residents of the area asking that they be afforded telephone service by Bell. The proceedings were opposed by Bell as well as by Doniphan Telephone Company. The Commission ordered Bell to provide service. The issue of the validity of that order, however, was not involved in the case on appeal because Bell did not seek a review of the Commission’s order. Only Doniphan Telephone Company appealed from the Circuit Court’s judgment of affirmance, and hence the case on appeal involved solely the rights of Doniphan Telephone Company to serve the area. Neither the decision by the Kansas City Court of Appeals nor the decision of this court which transferred the case to the Court of Appeals on jurisdictional grounds is authority for the validity of the order of the Commission herein.

The Commission argues that it has the power to order a telephone company to provide service to a particular area solely on the basis that the public interest so requires, even where the company has not professed to offer service to that territory. Its brief states: “Telephone companies are permitted to make voluntary extensions of their lines only with the consent of the Commission, lest waste may otherwise ensue. On the other hand, they are made subject to a correlative duty if so ordered by the Commission to make improvements, additions and extensions, even though unwillingly, when telephone service is otherwise inadequate.” For us to so hold would be to require a company, merely because it operates a utility under state supervision and pursuant to state authority at one location, to dedicate a portion of its property to the operation of a similar utility elsewhere, even though it had not so requested or offered, and even though this operation was contrary to its wishes. As said in the Ozark Power & Water case, supra, 229 S.W. 1. c. 785, this would be “an appropriation of relator’s property to a public service to which it has not dedicated it — a taking of private property for public use without just compensation.” This would violate both the Fourteenth Amendment to the Constitution of the United States and § 10, Article I of the Constitution of Missouri, 1945, V.A. M.S.

The fact that 273 of a potential of 275 or so customers in the “disputed area” expressed a strong preference for Bell service and an unwillingness to accept another company, no matter how good, cannot and does not serve as a basis for authority of the Commission to order service where the company has not professed to serve and is unwilling to serve. The desires of the people can be of importance as between rival companies seeking authority to serve, or in determining whether to order an extension of service in an area which a company has professed to serve, but the Commission does not have the power to order a company to enter a new area and provide service therein on the basis of popular desire.

The Commission does have power to order a telephone company to make reasonable improvements in its facilities or to extend its lines so as to provide service or better service in an area which the company has undertaken or professed to serve. That question was settled in the Ozark Power & Water case, supra, 1. c. 785, by the language: “On the other hand, if Diamond is territory comprehended within relator’s profession of service, relator may be required to serve it, because it is relator’s duty, within reasonable limitations, to serve all in such territory who apply.”

We come, therefore, to the question of whether Bell has professed to serve the “disputed area.” The Circuit Court in its findings and judgment observed that the Commission made no finding of fact that Bell had ever offered, professed or undertaken to provide its telephone services in the “disputed area.” It further found that there was no competent and substantial evidence in the record to support such a finding if one had been made. We agree. The Commission stresses the fact that Bell has provided service within the territory designated in the area map for the Montgomery City exchange on file with the Commission, and that it includes rural territory which adjoins rural portions of the “disputed area.” It also includes Price’s Branch, a small community immediately adjacent to the disputed area on the south, and the community of Buell, which is north and east of Montgomery City and also near the boundary of the “disputed area.” A community of interest exists between people in the “disputed area” and Montgomery City, as the witnesses testified and the Commission found. These facts, however, do not mean that Bell has offered to serve other than the territory shown on its Montgomery City exchange area map. If we were to adopt a philosophy that territory which immediately adjoins an exchange area is to be considered a part thereof and hence within the proffered service area, there could be repeated extensions of the area of service on the basis of proximity and community of interest. Such a holding would result in ascribing to a company an intention to offer service to an area in which the company in fact did not offer service. We reject that concept.

The next contention by the Commission is that Bell has made a profession of service by furnishing long distance service to the “disputed area.” In the first place, this would not amount to a profession of local telephone service. Furthermore, Bell simply provides to Bellflower Mutual a connection with Bell’s toll system to permit it to provide long distance service to its customers. Persons using long distance are customers of Bellflower Mutual, not Bell. This is not a basis for holding that Bell has professed to furnish telephone services to the “disputed area.”

