text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent-Plaintiff, v. Keith DUNN et al., Appellants-Defendants.
    No. 39128.
    Missouri Court of Appeals, St. Louis District, Division No. 2.
    July 11, 1978.

      J. David Collins, Collins & Grimm, Macon, for appellants-defendants.
    Dennis J. Redel, Curtis F. Thompson, State Highway Commission, Jefferson City, for respondent-plaintiff.
   REINHARD, Judge.

This case involves an attempt by the Missouri State Highway Commission to force the removal of a fence owned by James J. Donaldson and Pearl Donaldson and a sign advertising the Hereford farm of defendants Keith Dunn, Marilyn Dunn and Harold Dunn. Defendants appeal from a judgment of the trial court granting mandatory injunctions against them.

The petition on which this matter was tried is plaintiff’s second amended petition. Plaintiff’s original petition was in one count which asked that the sign be removed because it violated §§ 226.500 to 226.600, RSMo. 1969, generally known as the “Billboards” law. Plaintiff’s first amended petition contained two counts. In Count I, plaintiff requested the removal of the sign under §§ 226.500 to 226.600 and in Count II requested the removal of the sign under § 304.321, RSMo. 1969. In both the original and the first amended petitions, the plaintiff alleged that the sign was located “on property owned by defendants, James J. Donaldson and Pearl Donaldson, located in Scotland County . . . said property lying adjacent to said State Highway 15.”

In Count I of its second amended petition, plaintiff alleged that defendants Keith Dunn, Marilyn Dunn and Harold Dunn erected and maintained an advertising sign upon plaintiff’s “right-of-way” for the advertisement of the defendants’ Hereford farm. Plaintiff claims that the sign constitutes commercial advertising upon state right-of-way without authorization from the Missouri State Highway Commission and is a public nuisance under § 304.321, RSMo. 1969. Plaintiff requests that the court order the sign removed and the defendants restrained from maintaining in the future such signs on the highway right-of-way. Plaintiff has not alleged specifically nor have they offered any evidence that the sign constitutes a hazard to traffic.

In Count II, plaintiff alleged, “That, defendants, James J. Donaldson and Pearl Donaldson are the owners of certain property in Scotland County which adjoins certain of the above described right-of-way over which said Route T is built”, and “that they have constructed, own and maintain a fence partially located upon the above described right-of-way which is adjacent to land owned by the said defendants.” The plaintiff asked that the court order the removal of the fence and further restrain defendants from maintaining said fence in the future.

Defendants in their answer deny that the sign or fence is on the right-of-way of plaintiff, asserting instead that when the right-of-way for Highway T was planned, it was marked with stakes by the Highway Commission and that the Donaldson fence was then built according to those stakes on land which was not a part of the state highway. Therefore, the determinative factual issue is whether the sign and the fence are within the right-of-way for Highway T.

Both the sign and fence involved herein are located near the intersection of Route T and Highway 15 in Scotland County. State Highway 15 runs generally north and south in this area. Route T intersects Route 15 and runs in a westerly direction from the intersection. The Donaldson land is on the southwest corner of that intersection.

The right-of-way to Route T was acquired by condemnation in 1933, at which time James Donaldson’s parents were the owners of the disputed land. A metes and bounds description of a portion of the land condemned reads as follows:

Also, beginning at a point on the north line NE ¼ SW ¼ Sec. 14, said point is approximately 134 ft. east from the northwest corner thereof, said point is approximately 35 ft. south and at right angles to Sta. 286 + 86 on said center-line, thence east on said north line 38 ft. to intersect the northwesterly right-of-way line of Route 15, thence southwesterly on said northwesterly right-of-way line approximately 94 ft. to a point approximately 120 ft. south and at right angles to Sta. 286 + 86 on said centerline, thence north 85 ft. to point of beginning.

The judgment of the court in 1933 ordered the condemnation of the land described in the condemnation petition and as “shown by a survey and map of Supplementary State Highway No. T., . . . filed in the office of the County Clerk . and as shown by the surveyors’ stakes heretofore driven along the line of said highway . . . .” (Emphasis added.)

Plaintiff’s case is based principally upon the survey of Brent Jacobson, a registered professional engineer and land surveyor. From his survey, for which he utilized the above-quoted description from the condemnation proceedings, Jacobson found the sign to be upon the State’s right-of-way within the property described by metes and bounds in these proceedings. The survey also showed that defendants’ fence ran along the northern and eastern sides of the described triangle of property.

Plaintiff’s evidence also includes several documents from the 1933 condemnation proceedings for Route T: the order for filing a petition of condemnation, an order appointing commissioners, and the judgment of the court in those proceedings. Plaintiff also introduced into evidence the plans for Route 15 and T, as well as photographs of the sign and the recent surveyor’s plat. Plaintiff offered David Day, its “permit inspector” in District Three’s office in Hannibal, who testified that he had sent a notice to Dunn to remove the sign.

