author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Thomas Wendell STUART, Appellant.
    No. 52265.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Mo., Norman Humphrey, Jr. Asst. Atty. Gen., Independence, Mo., for respondent.
    Neale, Newman, Bradshaw, Freeman & Neale, Thom G. Field, Springfield, Mo., for appellant.
   STOCKARD, Commissioner.

Defendant was convicted by a jury of the offense of possessing an “apparatus, device or instrument for the unauthorized use of narcotic drugs.” § 195.020 RSMo 1959, V.A.M.S. The court found that defendant had previously been convicted, sentenced and imprisoned for a felony and sentenced him to imprisonment for a term of three years.

Prior to trial defendant filed a motion to suppress evidence, and he alleged therein that certain items had been obtained from his possession by the police in an unlawful search and seizure because (1) they were “illegally seized * * * without a valid search warrant,” and (2) the police officers “illegally entered the premises where * * defendant was a lawful occupant having permission to be there and then being present with the permission of the owner of such premises.” The only point presented by defendant on this appeal is that the trial court erred in overruling this motion to suppress evidence.

It has long and uniformly been the procedural rule in this state that the assertion of an unlawful search and seizure should be raised by motion to suppress the evidence filed prior to trial, State v. O’Brien, Mo., 252 S.W.2d 357, 359, certiorari denied 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359; State v. Garrison, Mo., 305 S.W.2d 447, 451, with the possible exception where the accused “had no reason to anticipate the evidence would be introduced and was surprised.” State v. O’Brien, supra. “The reason for this rule is that the trial court should not be required to stop during the course of a trial to determine a collateral issue as to the legality of the means by which the prosecution obtained its evidence.” 29 Am.Jur.2d Evidence § 426. If the motion to suppress the evidence is overruled, the court then at the trial only determines whether the confiscated evidence is competent and relevant. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. Holt, Mo., 415 S.W.2d 761. At the hearing on the motion to suppress evidence, the defendant has the burden of presenting evidence to sustain his contentions. As stated in State v. Hepperman, supra, “Not only is the legality of a seizure properly determined by a motion to suppress the evidence but the burden is on the defendant to offer evidence and affirmatively demonstrate the illegality of the search and seizure. The motion does not prove itself.” See also State v. Holt, supra.

At the hearing on the motion to suppress in this case defendant introduced evidence showing the following facts and circumstances. Faith Allen, who was crippled or in some manner handicapped, and Jackie McDaris lived together in an apartment at 930 W. Walnut Street in Springfield, Missouri. Miss Allen paid Jackie “for taking care of her,” and from that money Jackie paid the rent on the apartment. They had lived in the apartment about two or three weeks prior to September 5, 1965. When they moved in, defendant also moved in but according to Jackie “nobody told him he could.” He stayed there “fairly continuously,” apparently with permission of Faith Allen. On September 5, 1965, Jackie returned to the apartment and found defendant, Donald Holt, and Cathy Cave in the kitchen “getting the stuff” ready. She asked them to leave, and when they did not she had her brother, Jasper Goddard, call the police. In response to this call three police officers met Jasper who told the officers “that there was a man up in his sister’s apartment taking dope, and that she had sent him down to get * * * the police.” Police officers Smith and Hawkins followed Jasper into the building and walked down a hallway which served all the apartments. The record is not clear if there was a second hallway which served only the apartment of Jackie and Faith, but the door to the kitchen of their apartment was ajar. Officer Smith looked through this door and saw Holt with “one hand to the other arm” and saw defendant “standing at the table .* * * with a rag wrapped around his arm and filling a syringe from a pan on the table” and he saw the “paraphernalia on the table.” Jasper showed the officers his sister’s apartment and entered it ahead of the officers who entered and arrested defendant.

The officers had no search warrant. Therefore, the issue is whether, as defendant asserted in his motion to suppress evidence, the police officers “illegally entered the premises” where defendant was lawfully present with “the permission of the owner of such premises.” For the reasons subsequently stated we conclude that the trial court properly overruled the motion to suppress the evidence.

Defendant relies primarily on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, to demonstrate that he had the requisite “standing” to challenge the legality of the search and seizure. However, as pointed out in the footnote to the annotation following that case in 78 A.L.R.2d at p. 250, the question whether and to what extent the owner or possessor of premises may consent to a search, and thereby override any objection which may be made by one who is on the premises with consent, did not arise and was not discussed in the Jones case. Defendant was not shown to have any pos-sessory interest in the apartment. He was there only with the permission of Faith Allen. However, Jackie McDaris did have a possessory interest. She and Faith occupied the apartment together, and she paid the rent from money received from Faith in payment for taking care of her. Jackie had her brother call the police to the apartment. This request by Jackie through her brother had the same legal effect as if she personally had contacted the police and requested them to come to her apartment. Regardless of whether defendant, by reason of his presence in the apartment with permission from Faith, had the “standing” to object to an entry by the police officers in the absence of an invitation to the police from Jackie, such “standing” cannot override the right of the owner or possessor to invite the police to enter the apartment. When the police officers entered the kitchen of the apartment they did so at the express request and invitation of Jackie, and defendant who was present only with the permission of one of two persons who had a possessory interest is not entitled to assert that the police officers unlawfully entered the kitchen. See the cases cited in the annotation in 31 A.L.R.2d at p. 1081 et seq. It has repeatedly been held that one who has equal authority over premises may authorize a search of them, Drummond v. United States, 8 Cir., 350 F.2d 983, certiorari denied Castaldi v. United States, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542; United States v. Sferas, 7 Cir., 210 F.2d 69, certiorari denied Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L. Ed. 1086; Roberts v. United States, 8 Cir., 332 F.2d 892, and certainly such person may authorize an entry onto the premises contrary to the wishes of another who has far less authority. See also, Maxwell v. Stephens, 8 Cir., 348 F.2d 325; Burge v. United States, 9 Cir., 342 F.2d 408; and Teasley v. United States, 9 Cir., 292 F.2d 460. After the police were lawfully in the apartment they saw the defendant engaged in the commission of a felony in their presence, and for that reason the arrest of defendant was lawful, and the seizure of the items constituting apparatus, devices, or instruments for the unauthorized use of narcotic drugs was authorized. State v. Jefferson, Mo., 391 S.W.2d 885. What constituted a lawful entry did not become a trespass or unlawful because after such entry the officers saw unlawful activity on the part of defendant. People v. Cahan, 150 Cal.App.2d 786, 310 P.2d 661.

This case does not present the factual situation where the defendant as a roomer or tenant was given exclusive possession of a room in an apartment or building, and the owner or lessor invited the police to enter that room. See Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. Defendant was in the kitchen of the apartment, and it was there that his illegal activity was being carried on and where the items subsequently seized by the police were located. The factual situation in this case is comparable to that in Burge v. United States, supra, where the police were invited into an apartment by the owner and seized items belonging to a guest located in the common bathroom of the apartment. The trial court properly overruled the motion to suppress evidence.

The review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the information is sufficient; that defendant was represented by counsel throughout the trial and on this appeal; that the verdict is in proper form and 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.

FINCH, P. J., and STORCKMAN, EAGER and DONNELLY, JJ., concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Larry Chucky STOCKDALE, Appellant.
    No. 52494.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Glen C. Schomburg, Sp. Asst. Atty. Gen., Kirkwood, for respondent.
    J. Whitfield Moody, J. Arnot Hill, Kansas City, for appellant.
   HOUSER, Commissioner.

Larry Chucky Stockdale was charged with stealing $7.00 from the person of Gerald L. Spaulding. Section 560.156, subsection 2; § 560.161, subsection 1 (2) ; subsection 2, V.A.M.S. Convicted by a trial jury and sentenced to 5 years in the custody of the department of corrections, he has appealed from the judgment of conviction. Defendant was represented throughout the trial by appointed counsel and in this court by representatives of The Legal Aid & Defender Society of Greater Kansas City.

The only point relied on in appellant’s brief and oral argument on appeal is that the court erred in submitting the case to the jury because the defendant was not proven guilty beyond a reasonable doubt. The sufficiency of the evidence to sustain a conviction having been challenged, we will review the evidence in detail. In this determination we consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom and reject evidence to the contrary. State v. Reagan, Mo.Sup., 328 S.W.2d 26; State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609, and cases cited.