Finally, the Commission argues that Bell operates under “grandfather rights” conferred by the Public Service Commission Act of 1913 and that as a result it necessarily professes to serve all of the State of Missouri. This conclusion does not follow. The pertinent section in the 1913 Act (now § 392.260, R.S.Mo. 1959, V.A.M.S.) is as follows: “No telegraph corporation or telephone corporation hereafter formed shall begin construction of its telegraph line or telephone line without first having obtained the permission and approval of the commission and its certificate of public convenience and necessity, after a hearing had upon such notice as the commission may prescribe. * * *»

The above section requires that telephone corporations formed after the date of the Act secure permission and approval from the Commission and its certificate of public convenience and necessity prior to constructing telephone lines. It does not impose such an obligation on telephone companies organized prior to that date. Whether, as the Commission asserts, Bell may serve any area in Missouri not then being served by it without seeking authority from the Commission is not before us for decision. Even asuming such “grandfather rights” to profess to serve the entire state, the question we must determine is whether Bell, in fact, has professed to provide service to the area. A mere right to so profess is not enough. In the Ozark Power & Water case, supra, the relator utility company had been organized in 1911, prior to the enactment of the Public Service Commission Act. Its corporate charter from the State of Missouri empowered it “to generate, distribute and sell electric energy in Missouri and elsewhere, and to do all things incident thereto.” The court, 1. c. 785, said: “The charter in this respect is permissive merely. It does not require relator, upon demand, to distribute and sell electricity everywhere in Missouri; nor can it be reasonably inferred that by accepting such charter power it undertook to furnish service in all parts of the state.” That language is applicable here. The mere fact, if it be a fact, that Bell’s charter authorized it to serve anywhere in Missouri did not thereby impose a duty to furnish services everywhere in the state, nor constitute a profession of service for every part of the state. The fact that subsequently, when the Public Service Commission Act was enacted, the legislature exempted existing telephone companies under what is now § 392.260 does not alter the situation. The “grandfather rights” represented a concession by the state, not the imposition of an obligation. The issue here, as it was in the Ozark Power & Water case, is whether the company in fact has professed or offered to provide telephone service to the area in question. We have ruled previously that the evidence in the record before us does not so establish.

The judgments of the Circuit Court in all of these cases are affirmed.

' All concur.

      . These 152 individuals also asked the Commission to postpone its decision in the Bellflower-Midwestern cases until their case could be heard and decided, but that motion was denied.

      . Additional petitions were filed at the hearing' and . the number of petitioners was increased to 273. These included officers of Bellflower Mutual who testified that it would discontinue operations if Bell should be directed to serve the area.

      .South Missouri describes this as a “determinable life estate” for telephone service and says that is arbitrary and unreasonable. In view of the result we reach, we need not consider this contention or the argument that ruinous competition was required by certificating two companies in part of the area in question.

      . There are five cases here because Bell, South Missouri, and Eastern all took separate appeals in the Bell case and South Missouri and Eastern each appealed its own case.

      . The dissenting opinions of Commissioners McClintock and Guffey of the Public Service Commission relied on the Ozark Power & Water Company case as authority that the Commission could not order service in the area by Bell.

      . State ex rel. Doniphan Telephone Company v. Public Service Commission, Mo., 369 S.W.2d 572.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Billy Joe GARRETT, Lonnie Garrett, and Sam Irby, Appellants.
    No. 52111.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Special Asst. Atty. Gen., Pacific, for respondent.
    Linus E. Young, Portageville, for appellants.
   EAGER, Judge.

These defendants were charged jointly by amended information with first degree robbery by means of a dangerous and deadly weapon, alleged to have been committed in the County of New Madrid on October 27, 1965. Each was also charged with one or more convictions of prior felonies and with imprisonment therefor, Billy Joe Garrett with three, Sam Irby with four, and Lonnie Garrett with one. They were tried jointly and the jury, in separate verdicts, found all three guilty of “Robbery 1st Degree.” Billy Joe Garrett was sentenced by the court to a term of fifty years, Sam Irby to a term of forty years, and Lonnie Garrett to a term of thirty years, after separate motions for new trial had been filed and overruled. The defendants were represented by appointed counsel at the trial and they are represented here also by appointed, but different, counsel. In view of the fact that appellants’ brief raises only the question that venue was not sufficiently shown, our review of the evidence will be rather brief. Criminal Rule 28.02, V.A.M.R. The case was tried at New Madrid.