In response to plaintiff’s proof, defendants rely on the reference to the stakes in the 1933 condemnation proceedings. The condemnation petition stated that “. for a more accurate and perfect descriptions [sic] of said parcels or tracts of land . reference is hereby made to . the surveyor’s stakes heretofore driven along the line of said highway.” The report of the commissioners indicates they had viewed the “land being condemned herein to be staked off so that the boundaries and limits thereof could be and were seen by us when we viewed said lands; . . . .” The judgment referred to the property as that “. . . shown by the surveyors’ stakes heretofore driven along said property.”

Defendants maintain that the stakes set by the commission during the condemnation proceedings in 1933 marked the boundary line between the property condemned for Route T and the property retained by the Donaldson’s. The defendants offered testimony that the fence on the south line of Highway T was built according to the line set by the stakes, which was parallel to Route T and extended east to the Route 15 right-of-way. James Donaldson testified that his father owned part of the land condemned in 1933 and that an agent of the highway department placed stakes along the line of the property it was taking. Donaldson explained that in the same year of the taking, 1933, he helped his father build a fence next to the stakes and that none of the fence was on the highway right-of-way. According to Donaldson, the fence had been recognized as the line since that time and until the filing of the second amended petition.

As further evidence in support of their position that the sign is not on plaintiff’s right-of-way, defendants also offered as admissions against interest, plaintiff’s original and first amended petitions, both of which alleged that the sign was on defendant Donaldson’s property. The trial court found for the plaintiff and ordered the removal of the sign and fence.

In seeking a mandatory injunction, plaintiff has the burden of proving that the sign was on the right-of-way for Route T. Barnhart v. Ripka, 297 S.W.2d 787 (Mo.App.1956). Consequently, in their first point of error, defendants alleged that the trial court erred in entering judgment for plaintiff in that plaintiff failed to carry its burden of proving that the area where the sign and the fence are located is within the right-of-way for Route T. More specifically, defendants object to the admission into evidence of the survey because it was not definitely shown that the survey “. commence[d] from a corner established by the government, or if lost, re-established in accordance with statutes.” The defendants point to statements made by Jacobson during voir dire by the defendants. While explaining the survey procedure, the surveyor stated, “The corner that this description [of the disputed portion of land] was tied to had never been set.” After stating that he had not found any of the original corners to section 14, Jacobson testified that he reset one of the corners and in so doing used “. . . the information that’s available in the area that remains to reset these corners.”

Section 60.150, RSMo. 1969, in stating which surveys shall be legal evidence says:

“No survey or resurvey, hereafter made by any person, except that of the county surveyor or his deputy, shall be considered legal evidence in any court in this state, except such surveys as are made by the authority of the United States or by mutual consent of the parties.”

The method of re-establishing a government corner is set out in §§ 60.290 and 60.300, RSMo. 1969.

Section 60.290 says:

“In establishing decayed or destroyed section corners, it shall be legal: First, to reestablish such decayed or destroyed corners at the point of intersection of the original marked section lines; if said point cannot be satisfactorily obtained by this mode, it shall be legal; second, to commence at any two section corners in transverse directions from the corner sought, and run random lines in the direction thereof to the quarter section corners; note the falling therefrom; then, adjusting the compass to the true course of said lines, respectively, continue the true course of said lines, and establish the corner sought at the point of intersection thereof; third, when several adjacent corners are decayed, it shall be legal to commence at any two of the nearest township, section or quarter section corners to the corner sought, and in transverse directions therefrom, and run in the direction thereof, on the general course of lines in the township in which the survey is to be made, until the lines intersect, always, however, taking into consideration the fallings of the east and west lines, which point of intersection shall be the legal corner.”

Section 60.300 says:

“In establishing decayed or destroyed quarter section corners, it shall be required to ascertain the medium point on the line between the two adjacent section corners, and reestablish such decayed or destroyed corners at said medium point.”

In Pioneer Cooperage Co. v. Bland, 228 Mo.App. 994, 75 S.W.2d 431, 435 (1934) the court stated, “Evidence of a survey, which is not definitely shown to have been commenced from a corner established by the government, or reestablished in accordance with our statutes, has no probative force and would not be admissible.” Also see Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971); Bowzer v. State Highway Commission, 170 S.W.2d 399, 406 (Mo.1943); Wells v. Elder, 544 S.W.2d 258 (Mo.App.1976); Burke v. Colley, 495 S.W.2d 699 (Mo.App.1973).

We have scanned the record and find that plaintiff failed to show that the Jacobson survey commenced at a corner established by the government, or if lost, re-established according to our statutes. The survey was therefore deficient for the purposes for which it was offered by plaintiff. Consequently, the survey and the testimony of the surveyor relative thereto is of no probative force to establish the boundary line between defendant Donaldson’s land and the highway right-of-way.