Viewed in this light the jury could have found the following facts: On February 18, 1966 Gerald L. Spaulding, a 23-year-old white man, was walking south on the sidewalk on the west side of Troost Avenue, between 31st Street and Linwood Boulevard in Kansas City. Two young negro males approached Spaulding from the south. They were the defendant and another who was unnamed in the testimony, but whom we will now christen “No. 2” for purposes of identification. The two negroes did not turn aside but walked right into Spaulding —bumped into him. One of the negroes called Spaulding a “white bastard.” The negroes then walked Spaulding backwards into the breezeway entrance to an adjacent business house, behind a glass showcase. No. 2 struck Spaulding in the face, said he had a gun, put his hand in his pocket, and asked Spaulding for his money. Spaulding handed his billfold to No. 2, who removed the money and threw the billfold on the ground. Spaulding then struck back, whereupon No. 2 struck Spaulding two more blows in the face. Spaulding’s nose was cut, his glasses bent and damaged, his right eye was blackened and he became “kind of blurry or fuzzy." While these events transpired defendant was standing 3 or 4 feet from Spaulding and next to No. 2. About this time another white man, 30-year-old Buddy Dean Newman, who had been walking south, following Spaulding at a distance of some 35-40 feet behind him, and who had seen the encounter, came up to the entrance to the store and started to walk by on the street side of the sidewalk. Defendant, who was then standing on the sidewalk in front of the door, came out toward Newman, saying something which Newman did not understand. According to another witness, there were three negro youths in the store entrance, and one of them, referring to Newman, said “Let’s get him,” and defendant said to Newman as he approached him, “Hey, you white punk.” Newman paused, turned and looked at defendant, who turned as though he was backing off. Newman turned around to go on. After Newman had taken about two steps defendant came up on Newman’s side and took a swing at him, trying to strike him in the face. Newman blocked the blow by raising his right arm, and was hit on the arm. Newman stood there, facing defendant, who darted back over to No. 2. Newman looked back into the area between the showcase and the front door of the store, saw Spaulding and noticed that he was bleeding from the nose. Newman proceeded on south, until he heard defendant say “Hey, you bitch.” Defendant was directing this language to Sharon Gilmore, a young white woman who was walking south at the place in question, behind Newman. Defendant approached Miss Gilmore, pulled her scarf “clear down,” grabbed her by the hair on the back of her head, called her a “white bitch,” and evidently tried to stop her. She screamed, swung around, and ran south to a corner drug store. Newman accompanied her to the drug store, where they called the police. Newman returned to the scene to find the “other boy they beat up” because he knew that he was bleeding from the nose. Spauld-ing was struck again in the face and then the negroes fled the scene. Two negroes were seen running north on Troost by a police officer who had been attracted to the scene by hearing a loud curse word and noises. One of the negroes dropped his hat, ran back and grabbed it, picked it up and started running again. The officer, unable to apprehend the fleeing negroes, received a call to go to the scene of the crime . There he talked to a man and a woman, got a description of the negroes which corresponded with his own description. He put the description on the radio, by way of car-to-car communication. Another officer in the area who had picked this up on his radio observed two negroes running east on Linwood Boulevard. They tried to get into a cab which was stopped for a traffic light. Refused entry into the cab, they walked on east. Arrested, they were later observed by the first police officer, who identified defendant as the one who lost and retrieved his hat while fleeing from the scene of the crime. A $5 bill and two $1 bills were found wadded up in a handkerchief in the pocket of the suspect arrested with defendant. The two negroes were seen by the arresting officer, walking north on Troost at 34th Street, approximately 45 minutes prior to their arrest. Both in a police lineup and at the trial defendant was identified by Newman as one of the two negroes who accosted Spaulding on the sidewalk and as the “other” one present when Spaulding was assaulted, and as the one who “took a swing” at Newman and who pulled the girl’s hair. Miss Gilmore also positively identified defendant in the same manner.

Appellant contends that the foregoing evidence does not sufficiently connect him with the one who actually committed the theft (No. 2) because the victim, Spaulding, testified as follows: that he was unable to identify defendant as the man who was associated with No. 2; that he was not sure about the identification of the man who struck him; that he was not able to identify anyone; that he could not make a positive identification; that he was not able to-identify defendant as the “other man that was on the sidewalk,” and that “Later on I was positive it wasn’t him.”

It is not essential to a conviction of theft from the person that the victim identify the accused as his assailant. A positive identification of the defendant by other witnesses is sufficient. “The testimony of a single witness, if believed by the jury beyond a reasonable doubt, is sufficient to establish the identity of the defendant in a criminal prosecution since the credibility of the witness and the weight of the evidence is for the jury.” State v. Williams, Mo. Sup., 376 S.W.2d 133, 136. The fact that the victim rejects the defendant as a participant in the commission of the crime does not exonerate the defendant, where he is identified by others as the offender, and the circumstances in evidence strongly show his participation. In State v. Rowland, 174 Mo. 373, 74 S.W. 622, the prosecuting witness in a robbery charge testified that defendant did not have anything to do with robbing him. This statement was held not conclusive upon the state, under the circumstances, where the evidence strongly showed the contrary, and satisfied the court that defendant was one of the two men concerned in the robbery, and where the victim was rendered unconscious before his pockets were turned wrong side out. The jury, believing the other witnesses on the question of the defendant’s identity might conclude that the victim was telling the truth in all other respects about the occurrence but that he was mistaken about the identity of the participants in the crime. The identification of the defendant in this case is sufficient. In addition to the identification made by the police officer there were two other witnesses who positively identified defendant as one of the two men who first accosted Spaulding; who was present and in close proximity to the prime actor when Spaulding was forced into the entryway and who acted as a lookout while Spaulding was being assaulted and deprived of his money; who apparently stood at the sidewalk to ward off intruders; who attacked two passersby, and who fled with the prime actor.

Appellant further contends, on the basis of State v. Castaldi, Mo.Sup., 386 S.W.2d 392, that the state failed to prove on the part of defendant any form of active association with or participation in the . actual theft. We cannot agree. In Castaldi the state proved merely defendant’s presence at the scene of the crime, an opportunity to commit the crime, suspicious circumstances, and flight. He had a reasonable explanation for the flight. There was no proof that the accused associated himself with the venture. There was nothing to show any form of active participation. Here the defendant actively participated in the commission of the crime, and his association with the-venture from beginning to end implicates him as an aider and abetter. The defendant’s presence at the scene of the commission of a felony by another, while insufficient by itself, is evidence to be considered in determining whether the defendant was guilty of aiding and abetting the crime. State v. Ramsey, Mo.Sup., 368 S.W.2d 413 [4]. Evidence fairly showing any form of affirmative participation, or that the accused in any way aided, abetted or encouraged another in the commission of a crime, is sufficient to support a conviction. Idem. As stated in Ramsey, no physical act of participation is necessary in many instances. Here, however, there is substantial, indeed overwhelming, evidence of physical acts of participation by this defendant, who* participated in the original assault when the two negroes bumped into the victim on the sidewalk; who helped to walk the victim backwards into the entryway where the actual theft was accomplished; who was within 3 or 4 feet of No. 2, during the time No. 2 was hitting the victim in the face,, threatening him with the appearance of being armed and taking the money; whose availability and readiness to assist in the perpetration of the offense were clearly demonstrated by the testimony that defendant posted himself at the entrance to the sidewalk and insulted and assaulted two passersby who happened along at the time the theft was in progress and who if permitted to pass by unmolested might conceivably have sounded the alarm and interrupted the proceedings. These facts, in conjunction with defendant’s flight in the company of No. 2, the prime actor, demonstrate defendant’s association with the principal and direct participation in the theft beyond a reasonable doubt.

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

Judgment affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. John Andrew BENISON, Jr., Appellant.
    No. 52691.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender, Society of Greater Kansas City, Kansas City, for appellant.
   HENLEY, Judge.

John Andrew Benison, Jr., appeals from an order overruling his motions (1) to withdraw his plea of guilty, Criminal Rule 27.-25, V.A.M.R., and (2) to vacate and set aside his sentence, Criminal Rule 27.26, V.A. M.R.

He was charged by information filed January 27, 1964, with robbery in the first degree by means of a dangerous and deadly weapon. Section 560.135, RSMo 1959, V.A. M.S. On the same day he was formally arraigned and counsel was appointed to represent him. A plea of not guilty was entered and the cause was set for trial for March 9. Thereafter, on April 9, 1964, he appeared in court with counsel and withdrew the plea of not guilty, and entered a plea of guilty. On the same day he was sentenced to imprisonment for twenty years in the custody of the Department of Corrections.

On September 27, 1966, he filed the above-mentioned motions, each alleging essentially the same grounds, viz:

“(1) Movant was not represented by counsel at his preliminary hearing in violation of his rights under the Sixth Amendment to the United States Constitution.

“(2) Movant was unconstitutionally denied a proper preliminary hearing in magistrate court in that he was charged with a capital offense and no transcript of evidence was made.

“(3) The information is fatally defective.

“(4) That the circumstances of this cause cannot support a conviction for 1st Degree Robbery, as charged in the information.

“(5) Ineffective assistance of counsel.”

Thereafter, on October 3, 1966, the court entered orders (1) appointing the Legal Aid and Defender Society of Kansas City to represent defendant in the proceedings on these motions, (2) directing that defendant be returned to Kansas City for a hearing, and (3) setting the hearing for October 28, 1966. On that date defendant appeared in person and with his counsel, J. Arnot Hill of the Legal Aid and Defe'nder Society. Evidence was heard, and thereafter the court entered its order overruling the motions in accordance with findings of fact and conclusions of law. Defendant is represented on appeal by Mr. Hill; he has filed a brief and presented oral argument in defendant’s behalf. We affirm the order of the trial court.