At about 6:00 p. m. on October 27, 1965, Isaac J. Barker, Larry Richards and R. L. Richards were returning to the home of R. L. Richards, after threshing beans; they were traveling south on State Highway 80 which will be referred to later. The two Richards brothers were in a pickup truck a short distance ahead of Barker, who was driving a two-ton truck loaded with beans. The pickup turned into the driveway of the R. L. Richards home (obviously to the left, or east) and Barker had slowed down, activated his turn light and “started to turn,” when an old model Buick containing three men “sideswiped” the left front side of his truck, knocked down the mailbox, ran across the road and across a ditch into a field, but eventually got back on the road and proceeded on south. The Richards brothers came back to see if Barker was hurt, Mrs. Richards came out of the front door and her husband told her to call the Highway Patrol; he jumped into his station wagon, backed it out, and followed the Buick. Barker and Larry Richards got the truck off the road, and could then see car lights to the south; they got into the pickup and went there; they found the old Buick and the Richards station wagon, and pulled in front of both cars. Irby and Lonnie Garrett were in the Buick, and Billy Joe Garrett was driving the station wagon or sitting in the driver’s seat. As Barker and Larry started to get out, Billy Joe opened the door of the station wagon and got out with a pistol which he pointed at them; he threatened to kill them because they had seen “the wreck,” ordered them into the hack seat of the station wagon, and pushed Barker as he got in. Irby then drove the station wagon, Billy Joe the pickup and Lonnie the Buick; they all proceeded south on Highway 80 for “approximately a half quarter of a mile” to a gravel road, on which they turned off, but they stopped "just as we turned onto the gravel road.” Barker testified that the gravel' road ran “west,” but we take judicial notice of the official highway map (as indicated later) which shows that the only gravel road leaving Highway 80 in that vicinity runs east, and we also note the undisputed testimony that they later drove east on that road.

At this point Billy Joe came over to the station wagon which Irby had been driving, and got in the front seat, sitting "sideways” beside Irby and holding his pistol pointed at Barker and Larry Richards in the rear; Lonnie Garrett stood at the side of the car. “They” asked “our names,” asked who was driving the truck and “told us if we identified them” they would kill us; Sam Irby told Larry to give him his money which he did, one $5 bill and one $1 bill; at this time Billy Joe was displaying the pistol, as before; Lonnie said, “Yes, get the money.” Barker showed his billfold and had nothing but change which no one seemed to want. Thereupon, the three engaged in some conversation about where they should go, but eventually all three vehicles drove east, for perhaps two or two and one-half miles, past the “Yellow Dog School.” As of that time it was said also that Irby had a shotgun or part of a shotgun, the witness being unable to describe it accurately. There was then some shifting of drivers, and a lot of miscellaneous conversation; Larry was instructed to drive the station wagon, and they all turned south on a gravel or dirt road. At just about that time a Highway Patrol car appeared and, after the cars made the turn, it passed the station wagon and intercepted the procession. The officer had obviously been called about the accident; he arrested Lonnie, and Irby succeeded in running away on foot after driving some distance farther south. Billy Joe instructed Larry, with suitable threats, to back up and proceed westerly, which he did. The route and details are inconsequential; Billy Joe still kept the pistol prominently displayed; he-finally let Larry and Barker out some miles to the southwest at a point west of Highway 61, and drove off in the station wagon, after holding “the gun on us” until he took over the driver’s seat. Irby was apprehended in East Prairie; Billy Joe in Ste. Genevieve.

As already indicated, the sole question briefed here is whether the venue was sufficiently established. We thus look to the pertinent authorities and the rules which they establish. As counsel for defendants states, venue must “be proved because the accused, under the Sixth Amendment to the Constitution, is guaranteed the right to a public trial by an impartial jury of the state and district wherein the crime shall have been committed.” Dean v. United States (CA 8), 246 F.2d 335, 338. See also Art. 1, § 18(a), Mo.Constitution, V.A.M.S., providing for a trial by an impartial jury of the county; and § 541.030, RSMo 1959, V.A.M.S. to the same effect. But as indicated in .Dean, supra, and in various other cases, venue is not an integral part of a criminal offense and need not be proven beyond a reasonable doubt or by direct evidence, but it may be inferred from all the evidence. In the following Missouri cases it was held directly that the venue might properly be found by the jury from circumstantial evidence. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Gow, 235 Mo. 307, 138 S.W. 648; State v. Ruckman, Mo., 222 S.W.2d 74; State v. Hartwell, Mo., 293 S.W.2d 313; State v. Cobb, 359 Mo. 373, 221 S.W.2d 745; State v. Haun, Mo., 324 S.W.2d 679; State v. Heissler, Mo., 324 S.W.2d 714. As stated in Haun, supra, the venue was sufficiently proved “if the jury reasonably could have found from facts and circumstances in evidence that the alleged crime occurred in that county”; and, as stated in Heissler, supra, in a slightly different form, the evidence is sufficient if the facts and circumstances “reasonably support the inference that the offense was committed in Greene County.” Moreover, our courts have held in several cases that on a question of venue they will take judicial notice of county lines, the locations of towns, of official highway maps and of the distances shown thereon. Heissler, supra; Haun, supra; State v. Ruckman, Mo., 222 S.W.2d 74; State v. Ashcraft, 342 Mo. 608, 116 S.W.2d 128; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Enochs, 339 Mo. 953, 98 S.W.2d 685.

The State contends that the question of venue was waived because defendants did not raise it at the trial, citing State v. Page, Mo.App., 186 S.W.2d 503, State v. Kenyon, supra, and Davis v. People, 83 Colo. 295, 264 P. 658. We shall not reach that question, for we hold that there was sufficient evidence from which the jury could make a finding of venue. The two Missouri cases cited do indicate that such an assignment of error must at least be raised in the motion for new trial. We need not elaborate further at this time.