In addition to the allegation in his motions that he was denied counsel at his preliminary hearing in violation of constitutional rights, he also contended, at the hearing, that those rights were again violated by denying him counsel at his arraignment. The court noted in its findings of fact that defendant recently had filed a verified supplemental motion alleging violation of constitutional rights by denial of counsel at arraignment, and considered and ruled this allegation, along with the others, in its findings, conclusions and order.

His arraignment was very brief. It consisted of: (1) an inquiry by the court whether he had a lawyer and, if not, whether he had made arrangements to employ a lawyer, to which he replied that he did not have a lawyer and did not have funds with which to employ one; (2) the court’s advice that it would appoint a lawyer to represent him; (3) reading of the information to defendant; (4) the court’s entry of a plea of not guilty for defendant. During these proceedings, defendant, in effect, stood mute, except to reply to the court’s inquiries about counsel, and to ask when appointed counsel would see him. He did not plead “guilty” or “not guilty”; the not guilty plea was entered for him by the court as required by Criminal Rule 25.04, V.A.M.R., and § 546.020, RSMo 1959, V.A. M.S. The court immediately appointed counsel to represent him, as required by Criminal Rule 29.01, V.A.M.R., and no further proceedings were had until defendant next appeared in court with counsel on April 9. During the arraignment proceeding defendant made no statements or admissions pertaining to any part of the charge against him; as stated, he, in effect, stood mute. At this stage of the proceedings he was not required under the laws of this state to assert any right, plea or defense to preserve any statutory or constitutional right'; no possible rights, pleas or defenses were lost to him at these proceedings ; they were preserved inviolate, and no prejudice to defendant resulted.

The rule requiring counsel upon arraignment is not inflexible; it is not required where, as here, no later prejudice could possibly result from the absence of counsel. The absence of counsel during arraignment is not, per se, a violation of the Sixth Amendment. State v. Owens, Mo., 391 S.W.2d 248, 254 [9]; United States ex rel. Caccio v. Fay, (Second Circuit), 350 F.2d 214, 215.

His contention that his rights under the Sixth Amendment were denied because he was not represented by counsel at his preliminary hearing is also denied. This court has held in several recent cases that neither the federal or state constitution, nor the statutes of this state require the appointment of counsel for an accused at a preliminary examination. See: State v. Engberg, Mo., 391 S.W.2d 868, 870 [3,4]; State v. Owens, supra; State v. Turner, Mo., 353 S.W.2d 602, 604 [6-8] and cases there cited. The cases cited by defendant are not applicable under the facts shown by this record.

In the second point briefed he contends that his preliminary hearing was illegal and that he was denied a proper preliminary examination, because he was charged with a capital offense and no transcript of the evidence adduced at that hearing was made. Criminal Rule 23.12, V.A. M.R., and § 544.370, RSMo 1959, V.A.M.S., provide that evidence given at a preliminary-hearing shall be reduced to writing “ * * In all cases of homicide * * A transcript of the evidence is required in no other cases, capital or otherwise. The point has no merit and is overruled.

His next point is that the information is fatally defective in that it does not allege all essential elements of first degree robbery. Specifically, he charges that the information fails to: (1) “ * * * [allege] the ownership of the articles and the money that was allegedly stolen * * (2) “ * * * [allege] that the injured party was the owner or the agent in charge thereof.” He further charges that the information is fatally defective, because it alleges that the articles stolen were used to make the assault.

The allegations of the information refute the charges that it failed to allege ownership and that the “injured party” was the owner or agent in charge of the property. The information charges the taking of the property “ * * * of the said Henry Christman, from the person and in the presence and against the will of the said Henry Christman, * * * by force and violence to the person of the said Henry Christman * * *.” The information alleges all essential elements of the crime sought to be charged, and clearly informed him of the nature and cause of the accusation against him. McCarthy v. Eidson, Mo., 262 S.W.2d 52, 53-54, and cases there cited.

There is no merit in his contention that the information charges that the articles stolen (two revolvers and $1,800.00 in money) were used to make the assault and for that reason was fatally defective. The information charges an assault by means of “ * * * a dangerous and deadly weapon, to-wit: pipe wrench and fists * * * ” and the taking of the described property. Although it might appear to the untrained eye that the information charges an assault by use of the articles stolen it does not do so. The form of the information is archaic and its continued use is not to be commended, but it does inform defendant of the nature and cause of the accusation against him. Actually, defendant’s attack upon the information in this particular is no more than an objection to its form; not that it lacks an essential element or that it fails to inform him of the offense with which he was charged. The form of the information does not in any respect tend to prejudice substantial rights of defendant, and such objection as he may have to alleged imperfections in its form should have been made before his plea of guilty. Tucker v. Kaiser, Mo., 176 S.W.2d 622, 624 [3]; § 545.030, RSMo 1959, V.A.M.S.

The fourth ground in his motion is “That the circumstances of this cause cannot support a conviction for 1st Degree Robbery * * *.” From the same numbered point in his brief we learn that by “circumstances” he means that the evidence does not support the charge, because, he says, it is his understanding that the money and articles stolen were not the property of Henry Christman, as charged, and that Christman was not the agent of the owner but was the night watchman or janitor.

Counsel states with admirable frankness that the cases cited on this point in defendant’s motion to vacate do not support the point. We agree. The motions filed by defendant are not available as vehicles to be used for review of a claim that the evidence does not support the charge. State v. Wiggins, Mo., 360 S.W.2d 716, 718 [2]; State v. Thompson, Mo., 324 S.W.2d 133, 135-136 [4].

Defendant’s last point briefed is that he was denied effective assistance of counsel before and at the time of his plea of guilty in violation of rights guaranteed by the state and federal constitutions.

At the hearing on the motions defendant testified: “It was my understanding that my court-appointed counsel was principally a civil lawyer; therefore, I didn’t feel that he would be competent to defend a criminal case.” This statement is essentially the sole basis of his charge that he was denied effective assistance of counsel. He further testified that counsel conferred with him several times at the county jail before entry of his plea of guilty; that counsel told him he had had access to all of the state’s files on the evidence it had available to produce at his trial, and what that evidence would be; that he was afraid the death penalty might be assessed and he decided to plead guilty after his counsel informed him that state’s counsel would recommend a sentence of twenty years should he plead guilty. Forrest W. Hanna, court-appointed counsel representing defendant at the time of his plea of guilty, testified to his experience at the bar, and further testified that he had conferred with defendant on several occasions at the jail before his entry of a plea of guilty; that he informed defendant of his examination of the state’s files and what evidence he had learned the state had available to produce at a trial; that he discussed this 'evidence with defendant in detail, one bit of evidence being that the victim of the robbery had been so beaten that he probably would remain “a mere vegetable,” alive but unable to communicate; that he had researched several questions pertaining to the admissibility of evidence he knew the state possessed; that he discussed the facts and the applicable law with his law partners; that he was then, and still is, of the opinion that the state could make a strong submis-sible case against defendant, and that his punishment at the hands of a jury would have been more than that which state’s counsel had recommended; that he advised defendant of all facets of the charge and what the punishment could be under the law.

The court found that Mr. Hanna was an able trial attorney with experience in the trial of civil and criminal cases; that he had taken a deep personal interest in defendant, had informed him of the evidence available against him, had advised him of his rights, and had represented him ably and effectively. The findings of the trial court are to be upheld unless clearly erroneous. State v. Richardson, Mo., 347 S.W.2d 165, 173 [11]. The court concluded that defendant was not denied effective assistance of counsel. We have reviewed the evidence and reach the same conclusion.

The order overruling the motions is affirmed.

All concur.

      . Hamilton v. State of Alabama, 368 U.S. 62, 82 S.Ct. 157, 7 L.Ed.2d 114; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.

      . State v. King, 174 Mo. 647, 74 S.W. 627; State v. Rutledge, 304 Mo. 32, 262 S.W. 718; State v. Casey, Mo., 247 S.W. 114; State v. De Witt, 191 Mo. 51, 90 S.W. 77.


author: WELBORN, Commissioner.

text:
    George DIETSCH and Bernice Dietsch, Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Missouri, Defendant-Respondent.
    No. 52071.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Padberg & Raack, Charles P. Todt, St. Louis, for appellants.
    Joseph B. Moore, St. Louis County Counselor, Don R. Williams, Associate County Counselor, Clayton, for respondent.
   WELBORN, Commissioner.

This is an action to recover $1,800 expended by appellants in defense of a condemnation proceeding which the respondent St. Louis County abandoned. The court, on a trial without a jury, found for the county and this appeal followed.

The appellants, George and Bernice Dietsch, were the owners of a two-acre tract at 710 Josephine Drive in St. Louis County. They resided there and also grew flowers commercially on the property.