We have referred to the official highway map of New Madrid County, of which we may take judicial notice. Missouri Highway 80, a bituminous road, crosses the eastern boundary of New Madrid County in its northern portion, proceeds due west for about two miles, then turns directly south, continuing in that direction for a little more than a mile and a half; at this point a gravel road runs off to the east, while the main road (80) turns directly west again and runs for approximately ten miles or more to the west line of the county. The junction with the gravel road just mentioned is at least two and one-half miles from the nearest edge of New Madrid County. The jury here was reasonably entitled to infer and find from this evidence the following: that the automobile collision described and the take-over by the defendants of the Richards station wagon and truck occurred on the north-south portion of Highway 80 as described; that the robbery occurred substantially at the junction of that highway and the gravel road already described, but just off of the highway ; and that such location was more than two miles inside New Madrid County. The subsequent meanderings of the parties are of no particular consequence here, for this is not a kidnapping charge, and the robbery had been completed. Instruction No. 2 required the jury to find that the offense was committed “in the County of New Madrid.” Thus, as stated in State v. Kenyon, supra, at 126 S.W.2d loc. cit. 254: “The instructions required the jury to find the appellant killed Dr. Davis in Howell County. They did so find. We are merely holding the evidence sustains that verdict.” The point raised on insufficient proof of venue is denied.

There is another feature of this case which has given us difficulty, although not briefed or specifically raised in any motion for new trial. We consider it under Criminal Rule 28.02 as a part of the record which we examine without assignment or specification. State v. Crow, Mo., 388 S.W.2d 817. It concerns the findings and sentences made and imposed by the Court under our Second Offender Act, § 556.280, RSMo 1959, V.A.M.S. That section provides, in so far as it .concerns our present question, that: “Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases.”

The State offered and the Court received various documents to show prior convictions of the defendants, both within and without the State of Missouri; these included records of the Missouri Department of Corrections, prison records from other states, and certified Copies of court records of convictions from Missouri and elsewhere. The exhibits were objected to .as not properly authenticated, as not “complete” exhibits and because the identities of the respective defendants with the records were not established. The objections were overruled and they have not been properly preserved upon this appeal; nor are any of the exhibits contained in the transcript. Irvin Smith, a Deputy Sheriff of New Madrid County, testified that he knew all three defendants and that he had taken each of them to the Missouri Penitentiary; further, that he got Billy Joe Garrett from the State of Louisiana; he also gave the approximate date of his stated transportation of each defendant; these dates ran from September, 1954, to June of 1959. The only record of any finding by the trial court under § 556.280 was the following, as to each defendant: “The Court, being sufficiently advised in the premises, finds that the defendant has sustained a prior conviction, and orders the defendant tried as a habitual criminal.” We conclude that this was not a sufficient compliance with the statutory requirement which is, as we construe it, that in order to make the act applicable the Court must find that the defendant had been convicted of and sentenced for one or more offenses punishable by imprisonment in the penitentiary and that he had subsequently been imprisoned, fined, paroled or placed on probation therefor (in the alternative, to accord with the evidence). See, State v. Crow, Mo., 388 S.W.2d 817, and State v. Hill, Mo., 371 S.W.2d 278. The present findings do not follow the statute, and we cannot rewrite it. Nor is it our function to make the findings here. The judgment and sentence as to each defendant must be reversed and set aside. The cause will be remanded in order that the trial court may bring before it each defendant, with counsel, at an appropriate time, for further consideration of the evidence already submitted on this issue, and of any such additional evidence as may be submitted, and thereupon to make appropriate findings as indicated in this opinion. If the trial court then finds (as to any defendant) one or more prior convictions, sentences, and imprisonment or parole therefor in accordance with § 556.280, it may proceed to grant allocution and to render judgment and sentence; if not, then as to that defendant or defendants a new trial must be ordered, for the jury would then be entitled to assess the punishment. Such procedure is discussed at length in State v. Hill, Mo., 371 S.W.2d 278, at pp. 282-283.

Except as indicated, we find those parts of the record which we examine under Rule 28.02 to be sufficient. The judgments and sentences as to all three defendants are hereby reversed and set aside, and the entire cause, as to all defendants, is remanded to the trial court for further proceedings in accordance with this opinion.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Calvin NEAL, Appellant.
    No. 51938.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Special Ass’t Atty. Gen., St. Louis, for respondent.
    Edwin D. Akers, Jr., St. Louis, for appellant.
   DONNELLY, Judge.