In July, 1957, St. Louis County employed two appraisers to make a “windshield” appraisal of the Dietsch property. A “windshield” appraisal was described as one in which the appraiser merely drives by the property and estimates its value without actually going on the property. The “windshield” appraisals, one of $20,000 and the other of $25,000 for the Dietsch property, were transmitted to “St. Louis County’s representatives.”

On May 7, 1958, the St. Louis County Council passed an ordinance, authorizing the Board of Public Works and the County Counselor to acquire three tracts, including the Dietsch property, for park purposes.

The St. Louis County Counselor’s office employed two appraisers to make a complete appraisal of the Dietsch property. They did so and reported values of $66,100 and $66,400. The appraisers transmitted their reports to Assistant County Counselor Finot in August, 1958.

On August 22, 1958, Finot went to see Mr. Dietsch and informed him that an offer of $66,700 would be made for his property. Mr. Dietsch heard nothing further and on April 9, 1959, he wrote an unidentified official of St. Louis County, offering to sell the property for $78,000. A few days later, Mr. Dietsch received from Herbert G. Poertner, St. Louis County Public Works Director, a letter dated April 14, 1959, in which Poertner stated that St. Louis County could not accept Dietsch’s offer and that “the maximum which St. Louis County can offer, which is ten percent above the average of the two appraisals, is $23,650.” Mr. Poertner asked for a reply within ten days to the offer of $23,650. Dietsch rejected the offer and heard nothing further from the county. On June 1, 1959, he wrote Poertner to find out “where we stood.” Poertner replied that the matter was out of his hands and that Mr. Finot was handling it. Dietsch attempted unsuccessfully to get in touch with Finot. On October 14, 1959, St. Louis County, by its County Counselor, filed suit in the St. Louis County Circuit Court to condemn the Dietsch property.

Dietsch employed an attorney who participated in the hearing on the condemnation petition. An order of condemnation was made, the court finding “that St. Louis County had endeavored to agree with the defendant on the proper compensation, if any, to be paid as damages for the property and rights sought to be appropriated, but it is unable to agree thereon; that the plaintiff has complied with all the requirements of the law.”

Commissioners were appointed to assess damages. Dietsch’s attorney participated in hearings before the commissioners and Dietsch employed two appraisers who examined his property and testified to a value in the vicinity of $67,000. The commissioners’ report, filed January 27, 1960, fixed Dietsch’s damages at $69,000, including $2,000 for growing plants. St. Louis County filed exceptions to the commissioners’ report on February 2, 1960.

On April 27, 1960, the St. Louis County Council repealed the ordinance authorizing the acquisition of the Dietsch property. On June 8, 1960, the County Counselor dismissed and abandoned the condemnation proceeding. No evidence was presented as to the reason for the abandonment of the condemnation.

This action was instituted by plaintiffs to recover their expenditures of $1500 attorney’s fees and $300 appraisers’ fees in the condemnation proceedings. The petition was in two counts. The first charged that the action of St. Louis County in instituting and pursuing the condemnation was in bad faith because they had appraisals fixing the value of plaintiffs’ property at $67,000 before the action was begun and yet, when the commissioners made an award of approximately that amount, the county abandoned the proceedings because the property was too costly to be used for park purposes. (This is not the precise claim advanced by appellants on this appeal, as set out below.) Count II alleged that the action of the county in undertaking and then abandoning the condemnation constituted a taking and damaging of plaintiffs’ property within the meaning of § 26 of Article I of the Constitution of Missouri, 1945, V.A.M.S.

Upon a hearing at which plaintiffs adduced evidence substantially of the facts set out above, the trial court, sitting without a jury, found against plaintiffs on both counts of their petition. The trial court made no findings of fact or conclusions of law. The county produced no testimony at the hearing. Its case consisted of introduction of the ordinance directing abandonment of the condemnation and calling the court’s attention to § 523.045, RSMo 1959, V.A.M.S.

According to appellants’ brief, two issues are presented on this appeal:

“1. Can a land owner recover litigation expenses from a public corporation that has acted in bad faith?

“2. Are litigation expenses paid by a land owner a ‘taking’ or ‘damaging’ of private property for public use without just compensation therefor, and as such, a violation of the Missouri Constitution ?”

On the first issue, appellants cite State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 92 A.L.R. 373; Hamer v. State Highway Commission, Mo.Sup., 304 S.W.2d 869, and Center School District No. 58 of Jackson County v. Kenton, Mo.Sup., 345 S.W.2d 120. Appellants acknowledge that recovery of condemnees’ expenses or damages was denied in those cases, but they rely upon language in those cases giving apparent recognition to the rule that bad faith on the part of a public condemning authority renders it liable to the condemnees upon abandonment of the eminent domain proceeding. See 63 S.W.2d l. c. 815; 304 S.W.2d l. c. 872 [6]; 345 S.W.2d l. c. 126 [2]; Annotation, “Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment,” 92 A.L.R.2d 355, § 4, “Effect of con-demnor’s bad faith or unreasonable delay,” p. 363.

However, we reach neither this question nor the county’s ultimate defense of governmental immunity, based upon Manley v. State Highway Commission, Mo.App., 82 S.W.2d 619.

The appellants concede that bad faith on the part of the condemning authority is an essential element of the liability which they assert.

On this appeal, appellants base their claim of bad faith upon two sets of circumstances. First, they say that the county pleaded that the appellants’ land was “necessary” and that the county had “diligently” tried to agree with the owners about the compensation for it. Appellants say that the county’s only attempt to negotiate was an offer of “one-third of the true value of the land,” followed by perfunctory and summary abandonment of condemnation of land they had previously pleaded was necessary to condemn.

As for the diligence in negotiations, the trial court on the condemnation project went into that subject and found that the county had endeavored to negotiate with appellants on the price of their property. Appellants’ attorney participated in the hearing on the condemnation petition. Insofar as here appears, no question was raised at that time about the sufficiency and bona fides of the county’s efforts to negotiate with defendants.

As for the pleading of necessity of obtaining the appellants’ property, any exercise of the power of eminent domain involves a legislative or administrative determination of “necessity.” Such determination is not, however, irrevocable and does not cause a subsequent abandonment to evidence bad faith.

Appellants complain of the “perfunctory” and “summary” termination of the condemnation proceedings. However, the record here is almost completely devoid of evidence of the circumstances of abandonment of the project. It does appear that three separate tracts were involved in the park proposal and that the condemnation involved three separate tracts. However, the record is wholly silent as to what, if any, bearing the commissioners’ report of value of the other two tracts had upon the decision to abandon the project. The appellant alleged, as part of this cause of action, the bad faith of the county. They were obliged to produce some substantial evidence to support such allegation, and are not entitled to rely upon unsupported inferences.

The second aspect of appellants’ claim of bad faith is based upon the fact that Poert-ner’s offer of $23,650 was expressed as “ten percent above the average of the two appraisals,” although the county at that time had in its possession reports of its appraisers fixing a value of approximately $66,000 for the property. Appellants state that Poertner’s offer thereby involved a “material misrepresentation of fact.” However, the county did have two appraisals which provided a basis for Poertner’s statement. Furthermore, the involvement of two separate county agencies, the Planning Department and the County Counselor’s office, may well have produced a left hand not knowing what the right was doing situation. We would not infer bad faith from these circumstances.

Appellants rely upon Housing Authority of City of North Little Rock v. Amsler, 239 Ark. 592, 393 S.W.2d 268, in support of this claim of bad faith. There, the Arkansas court did conclude that abandonment of a portion of a project after pleading the necessity of the taking would support an inference of bad faith on the part of the condemning authority. In a subsequent appeal, involving the allowance of attorney’s fees and costs to the affected condemnee, Housing Authority of City of North Little Rock v. Green, 241 Ark. 47, 406 S.W.2d 139, the court held that the fact that the condemnor did not have sufficient funds to pay the amount of the condemnation verdict did not show that the condemnor acted in good faith. We cannot accept the Arkansas courf s premise that an allegation of necessity of acquisition of property followed by abandonment of the condemnation supports an inference of bad faith on the part of the condemning authority. Bad faith “partakes of the nature of fraud.” Spiegel v. Beacon Participations, 297 Mass. 398, 8 N.E.2d 895, 907. Just as fraud is not to be presumed but must be proved by the party charging it (Shepherd v. Woodson, Mo.Sup., 328 S.W.2d 1; Bayer v. American Mut. Cas. Co., Mo.Sup., 359 S.W.2d 748), so must bad faith. We simply disagree with the Arkansas court’s conclusion that the circumstances upon which it relied established bad faith.

In any event, we are unable, from our de novo review of the record before us, to conclude that the presumed finding of the trial court of failure of proof of bad faith on the part of the county was clearly erroneous (Civil Rule 73.01(d), V.A.M.R.) and we therefore would not disturb its judgment as to Count I of appellants’ petition.

Count II is based upon the second proposition which appellants say is involved here, whether there has been a “taking or damaging” of their property within the meaning of § 26 of Article I of the Missouri Constitution. Appellants cite no Missouri cases in support of their contention on this basis. The reason for this is that the Missouri cases are contrary to the position of appellants. Appellants cite no damage to the land itself. The county at no time entered into possession of it and appellants were not deprived of its use. Our cases hold that a taking or damaging, to fall within the constitutional provision relied upon, must involve the land itself. State ex rel. v. Beck, Hamer v. State Highway Commission, supra. The items of expense such as are here involved are not such that § 26 of Article I requires the landowners be reimbursed therefor.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    Opal WRIGHT, Appellant, v. Robert D. WREHE, Administrator of the Estate of Lulu Wrehe Gausche, Deceased, Respondent.
    No. 52529.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.

      Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
    Price Shoemaker, Elmer E. Reital, and Robert D. Colley, St. Joseph, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

On December 14, 1965, Opal Wright filed a petition in the Circuit Court of Buchanan County, Missouri, against Robert D. Wrehe, administrator of the estate of Lulu Wrehe Gausche, deceased, to recover damages for personal injuries alleged to have been sustained in a fall on steps leading from defendant’s premises to a public sidewalk. On March 3, 1966, an amended petition was filed. Plaintiff asked damages in the sum of $25,000.

Defendant filed an answer denying liability. Thereafter, he filed interrogatories to plaintiff and their answers, plaintiff’s deposition, and then a motion for summary judgment. The trial court heard arguments on the motion, sustained it, and entered judgment for the defendant. Plaintiff filed a motion for rehearing which was overruled, and plaintiff appealed from the judgment.

The substance of the allegations of plaintiff’s petition is that on June 24, 1964, decedent Lula Wrehe Gausche was the owner of the premises in question and that June Bridgman was the tenant. It was stated that “decedent, or her personal representatives, had the control, charge, and management of the exterior of said premises, including a certain cement stairway leading from the front yard to the sidewalk in front of said premises.” It was alleged in the petition that the steps were defective and dangerous in that one or more of the steps were broken and crumbled, of which condition defendant's decedent or her agent had knowledge. Further it was stated that plaintiff on June 24,1964, was a guest of June Bridgman and, as she was leaving the premises at about 11:30 p. m., it was dark and the steps were unlighted and without handrails; that because of the broken and crumbled steps she fell, causing her to suffer serious injuries. The negligence pleaded was that the owner of the property knew or should have known of the dangerous condition of the steps and failed to repair the same.

Plaintiff briefed a number of points, the first being that "The defendant failed to show by unassailable proof that he is entitled to summary judgment as a matter of law.” We are of the opinion that the point is well taken and that it will not be necessary to consider any of the other points briefed.

Defendant, in answer to plaintiff’s contention, says in the brief:

“(a) Pleadings, interrogatories, depositions, and admissions support entering summary judgment.

“(b) No duty on landlord to repair where exclusive possession rests in tenant.

“(c) Plaintiff was a social guest of defendant’s tenant and as such took the premises as she found them and no duty was owed to Plaintiff by Defendant under facts in this case.”

The pleadings, interrogatories, the answers thereto, the depositions and admissions do not show that it was not the defendant’s duty to repair the defective steps in question. That is a material fact left as an issue in the case.

The answers to the interrogatories and the deposition of plaintiff show that she lived in the State of Washington; that she was in St. Joesph, Missouri, only temporarily and, while there, was a guest of Mrs. June Bridgman who lived on the premises in question; and, further, that she knew nothing of the rental agreement between Mrs. Bridgman and the decedent. Mrs. Bridgman was not called as a witness and no evidence appears in the record as to the terms of the rental contract pertaining to the obligation to make repairs.

Defendant cited a number of cases to support his contention. As we read and understand those cases, they support plaintiff’s theory.

In Brummet v. Livingston, Mo.App., 384 S.W.2d 101, 103[1,2], the court stated the rule governing summary judgment as follows : “It is the law that a summary judgment may be entered only when the party seeking it shows, by unassailable proof, that he is entitled to judgment as a matter of law. The proof submitted should leave no room for controversy and should show, affirmatively, that the other party would not be entitled to recover under any discernible circumstances.” (Emphasis ours.) A like ruling was made by the St. Louis Court of Appeals in a case cited by the defendant, Brown v. Prudential Ins. Co. of America, Mo.App., 375 S.W.2d 623, 628[1], 629[6-8]. See also Lampkin v. Harzfeld’s, Mo., 407 S.W.2d 894.

Whether the defendant is liable for failure to make repairs cannot be determined as a matter of law by a mere showing that the relationship of landlord and tenant exists. In the case of Tucker v. Taksel, Mo.App., 345 S.W.2d 385, it was held that a landlord was liable for failing to repair defective premises causing injury. The landlord had retained partial control for the purpose of making repairs. So in this case plaintiff upon trial may be able to introduce evidence establishing a duty on defendant to repair the steps in question.

Defendant under Point III states that “Where no counter affidavits are filed by plaintiff reviewing courts on appeal would accept as correct, statements in defendant’s exhibits (admissions, interrogatories and depositions) to support motion for summary judgment.” Such a rule does not apply where the record, as in this case, does not show that the defendant, seeking summary judgment, is entitled to a judgment as a matter of law. The judgment of the trial court is reversed and the cause remanded.

It is so ordered.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the court.

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Henry Lewis BUTLER, Appellant.
    No. 52120.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Joseph S. Boland, Sp. Ass’t. Atty. Gen., Clayton, for respondent.
    Henry L. Butler, pro se.
   HIGGINS, Commissioner.

Appellant waived jury trial and was convicted by the court of burglary, second degree, and stealing. Criminal Rule 26.01, V.A.M.R.; §§ 560.070, 560.110, V.A.M.S. Pursuant to such conviction and upon a further finding of prior conviction, the court assessed appellant’s punishment at 5-years’ imprisonment in the penitentiary for each crime and sentenced him accordingly, further ordering the sentences to run concurrently. §§ 556.280, 560.095, 560.110, V. A.M.S.

Appellant’s point I claims that the “purported waiver of trial by jury * * * was in violation of the rights of the defendant for the reason that the court failed to ascertain on the record that the defendant was aware of his right to trial by jury; that he was aware of his right to refuse to waive trial by jury and that his entering into such an agreement was not informed and reasonable. * * * It is simply not enough for his counsel to have had him sign a memorandum * *

Prior to the 1945 Constitution of Missouri a defendant charged with a felony could not waive trial by jury. State v. Talken, 316 Mo. 596, 292 S.W. 32, 33 [5]; and see also § 546.040, V.A.M.S. However, Article I, Section 22(a), Constitution of 1945, V.A.M.S., authorized waiver of jury trial in criminal cases, and the manner of such waiver is spelled out in Criminal Rule 26.01 (b): “The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. Such waiver by the defendant shall be made in open court and entered of record.” Suffice to say that the constitutional authority was exercised and that the requirements of its exercise as defined by rule were satisfied by the memorandum, “Defendant hereby waives his right to trial by jury and agrees that the cause be tried to the Court,” signed by Henry L. Butler and Hugh White, his attorney, “approved” by David J. Murphy, Judge, and filed prior to trial February 9, 1966. State v. Taylor, Mo., 391 S.W.2d 835, 836 [1]. See also Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; Singer v. United States, 380 U.S. 24, 33, 34, 85 S.Ct. 783, 13 L.Ed.2d 630; Hatcher v. United States, 122 U.S.App.D.C. 148, 352 F.2d 364, 365 [2, 3]; Riadon v. United States, 6 Cir., 274 F.2d 304, 307 [4, 5]; Dranow v. United States, 8 Cir., 325 F.2d 481. There is nothing in the record to impeach the memorandum of waiver, and the affidavit attached to appellant’s brief on appeal does not constitute any proof of appellant’s charge.

Charles Brookshire, police officer of the St. Louis Metropolitan Police Department assigned to homicide, was on duty January 3, 1966, and at 3:30 a. m. was “cruising east on Olive Street” with his partner, Richard Mueller. As he approached the intersection of Grand and Olive he “observed a negro male with an arm full of clothing coming from the window of Downs Clothing Company, and threw the clothing at the curb.” When first seen the subject “was reaching through the window. * * * He came out with an arm full of clothes * * * Turned around, threw the clothing into his car,” a 1959 red and white Oldsmobile. “He then ran around to the driver’s side, got in, and took off at a high rate of speed. * * * Then we pursued him east on Olive to Theresa, north on Theresa to Delmar, and west on Delmar, until we finally stopped him in the 3800 block of Delmar.” This was accomplished with the aid of siren, flashing lights, and three shots. Officer Brookshire drove the police car and had the Oldsmobile in sight at all times. Upon stopping the pursued car the officers placed its driver, appellant Henry Lewis Butler, under arrest and searched his car. “In the front seat we found ten sport coats. * * * They had labels of Downs Clothing Store on them.” The coats were seized and marked as evidence. “We then conveyed him back to the store, where we observed the window was broken.” There was broken glass on the sidewalk on the north side of Downs Store, on the Olive Street side. There was also glass inside the store. “We then conveyed him to the Homicide office, where we questioned him about the above incident. * * * He stated he had been drinking at a tavern on Hodiamont Tracks and Taylor, at which time he borrowed a car from a friend of his, Jessie Harris. He went home, and then he rode around — I don’t remember where —and he ended up on Grand and Olive, and he broke the window and took some clothes. * * * He parked the car on Olive, grabbed a rock he found and broke the window and took the clothes.” This statement was voluntarily made and not reduced to writing. Officer Brookshire identified photographs of the automobile driven by appellant and of the broken window, and identified a sports coat as one taken from the car.