Appellant, Calvin Neal, was convicted of first-degree robbery by means of a dangerous and deadly weapon under § 560.120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment was assessed at imprisonment in the State Department of Corrections for a term of twenty years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. The record justifies the following recitation of facts: On May 26, 1965, at between 1:00 and 1:30 in the afternoon, two men entered the office of the Arrow Loan & Finance Company in the City of St. Louis. Each man was armed with a pistol and each wore a handkerchief across his face. They asked an employee where the money was located. She told them and the money was taken. The two men then backed out of the building, got into a black Cadillac automobile, and drove away. One of the employees of the loan company testified that appellant was driving the Cadillac as it left.

As the Cadillac was leaving the premises an employee of the loan company watched it drive west on Berthold Avenue and then got into another car and attempted to follow it. Within a few minutes after the robbery this employee found the car abandoned behind a warehouse building a few blocks west of the loan company on Berthold Avenue and informed a policeman who was in the area.

Another witness saw the Cadillac park across the street from his place of business and saw two or three persons get out of the car and get into another car which was parked nearby. The witness described the second car as being either a Dodge or a DeSoto and stated that this car drove off in an easterly direction along Berthold Avenue. This witness took the license number of the car and informed a police officer who came to the scene a few minutes later.

Sometime between 1:00 and 2:00 o’clock P.M. appellant was observed at the intersection of Clayton and Oakland near Hampton Avenue. He was walking west on Oakland near the intersection of Clayton with a woman and one other man. He hailed down a passing car driven by a man named Campbell and offered Campbell some money if he would take them back with a can of gasoline. At a filling station at the corner of Clayton and Oakland appellant bought a can of gasoline and he and his companions got into the car with Camp-'b'elTáñd" proceeded east on Oakland. About ten minutes later appellant returned to the station in the car driven by Campbell. His companions returned to the station in a DeSoto and asked the station attendant to apply the deposit which had been paid on the gas can toward the purchase of more gasoline for the DeSoto. Almost immediately thereafter a police car pulled into the station and appellant was arrested. The DeSoto automobile hurriedly left the station and drove east on Oakland. Shortly thereafter the Desoto was stopped by police officers and its three occupants (Dean Johnson, Gloria McIntyre and Guren Ken-ner) were arrested. They were conveyed to a police station in a cruiser and two pistols were found in the cruiser after it arrived at the station.

Three employees of the loan company identified appellant as one of the two men who came into the loan company office and committed the robbery.

Appellant first aserts error in the giving of Instruction No. 1 because said instruction submitted dual theories of conviction in the conjunctive. The instruction reads in part as follows:

“In this connection, you are instructed that if, upon consideration of all the evidence in this case, and in the light of the Court’s instructions, you find and believe from the evidence, beyond a reasonable doubt, that at the City of St. Louis, Missouri, on the 26th day of May, 1965, the defendant, Calvin Neal, either acting alone or jointly with another, and by
means of a dangerous and deadly weapon in the form of a pistol, and by force and violence to the person of Louis H. Budke, and by putting him in fear of an immediate injury to his person and against his will did rob, steal, take and carry away from the presence and possession of Louis H. Budke $589.14, * * * ”

Appellant concedes there was evidence to support the theory that Louis H. Budke was put “in fear of an immediate injury to his person” but asserts there is no evidence to support a finding of “force and violence to the person of Louis H. Budke.”

Appellant acknowledges the statement made in State v. Reeder, Mo.Sup., 394 S.W.2d 355, at 358, where this Court said: “The crime of robbery in the first degree may be committed by either of the two ways indicated (by violence to the person or by putting the person in fear of some immediate bodily harm), State v. Burns, Mo.Sup., 280 S.W.2d 119, 122 [3], or by both. It is not necessary that there be proof of both of the ways alleged, but only that there be proof of at least one. State v. Thompson, Mo.Sup., 299 S.W.2d 468. Where there is substantial evidence of the one but not of the other and both alternatives are submitted in the conjunctive there is no error, because in that case the instruction is more favorable to the defendant than the law requires. State v. Burns, supra, 280 S.W.2d 1. c. 122 [3].”

However, appellant cites Hardy v. St. Louis-San Francisco Railway Company, Mo.Sup., 406 S.W.2d 653, 659, and directs our attention to the present rule on civil instructions, as stated in MAI No. 1.02, at page 7, as follows: “The Committee believes that the jury should not be instructed on a theory of recovery or defense not supported by the evidence and that any such submission, whether in the conjunctive or disjunctive, should be reversible error. A theory of recovery or defense should not be submitted unless it can stand alone. The present practice has been a crutch which has done little but confuse by presenting imaginary issues for the jury’s determination.”