Detective Richard Mueller of the St. Louis Metropolitan Police Department, Officer Brookshire’s partner, also described events of this occasion. “We were approaching Grand Avenue, and we made the stop sign on the southwest corner, and while waiting for the light I observed on Olive Street, south of Grand Avenue, a person at the window, taking something out of the window, walked over to his car, and put it in his car. * * * It was clothing of some type. * * * He got in his car and went east on Olive Street to Theresa, then north on Theresa to Delmar, and we were pursuing him at the time. He then went east on Delmar, and during this chase we had our siren and headlights blinking, and when he crossed Grand Avenue on Delmar, in the 36 and 3700 blocks of Delmar, I fired three shots.” The automobile was in sight during the entire chase. When it stopped, appellant was arrested “at which time we saw the clothing on the front seat.” Detective Mueller also corroborated Officer Brookshire respecting the condition of the window at Downs Clothing Store and the statement made by appellant, and he identified a picture of the “ten jackets that were taken out of the window.”

Harry Schneider, vice-president of Downs Men’s Shop, helped close the shop about six o’clock in the evening, December 31, 1965. He and a Mr. Potter accomplished the closing so that the electric burglary alarm system would function. He next went to the shop about four o’clock a. m., January 3, 1966, upon a call from the police. “There was a policeman guarding the premises, and one of the glasses of the clothing room was all shattered. A large, concrete block had been thrown through it.” There were glass fragments both inside and outside the store; the concrete block was 1}4 or 2 feet inside the store. He identified the coats taken from the car driven by appellant as being property of Downs’ Men’s Shop from “the labels inside the coat, and our price tickets * * The window rack ordinarily would contain thirty-five or forty coats. The total cost of the ten coats he saw at police headquarters belonging to Downs Store was about $225; the retail value about $425 or $435.

Henry Lewis Butler testified in his own behalf. “I was heading east, .on Olive. * * * There was a light. I waited for the light. * * * I was on Olive, between Grand and Theresa, when I seen this bundle of whatever it was laying in the street. * * * I passed it about ten feet, and I backed up, I didn’t know what it was. I got out and checked it, I didn’t know what it was. I put it in the car, and I made a left on Theresa. * * * After I put it in my car I noticed it was coats, clothes. I didn’t know if it was suits or sports coats.” The clothing was on hangers. He denied stopping adjacent to the Downs Store, breaking the window, and reaching inside. He neither saw nor heard signs of police until he turned off Theresa on Delmar. “There was a light there. I went through the caution light, it was changing to red, I'tried to beat it, and that is when the police said he saw me.” He heard a shot when he was at Vandeventer and Spring. He stopped and the officers came up and cursed him. “He said, ‘You went through that light up there. What the hell you think you're doing?’ * * * He snatched me out of the car,” after which the officer searched the car and found the clothes. The officers did not say anything about a burglary. “They took me to Downs. Then they took me to Central.” While at Central, “One of the officers, he had typed out a statement, or something, and told me he would crack my head if I didn’t sign it.” He refused to sign. On cross-examination appellant admitted drinking “a couple bottles of beer * * * in the A.M.,” January 3, 1966, at Taylor and Hodiamont Tracks. He had been “quite a few places.”

Appellant, by his points III and IV, questions the sufficiency of this evidence to sustain his conviction. He argues, point III, that “there is no evidence that (he) knowingly took property of Downs Men’s Store with the intent to deprive them of its use and convert the same to his own use * * *. The evidence of the defendant is clearly that he found some clothing lying abandoned on the street and placed it without inspection into his automobile * * * for safe keeping.” His argument in point IV is that the state’s evidence “was incompetent, unbelievable and contradictory,” in that neither officer said he “saw defendant personally break and enter * * * Downs Men’s Store * * and “there was no testimony that the officers made and (sic) immediate and prompt attempt to halt the burglary they reported to have been in progress.”

In reviewing a verdict, all evidence tending to support the verdict is considered as true, and all inferences favorable to it are indulged. State v. Reid, Mo., 391 S.W.2d 200, 204 [3]. Appellant was seen with his arm inside a broken window of Downs Clothing Store and to place an armful of clothing into an automobile. He was seen to get into the automobile and drive away at high speed. The witnessing officers pursued him, keeping him in sight at all times, finally stopping him with the aid of siren, flashing lights, and three pistol shots. Ten sports coats bearing labels from Downs, identified as belonging to Downs, and of a value of at least $225, were inside the car. Appellant admitted to the arresting officers that he broke the window and took some clothes. Such evidence proves all the elements of burglary and stealing; Section 560.110, V.A.M.S., supports inferences of a taking with intent to deprive the owner of his property, and overcomes and rebuts any inferences of finding and taking for safekeeping as suggested by appellant. Nor is there any contradiction, because the officers corroborated each other in respect to their efforts to apprehend the burglar and appellant admitted the breaking and taking. For similar cases on sufficiency of evidence to support convictions of burglary and stealing, see: State v. Hutchin, Mo., 353 S.W.2d 701; State v. Armstrong, Mo., 361 S.W.2d 811; State v. Zammar, Mo., 305 S.W.2d 441.

In connection with the alleged insufficiency of the evidence, and in point II, appellant contends that the court should have suppressed the ten sports jackets as evidence because the officers merely “saw the defendant run a red light or a caution light and after they stopped him to give him a ticket discovered the clothes found in his automobile.” Assuming that appellant timely moved to suppress this evidence and made timely objection at the time of its admission, the point is not well taken. A favorable view of the evidence previously stated shows that the officers saw a man take clothing from Downs Store, put it in his car, and speed away. They pursued with the car and occupant in view at all times. When he stopped his car appellant was arrested and the jackets lying in view on the seat were seized. In these circumstances there was no unreasonable search and seizure of the jackets and upon subsequent identification by Mr. Schneider they were properly admissible in evidence. State v. Mallory, Mo., 336 S.W.2d 383, 385 [7]; State v. Cantrell, Mo., 310 S.W.2d 866, 869 [6].

The matters of record specified for review in Criminal Rule 28.02, V.A.M.R., are free of error.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Joe HEGWOOD, Appellant.
    No. 52646.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Joe Hegwood, Affiant, pro se.
   FINCH, Presiding Judge.

Defendant appeals from an order overruling his motion to vacate judgment and sentence pursuant to Supreme Court Rule 27.26, V.A.M.R.

Defendant entered pleas of guilty to two charges pending in the Circuit Court of McDonald County on August 17, 1964. On August 20, 1964, he was sentenced in both cases. One charge was for issuing a bogus check and on it he received a sentence of two years. It is not involved in this proceeding under Rule 27.26.

The other plea of guilty was in a case in which the information filed by the prosecuting attorney recited, in part, as follows: “ * * * on or about the 16th day of July, 1964, one Joe Hegwood did then and there with specific intent, knowingly, intentionally, maliciously, unlawfully, felo-niously, deliberately, on purpose and with malice aforethought, make an assault in and upon one J. M. Ralston, who was then and there the owner and operator of M-A State Line Liquor Store, and who was then and there in charge of the money, effects and property of said M-A State Line Liquor Store, by means of a dangerous and deadly weapon, to-wit: a 12 gauge dobel [sic] barrel shot gun; and Six Hundred Sixty-One Dollars ($661.00), good and lawful money of the United States of America, the property of the said J. M. Ralston, engaged in business under the name of M-A State Line Liquor Store, from the person and in the presence and against the will of the said J. M. Ralston, then and there by means of and by use of said dangerous and deadly weapon, the shot gun, and by putting him, the said J. M. Ralston, in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, with the intent then and there to permanently deprive the owner of the use thereof, * * On that plea of guilty, the defendant was sentenced to life imprisonment under supervision of the Department of Corrections.

Defendant’s pro se motion to vacate the judgment and sentence made, in substance, the following allegations: (1) That the information under which he was prosecuted and sentenced was illegal in that it improperly joined in one information charges of assault and armed robbery, not permitted in a single information, and that the judgment entered thereon was insufficient, and (2) that the first opportunity he had to consult with his court appointed counsel was on August 20, 1964, the date he entered a plea of guilty, and that counsel at that time advised him to plead guilty on the basis that he would be able to obtain a parole in a couple of years, and that if he did not plead, he would never receive parole consideration, and that further the attorney apparently had failed to investigate the sufficiency of the information, and that he pleaded guilty as a result of “such misad-visement by his court appointed attorney.”

The trial court held an evidentiary hearing on defendant’s motion to vacate the judgment and sentence. The defendant was present and testified. He complains on appeal that the trial court erred in not appointing counsel to represent him in connection with his motion to vacate, but at that time our rules did not require appointment of such counsel and this court has held that appointment of counsel on a motion to vacate under Rule 27.26 was not required. State v. Pope, Mo., 411 S.W.2d 212; State v. Herron, Mo., 376 S.W.2d 192.

We hold that the information on which defendant was prosecuted and sentenced to life imprisonment sufficiently charged robbery in the first degree with a dangerous and deadly weapon. The language is quite similar to that in the information approved in State v. Lowe, Mo., 375 S.W.2d 52, as a sufficient charge of robbery in the first degree under §§ 560.120 and 560.135, RSMo 1959, V.A.M.S. Perhaps the information could be more artfully drawn, but it includes all of the elements of the charge and was sufficient to inform the defendant with what he was charged by the State. Furthermore, the defendant testified at the hearing on his 27.26 motion and he did not testify or claim at that time that he was misled by the information or under any misunderstanding as to the charge against him. He claims simply that the information charges assault and armed robbery, not robbery in the first degree with a dangerous and deadly weapon, and hence that the information is improper and his conviction should be reversed for that reason. In addition, at the hearing on the motion to vacate, the transcript of what occurred at the time defendant entered his plea of guilty and was sentenced was introduced. In the course of those proceedings the trial court, in the presence of the defendant, asked his attorney whether they waived the reading of the information in the charge of robbery and the attorney advised that they did. After a plea of guilty had been entered, the prosecuting attorney detailed the events in which the defendant and a companion had gone to a liquor store and had pointed a shot gun at the proprietor and directed him to open the cash register. During the proceedings, the defendant shot the proprietor and then directed the proprietor’s wife to collect the money and put it in a sack, and then he forced both of them to go with him to an adjoining filling station to get the money there. Then on August 20, 1964, the defendant and his attorney again appeared before the trial judge and the court then reminded the defendant that he had entered a plea of guilty on August 17 in the case in which he was charged with armed robbery and asked him if he had any reason why sentence should not be pronounced. The defendant did not dispute the accuracy of the transcript of those proceedings, nor testify that he did not understand that he was so charged.

The information was sufficient to charge first degree robbery with a dangerous and deadly weapon. The evidence introduced on the motion to vacate discloses that it was made clear to the defendant that he was charged with robbery with a dangerous and deadly weapon, and we rule this point against the defendant.

At the hearing on defendant’s motion to vacate, it developed that the commitment which had been sent to the Department of Corrections by the circuit clerk of McDonald County recited that the information against defendant charged him with assault and armed robbery and that the court had fixed defendant’s punishment at imprisonment for his natural life on the charge of assault and at imprisonment for his natural life on the charge of armed robbery. The circuit judge, in his findings and order, found that the circuit clerk by clerical error had incorrectly designated the commitment as being for “assault and armed robbery,” whereas the court’s records disclosed that defendant was convicted of robbery in the first degree, and that he was sentenced on that charge alone, not on a charge of assault plus armed robbery. The court ordered the record corrected to so show, and further ordered that a corrected commitment be furnished to the State Department of Corrections. Defendant, in his brief in this court, complains of this correction of the record by the trial court and asserts that the court had no right to make the change. Such correction of the record by nunc pro tunc order, as was done here, to show that the defendant actually pleaded guilty to and was sentenced under a charge of robbery, first degree, rather than assault and armed robbery, was permissible and proper. McCarthy v. Eidson, Mo., 262 S.W.2d 52[2].

With reference to the claim of insufficient time to consult with counsel and inadequate and incorrect advice by such attorney asserted by defendant, the evidence at the hearing conducted by the trial court on the 27.26 motion was as follows: Defendant testified that at his preliminary hearing in the magistrate court he was told by the prosecuting attorney that if he would waive his preliminary hearing, he would not receive a sentence of over ten years. He further testified that Sheriff Tennison was present when this statement was made. Defendant did not testify that his appointed attorney, Mr. Jerry Graves, made any representation to him about a parole or to induce him to enter a plea of guilty, although he had so claimed in his motion to vacate. Actually, the only thing mentioned in defendant’s testimony in this connection was his statement that the prosecuting attorney, in the presence of the sheriff, made the statement that if he waived his preliminary hearing, he would be eligible for parole in a short time and would not receive a sentence of over ten years. The defendant did not offer any other witnesses and did not call Mr. Graves as a witness, although he was present at the hearing.

The State then put Mr. Jerry Graves on the witness stand. He testified that when he was appointed to represent the defendant on August 17, 1964, he conferred with the defendant. He agreed with the defendant that the conference lasted perhaps fifteen minutes, but he fixed it as occurring on August 17 rather than August 20. Mr. Graves testified that he asked the defendant what he wanted to do on these two charges, and defendant stated that he wanted to plead guilty. Defendant asked Graves how much of a sentence he would receive, and Graves told him he did not know. Graves advised him as to the minimum and maximum sentences which he could receive on the charges. Graves then went and talked to the prosecuting attorney and asked him what his recommendation would be. The prosecuting attorney advised Graves that he would make no recommendation, and Graves’ recollection was that the prosecuting attorney did not make any recommendation to the court as to sentence on the charge of first degree robbery. The transcript of the proceedings at the time of sentencing confirms the fact that the prosecuting attorney made no recommendation to the trial court.

Mr. Graves then reported back to the defendant about his conversation with the prosecuting attorney. He testified that he did not represent to the defendant that he would receive any particular sentence on a plea of guilty.

Mr. Graves testified that he returned to court a few days later when the defendant was to be sentenced, and at the time of sentencing he asked the defendant if he understood the sentence, and the defendant said that he did, and that the defendant had made no objection to the sentence of life imprisonment when it was assessed.

Sheriff Tennison also testified on the motion and stated that he had made no promises of any kind to the defendant and that no promise of a ten-year sentence to the defendant was made in his presence. Defendant specifically asked Sheriff Ten-nison whether he, the prosecuting attorney and the defendant went into a room or vault at the time of the preliminary hearing and whether the prosecuting attorney said to the defendant, “You are making a wise decision if you would plead guilty. Judge Carver has not imposed very stiff sentences but he is fair, he is just, and you will not receive over ten years.” Sheriff Tennison denied that this statement was made in his presence. The defendant had not specifically testified as to this alleged conversation, but rather had simply said that the prosecuting attorney had stated that the defendant would be eligible for parole in a short time and that he would not receive over ten years if he would waive a preliminary hearing.

The testimony at the hearing disclosed that when the defendant first appeared on August 14, 1964, before Judge Carver on these two charges of issuing a bogus check and robbery, first degree, he requested the court not to appoint an attorney for him and advised that he wanted to enter a plea of guilty on the two charges. Judge Carver would not accept that request, but proceeded to appoint Mr. James L. Paul to represent the defendant. However, it developed that Mr. Paul represented the complaining witness, whereupon Judge Carver appointed Mr. Jerry Graves on August 17.

The trial court made findings of fact and conclusions of law. He held that the information was sufficient, as we have done, and that the evidence disclosed that the defendant was informed as to the charge and its seriousness, that he insisted on pleading guilty, and that there was no coercion, force or promises made by any person to induce his plea of guilty, and that the representation of the defendant by his appointed attorney, Jerry Graves, was adequate. Those findings are supported by the evidence. We rule defendant’s second point against him.

Defendant’s brief on appeal complains that he did not have counsel at the preliminary hearing. That question was not raised by defendant’s motion to vacate, was not considered by the trial court, and may not be raised for the first time on appeal. State v. Eaton, Mo., 394 S.W.2d 402.

The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Olin Neal LAFFERTY, Appellant.
    No. 52199.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    See also Mo., 416 S.W.2d 157.
    Norman H. Anderson, Atty. Gen., Jefferson City, Mo., Selden M. Jones, Sp. Asst. Atty. Gen., Kansas City, Mo., for respondent.
    Ben J. Martin and Paul R. Coffman, Springfield, Mo., for appellant.
   HIGGINS, Commissioner.

Appellant, charged by information in the Circuit Court of Greene County, March 9, 1965, with a felony of carrying a concealed weapon in violation of Section 564.610, V.A. M.S., was convicted by a jury which assessed his punishment at two-years’ imprisonment in the penitentiary, and sentence and judgment were rendered accordingly.