Appellant urges that a similar rule should be adopted in criminal cases. We need not and do not rule this question in this case. The evidence shows that a pistol was “held on” Louis H. Budke and “pointed at” Louis H. Budke. It is conceded that these acts put Louis H. Budke “in fear of an immediate injury to his person.” We hold they are also sufficient to prove “force and violence to the person of Louis H. Budke.” State v. Rose, Mo.Sup., 325 S.W.2d 485; State v. Eddy, Mo.Sup., 199 S.W. 186; State v. Dickens, Mo.Sup., 285 S.W. 445; State v. Wallace, Mo.Sup., 278 S.W. 663. The pointing of a dangerous and deadly pistol at a robbery victim constitutes “violence to his person.” Appellant’s contention is without merit.

Appellant next asserts that the trial court erred in admitting, over objection, evidence “concerning the flight and arrest of three alleged accomplices of appellant.” This evidence relates to the flight from the gas station in the DeSoto automobile by Dean Johnson, Gloria McIntyre and Guren Kenner, and their subsequent arrest. We recognize that this Court indicated in State v. Sykes, 191 Mo. 62, 79, 89 S.W. 851, 855, that evidence of the flight of a conspirator, on a trial of a co-conspirator, is irrelevant and immaterial, and stated in State v. Chernick, Mo.Sup., 280 S.W.2d 56, 59-60: “Generally it is said that after the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others.” However, as a result of the arrest of Johnson, McIntyre and Kenner, two weapons were discovered. “[T]he fact may always be shown that any one of co-conspirators was in possession of * * * the weapon or instrument with which the crime was committed.” State v. Tripp, Mo.Sup., 303 S.W.2d 627, 632. See also State v. Costello, Mo.Sup., 252 S.W. 727, 729. Appellant’s contention is without merit.

Appellant next contends the trial court erred in refusing to declare a mistrial when a witness for the State displayed a red wig to the jury. The record in this regard reads as follows:

“Q (By Mr. Walsh) I show you evidence envelope marked State’s Exhibit 16. Is that your signature on that, Detective Black?

“A Yes, sir.

“Q Will you tell the jury what is that in there?

“A It’s a wig.

“Q Would you take it out and show it to the jury?

“MR. AKERS: Your Honor, I am going to object to this. The Court already ruled this man can’t testify as to any of the belongings of McIntyre.

“Q (By Mr. Walsh) I will withdraw it. You marked that envelope? A Yes.

“Q That matter in there, did you see that removed from Gloria McIntyre? A Yes.

“Q You were present? A Yes.

“Q Will you take it out and show it to the jury? What is that, Officer? A That’s a wig.

“MR. AKERS: Your Honor, this is highly prejudicial, it is completely irrelevant; I move this be stricken, the jury instructed to disregard it. I also move for a mistrial. I think this is highly prejudicial.

“THE COURT: What is the purpose of this?

“MR. WALSH: These are all jointly indicted. The State is entitled to show this.

“THE COURT: Sustained.

“MR. AKERS: You are only trying one here.

“THE COURT: Sustained. Disregard it, members of the jury.”

The motions of appellant called for exercise of the court’s discretion. Its rulings are reviewable for abuse of that discretion. Abuse of discretion is not charged and we find none. We are of the opinion, that.the instruction by the court that the jury should disregard the evidence eliminated any possible prejudice in the minds of the jury. State v. Rose, Mo.Sup., 366 S.W.2d 308, 310; State v. Russell, Mo. Sup., 395 S.W.2d 151, 155. Appellant’s contention is without merit.

Appellant finally complains of portions of the closing argument of counsel for the State. Counsel for appellant, in closing argument, stated: “Is there any testimony in this record of what this man was wearing at that time? Not one bit. Did the State bring in the clothing? No. But they brought in everything else they could get their hands on. They had pistols, and money, and photographs, of all types and description. What about the clothing this man was wearing? No explanation. We haven’t seen it.”

Counsel for the State in response stated: “Now, all the matters Mr. Akers presented to you so ably, let’s take them in order.

“The clothing, on the strip search, the man told you they found $70.00 in his shoe. Obviously, you are entitled to use your common sense and figure what they did. They undoubtedly gave it back — ”

•Counsel for appellant stated: “Let’s look at another inconsistency. We have here an arrest, where the robbery was committed at 1:00, within half-an-hour the police have been at the Loan Company, they have taken into custody two automobiles, which they claim were the get-away cars. They have taken into custody two pistols. Were any finger-prints on any of those objects? Was this defendant’s finger-prints on any of these objects? We can only assume they were not. Believe me, if they were they would have had them in here. They had everything else. The vital things, clothing and finger prints, they might have been of considerable help in determining the guilt or innocence of this tnan. Where is that evidence ? The State has no such evidence.”

Counsel for the State in response stated: “MR. WALSH: Finger print evidence; This is an old story, ‘If the State had finger prints they would have brought them in.’ I want you gentlemen to use your own common sense. You who have served in the service of the United States, or are employed, you know when you go in the Navy, Army, Marines, or Coast Guard, or when you go to work, they don’t hand you a dirty steering wheel, or a dirty old car, and say, ‘Grab ahold of this, we want your finger prints.’

“MR. AKERS: I object, if your Honor please. Counsel is testifying, he is not arguing.

“THE COURT: Overruled.

“MR. WALSH: They don’t hand you a dangerous and deadly beat up, old weapon, being used around in stick-ups, or this automatic, and say, ‘Grab ahold of that. We want to get your finger prints.” This kind of stuff happens only in the movies, and James Bond pictures, and television, but you know when you go in for finger prints they hand you a nice, clean piece of paper, and the man very carefully takes your thumb and rolls it very carefully, and each index finger, in order to obtain a print. You don’t get those off of those dirty things, and pistols. If they could, they would have. The evidence would have been brought in.”

Counsel for appellant stated: “I submit to you the State might have made a good case against three people, but those people are not on trial. They have already pleaded guilty. The State admits it. They are coming in, asking you, with their own evidence, three people committed it and three pleaded guilty, now members of the jury, why the State wants you to convict man number 4.”

Counsel for the State in response stated: “And I’m sure each and every one of you recall, very vividly, Mr. Johnson, at one time, speaking on this witness stand, talking about three men and a woman.

“MR. AKERS: I object to that—

“MR. WALSH: I am sure none of you missed that.

“MR. AKERS: — and I move for a mistrial. There is absolutely no such evidence.

“THE COURT: Overruled.”

Dean Johnson, a witness for appellant at the trial, on cross-examination admitted that he, Johnson, participated in the robbery, and testified, in part, as follows:

“Q How many were with you?

“A Three men, one girl — two men.”

The statements made by counsel for the State were retaliatory in nature and our conclusion is that an abuse of the trial court’s discretion is not shown. State v. Cusumano, Mo.Sup., 372 S.W.2d 860, 866; State v. Fuller, Mo.Sup., 302 S.W.2d 906, 909, 910. This point is ruled against appellant.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    Nancy GERBA et al., Appellants, v. NEUROLOGICAL HOSPITAL ASSOCIATION, a Corporation et al., Respondents.
    No. 52475.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Donald E. Raymond, Kansas City, for appellants, Woods, Raymond & Raymond, Kansas City, of counsel.
    Jack G. Beamer, Robert J. Mann, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondents.
   HOLMAN, Presiding Judge.

In the first count of the petition plaintiff Nancy Gerba sought to recover damages in the sum of $150,000 for injuries she received while a patient in the hospital owned by defendant Neurological Hospital Association. Her husband, Pete Gerba, sought to recover a like amount, in the second count, for medical expenses and loss of services and consortium. A motion to dismiss plaintiffs’ petition was sustained. Plaintiffs have duly appealed from the ensuing judgment.

The suit was originally filed against the hospital association, the hospital administrator, and four other individuals who were alleged to have been partners engaged in the business of operating the hospital under a contractual arrangement. The only individual defendant properly served was Dr. Albert E. Fulton and the action was apparently abandoned as to the other individual defendants. Dr. Fulton joined with Neurological in the motion to dismiss.

The petition (which was filed June 22, 1966) alleged that the hospital was operated “for the treatment of human physical and mental illness of patients for payment of money by said patients. * * * That on or about the 25th day of June, 1961, plaintiff Nancy Gerba was suffering from a severe mental and emotional derangement and illness [which] caused said plaintiff to be likely to inflict injury upon herself and others thereby constituting a danger to her own well being as well as the well being of others, and for the treatment of such derangement and illness plaintiff was placed in the care and under the charge of defendants in the hospital aforesaid so operated by them. That defendants, acting as aforesaid, being advised that this plaintiff was suffering from such mental and emotional illness, undertook for money charged and agreed to be paid to furnish hospital facilities for the detention of plaintiff and treatment of such mental and emotional illness and did take charge of the person of plaintiff and did hold her at said hospital. That defendants knew that plaintiff Nancy Gerba was suffering from the mental and emotional illness aforesaid and knew or should have known that by reason of her said deranged condition she was likely to cause injury to herself, but that defendants carelessly and negligently failed to furnish supervision and surveillance over the person of plaintiff and permitted her to be wholly unattended and alone and without restraint thereby enabling her to inflict the severe personal in1 juries to herself hereinafter set forth. That as the direct result of the carelessness and negligence of the defendants aforesaid, plaintiff Nancy Gerba, while alone, unattended and unrestrained and acting under the compulsion of her mental and emotional illness aforesaid did gouge out both of her eyes thereby rendering herself totally and permanently blind.”