On January 30, 1965, Edward Wade Earls owned and operated a trailer court and “coin-o-matic” laundry at 1545 North Barnes, Springfield, Greene County, Missouri. He lived at 2155 East Division in Springfield; it was “somewhere around 300 foot, 350, something like that from my house to the laundry.” Inside the laundry were “eight washers, two driers, a coin •changer, cigarette machine and a pop machine.” The coin changer was on the hack or south wall of the laundry. Mr. Earls had a 2-way radio listening device between his house and the laundry and between 7:30 and 8:00 p. m. he heard a noise over the device coming from the laundry. In response to the noise, “I told my wife to call the police and I took a gun and went to the laundry, went immediately to the laundry.” It took him about two minutes to reach the laundry. “I saw this fella here (indicating defendant) in my changer with money in his hand, and he was at my changer at the wall. * * * I held my gun (a .22 revolver) on him when I went in the door. I had the gun in my hand and I told him to turn around and lay his money down •and stand still. And he said, ‘Well,’ he said, *You’ve caught me redhanded.’ He said ‘I’ve got money that I’ll give you to let me go before the police get here.’ And he •started to put his hand in his back pocket and I told him to stand still till they got there, and he did. And when the police officer arrived, he was askin’ me what was goin’ on and I was telling him, and I told him I thought the man was armed. And he searched him, I asked him to search him, and he checked in his right pocket, back — .” He saw the officer take a pistol from defendant’s back pocket.

Patrolman Raymond Landers, with fourteen years on the Springfield police force, arrived at the laundry around eight o’clock in response to a radio dispatch. “I pulled up in front of the laundry and got out of my car, went in the east door of the laundry, and as I went through the door I saw Mr. Earls standing on the right side of the door and partially out in the middle of the floor, holding a gun on Mr. Lafferty, who was approximately 12 to 15 foot from him, standing back more in the southern end of the laundry.” Officer Landers placed the defendant under arrest and searched him. “I found a stainless steel stiff wire in his righthand coat pocket, and a loaded .22 caliber revolver, loaded with hollow point bullets in his right hip pocket.” No part of the revolver protruded from defendant’s pocket and he wore a car coat which covered the pocket. The officer asked defendant about the gun when he took it from his pocket and “(h)e stated he had no knowledge of where the gun came from.”

Appellant admitted that he was in the laundry on the occasion described by Mr. Earls. “There was no one in the laundry with me. My wife was sittin’ outside in the car. * * * I went in the laundromat to get some dimes. I took some halves in there and put ’em in the changer and got some dimes. * * * We save dimes. We had coin books. * * * I put in three half dollars and got dimes for ’em. * * * I guess I got five for each one.” He denied having a firearm on his person and, when asked if he had seen the weapon that Officer Landers identified as the one which he took from defendant’s right hip pocket, he said, “It could possibly have been the same one he came up — he came up with a little old gun, but I don’t know what kind it was.” Upon cross-examination he was asked to explain his having eighty-eight dimes on the table and in his hands when Mr. Earls found him. He answered, “I had about 8 or 9 dollars in dimes in my coat pocket but I didn’t have no money in my hand when this liar come in, that got up and testified.” In respect to the weapon, defendant was cross-examined:

“Q. Are you claiming that he (Officer Landers) is the one that planted this gun on you? * * * A. The gun wasn’t on me.

“Q. * * * Are you claiming that he brought out the gun for the first time — A. He must’ve. I sure never had it.” He admitted to convictions for “gamblin’ once. * * * Maybe drunk. I don’t remember, and burglary tools once. * * * Petty stealing once.” He “guessed” he had been convicted five or six time of state or federal crimes before this arrest. His wife “drove off when the man come in and throwed the gun on me.”

Gary Burks had known appellant for about eight years. He stated that he arranged to have Officer Landers meet him at Big Boy’s Cafe at Commercial and Glen-stone. The meeting took place about two months before the trial. “I asked him about the case, you know, asked him if Mr. Lafferty had a pistol, which he told me he hadn’t, but he said, ‘Well, it don’t make any difference if he had one or not.’ He said, ‘We’ve got him trapped and we’re goin’ to put him away anyhow.’” No one else was present during the conversation, and the witness admitted to convictions of petty theft and a drinking violation.

Ronald L. Robb said he saw Officer Lan-ders and Gary Burks at Big Boy’s about two months prior to the trial. He didn’t know either at the time. They were in a booth and Witness Robb said he overheard Gary Burks say, “ ‘Lafferty said he didn’t have no gun on him,’ ” and Officer Landers replied, “ ‘Well, it doesn’t make any difference whether he did or not. We’ve got him trapped so he’s going to prison anyway.’ ”

Mr. Earls testified in rebuttal that the dimes mentioned by appellant in his testimony were in appellant’s hand at the time he first confronted him in the laundry. They were identified as Exhibit E. “I had somewhere around 12, 15 dollars in my changer and there was a dollar and a half in dimes left and there was, I believe, 2 or 3 half dollars in the changer.

“Q. Would it have been a pile approximately like exhibited by this pile here (Exhibit E) in his hands? A. I would say yes. There should have been somewhere around nine dollars.

“Q. Now, were those in his pocket or in his hands ? A. In his hands. * * * He started to his pockets with ’em and he got about like so (indicating), and I told him to stop and lay ’em on the table, and he did so.”

Mr. Earls observed the search made by Officer Landers of appellant and there was nothing in. the officer’s hand when he reached into appellant’s right rear pocket and took out the revolver.

Eva Mae Earls also saw Officer Lan-ders search the appellant and take the weapon from his pocket. The officer had no weapon in his hands prior to the search, his own weapon being in its holster and her husband’s being in his hand held on appellant.

Officer Landers was also recalled in rebuttal. He testified to a conversation with Gary Burks at Big Boy’s Cafe. “The only thing that was mentioned was that he informed me that Lafferty was getting pretty jittery about the case.” The officer made no statements about the case; he did not know Robb.

Appellant was represented by counsel upon trial, in preparation and argument of his motion for new trial, and until after the filing of the transcript in this court on October 15, 1966. On December 16, 1966, he filed a motion in this court “to have appeal considered without further entry by defense counsel” on “those Points properly preserved for appeal in Appellant’s Motion for New Trial and those matters required by Criminal Rule 28.02, V.A.M.R. to be reviewed.” The motion was sustained.

Appellant does not question the sufficiency of the evidence to sustain the conviction; suffice to say that the foregoing evidence would support a finding that defendant had a revolver concealed on his person on the described occasion. State v. Crone, Mo., 399 S.W.2d 19, 20-21 [2-4].

By point 1, appellant charges “The Court erred in admitting, over objection of this Defendant, evidence of the crime of petty larceny and other crimes that were allegedly committed prior to the time of commission of the crime with which this Defendant was charged and tried, of which Defendant had never been convicted.” This charge is made also in points 2, 3, 4, and 6, where it is said that the State’s evidence “dealt chiefly and overwhelmingly with the commission of larceny and other crimes that were allegedly committed prior to the time of the commission of the crime with which this Defendant was charged and tried”; that such evidence was entirely incompetent and irrelevant to any issue or proof necessary for conviction on the charged crime; that admission of such evidence only served to infuriate the jurors resulting in the conviction and sentence for carrying a concealed weapon.

Insofar as these contentions may relate to the five or six prior convictions of defendant on state and federal charges of petty larceny (stealing), gambling, drunkenness, and “burglary tools,” admitted by defendant on cross-examination, they may be disposed of summarily because no objections were made by defendant to the cross-examination questions which elicited these answers; and, even so, the evidence thus adduced was properly admitted for impeachment purposes when the defendant took the witness stand in his own behalf. State v. Morton, Mo., 338 S.W.2d 858, 861 [2].

Insofar as points 1, 2, 3, 4, and 6 may be concerned with testimony of events leading up to the discovery of the concealed revolver which may have tended to establish that appellant may have committed or was in process of committing a separate and distinct offense for which he was not on trial, such points may again be ruled summarily because such evidence involved matters so inseparable from the circumstances of the crime charged that it falls within the exception to the rule appellant would invoke. State v. Blocton, Mo., 394 S.W.2d 323, 325 [3].

Point 5 is an extension of charges previously discussed. It is a specific complaint that Exhibit E, $18.80 in dimes, was never admitted in evidence but was visible to the jury and “served again to infuriate the minds of the jurors against this Defendant.” This point is also without merit because the only record that defendant made going to Exhibit E was a general objection to its admission in evidence and the objection was sustained, thereby granting defendant all the relief requested. A stronger case for the same relief existed and was denied in State v. Wilson, Mo., 237 S.W. 776, where two revolvers taken from appellant upon his arrest were exhibited to and identified by witnesses and were left on the counsel table throughout the trial, were never offered in evidence, and defendant’s objection to their display was not sustained. The court could not “see wherein the presence of said revolvers lying on the counsel table prejudicially affected appellant’s rights * * *.” 237 S.W. l. c. 778 [6].

The review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the information is in proper from and sufficient; defendant was accorded a jury trial upon his plea of not guilty; the verdict is in proper form and is responsive to the issues ; the punishment is within legal limits; the motion for new trial was considered; allocution was granted.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.