The motion to dismiss was based on two grounds. They were (1) that “since said alleged acts occurred more than two years prior to the filing of this action they are barred by the Missouri Revised Statutes, § 516.140, relating to limitation of actions against physicians, surgeons, dentists, roent-genologists, nurses, hospitals and sanitariums for damages for malpractice, error or mistake” and (2) “defendant Neurological Hospital Association of Kansas City, as a non-profit organization established for charitable, eleemosynary and teaching purposes, is immune to suits for personal injuries alleged to have been suffered by plaintiff Nancy Gerba, while a patient in defendant hospital due to the negligence of defendants’ agents and servants.”

The trial court sustained the motion to dismiss on both grounds. Since we have concluded that the action is barred by the statute of limitations we will give no further consideration to the second ground of the motion.

The relevant portion of § 516.140 (statutory references are to RSMo 1959, V.A.M. S.) is that “[a]ll actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of.” Our task in this case is to ascertain the meaning of said section primarily as it relates to hospitals and sanitariums. It is the contention of plaintiffs that the quoted statute does not apply because this is not a malpractice action but is an action based on “ordinary negligence” not involving professional misconduct. Defendants, on the other hand, claim that the action is barred by the statute since the statute is very general and inclusive and is applicable to all actions against hospitals for malpractice, error or mistake, or neglect; that those descriptive words would clearly include the acts and omissions alleged in the petition.

“Where the meaning of a statute is clear there is no occasion for its construction and the courts will apply it as written. However, when the meaning is doubtful it becomes the duty of the courts to construe it. It is elementary that the primary rule to be applied in the construction of a statute is to ascertain and give effect to the legislative intent.” Foremost Dairies, Inc. v. Thomason, Mo.Sup., 384 S.W.2d 651, 659. We consider it helpful to consider the definition of various words contained in the statute, as given in Webster’s Third New International Dictionary. Malpractice: “a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them * * Error: “An act that through ignorance, deficiency, or accident departs from or fails to achieve what should be done.” Mistake: “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention: an unintentional error.” Neglect: “to fail to attend to sufficiently or properly: not give proper attention or care to.”

When the statute is considered as a whole, and especially with reference to the meaning of the specific words here involved, we think it clearly means that all actions are barred thereby in which damages are sought for any malpractice, error, mistake, or neglect in the care, custody, or treatment of a patient by a hospital. We find it difficult to understand plaintiffs’ contention that there is a difference between “ordinary negligence” and negligence relating to malpractice. We do agree that if a patient was injured by a fall when he stepped on a slick foreign object which had been left on the floor of the hospital the statute in question would not likely be considered applicable. However, if the act or omission relates to the care, custody, or treatment of the patient, we think, as stated, that the statute would apply. In this case it is alleged that plaintiff was placed in the hospital for detention and treatment.

■ In considering the question before us it is perhaps desirable to indicate our view that in the handling of patients suffering from mental disease the matter of custody and restraint is inextricably connected with the subject of the treatment to be administered. It would appear that the only certain way to keep a conscious mental patient from injuring himself or someone else would be to bind his hands and feet. That method of restraint, however, would, not be tolerated except for brief periods of time in extreme cases. “[T]he care required of a hospital includes giving such care to a patient as the hospital knew or in the exercise of reasonable care should have known was required. * * * A hospital is not an insurer of a patient’s safety and is not required to guard against that which a reasonable person under the circumstances would not anticipate. * * * [T]he objective is treatment not merely incarceration. Treatment requires the restoration of confidence in the patient. This in turn requires that restrictions be kept at a minimum. Risks must be taken or the case left as hopeless.” Baker v. United States, D.C., 226 F.Supp. 129, 132, aff’d 8 Cir., 343 F.2d 222. See also Gregory v. Robinson, Mo.Sup., 338 S.W.2d 88 [4].

No case has been cited (and we have found none) in which the precise question here involved has been determined. Plaintiffs strongly rely on the case of Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743, which apparently involved the same hospital as in the instant case. In that case the plaintiff recovered damages because his wife (with a record of previous attempts) committed suicide by hanging while a patient in the hospital. Plaintiffs point out that in Stallman we said that “this is not, strictly speaking, a malpractice case. There is neither claim nor proof of improper diagnosis or treatment * * 260 S. W.2d 748. However, Stallman did not involve any question concerning the application of the statute of limitations. The foregoing statement was made as a part of the discussion preceding our holding that it was not necessary for the plaintiff to produce expert testimony in order to make a submissible case of negligence. We do not think the quoted statement supports the contentions of plaintiffs in the case before us.

In view of what we consider to be the plain meaning of § 516.140, we hold that plaintiffs’ claims, on the face of the petition, are barred by said statute and hence that the court did not err in sustaining defendant’s motion to dismiss.

The judgment is affirmed.

All concur.