With the elimination of this evidence, the issue becomes whether the remaining evidence is legally sufficient to support plaintiff’s claim that the fence and sign were on plaintiff’s right-of-way.

Plaintiff’s exhibits as to the condemnation proceedings provide a description by metes and bounds as to the land condemned. It can be determined that this metes and bounds description is of a triangle of land. However, without the survey, we find no evidence indicating that the sign or the fence are on plaintiff’s right-of-way and therefore plaintiff failed to carry its burden of proof.

Furthermore, in response to plaintiff’s contention that the metes and bounds descriptions control as to what land was condemned, defendant argues that the stakes set by the highway commission were artificial monuments and the fence which replaced the stakes is now an artificial monument prevailing over any metes and bounds description. In support of this position, defendants cite Johnson v. Buffalo School Dist. No. 1 of Dallas County, 360 Mo. 962, 231 S.W.2d 693, 696 (1950), where the Missouri Supreme Court stated, “It is well established doctrine that monuments, though artificial and not natural, will ordinarily control over courses and distances, if the monuments are established and can be located.” See also Jones et al. v. Poundstone et al., 102 Mo. 240, 14 S.W. 824 (1890); Czarnecki v. Phillips Pipe Line Company, 524 S.W.2d 153, 157 (Mo.App.1975); 12 Am. Jur.2d, Boundaries § 71.

Replying to defendants’ contention that the state has too long recognized the fence along Highway T to now contest it, the plaintiff correctly asserts that the statute of limitations cannot run against the state. Section 516.090, RSMo. 1969; Bowzer v. State Highway Commission, 170 S.W.2d 399 (Mo.1943). However, the fact that the fence was built in the same year the land was condemned and has so remained in its original position is evidence supporting defendants’ claim that the fence represents the right-of-way line. Mothershead v. Milfeld, 236 S.W.2d 343 (Mo.1951).

In reciting this evidence of defendants, we do not mean to suggest that we find such evidence conclusive or that we are weighing the evidence in the record, which is not our role on review. Murphy v. Gar ron, 536 S.W.2d 30, 32 (Mo. banc 1976). An admissible survey is not conclusive evidence of the line. Nor is the circuit court bound by defendants’ evidence as to the stakes being the intended line. Both are merely evidence to be considered by the trier of fact in determining the right-of-way line.

Plaintiff also asserts that even without the surveyor’s testimony, it has sustained its burden as to the sign through certain admissions on the part of defendants. In reference to the Hereford sign, defendant James Donaldson stated that he thought the sign extended a little over the fence, “[mjaybe six or eight inches over the fence.” Defendant Dunn testified that the sign was erected in the early 1940’s and stuck out “. . . [p]robably just a little bit . five or six inches . . .” over the fence. However, this testimony refers to the fence adjoining the Highway 15 right-of-way whereas plaintiff’s pleading and theory are based on encroachments upon Route T.

Finally, we note that the remedy of injunction, “frequently characterized as ‘the strong arm of equity,’ is a summary, transcendent and extraordinary remedy [which], may not be invoked as a matter of course, and [which] should be exercised sparingly and only in clear cases; . . .” Barnhart v. Ripka, supra at 792. Upon the evidence before us, we repeat that the plaintiff failed to meet its burden of proof necessary to warrant the granting of an injunction. Bowzer v. State Highway Commission, supra.

The judgment of the trial court is reversed and the case remanded for a new trial.

STEWART, P. J., and STEPHAN, J., concur.

      . Initially, we note that we have reviewed plaintiffs motion to dismiss the appeal for defendants’ alleged failure to comply with S.Ct. Rule 84.04, and we deny said motion.

      . 304.321. Unauthorized signal devices prohibited — trafficway not to be used for signs — nuisances declared.

      1. No person shall place, maintain or display upon or in view of any highway any unauthorized sign, signal, marking or device which purports to be or is an imitation of or resembles an official traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides' from view or interferes with the effectiveness of an official traffic-control device or any railroad sign or signal.
      2. No person shall place or maintain nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising unless authorized by the Missouri highway commission.
      3. This section shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs.
      4. Every such prohibited sign, signal or marking is hereby declared to be a public nuisance.

      . It is recognized that in highway condemnation cases the land is generally staked so the land owner and Commissioners will know what land is being taken.

      . According to plaintiffs survey, this description contains .04 acre.

      . Assuming the admissibility of the survey, the proof fails as to the fence. Although the surveyor stated that a portion of the fence was located on the state right-of-way, he also testified that as to the fence, “. . .we didn’t do it with the same accuracy as we did the sign. We approximate where the fence is.” Approximations are not enough here.


source: Caselaw Access Project

author: GUNN, Presiding Judge.

license: Public Domain

text:
    Ronnie TURNER, Plaintiff-Appellant, v. GATEWAY TRANSPORTATION COMPANY, INC., and James Pullam, Defendants-Respondents.
    No. 38422.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 11, 1978.

      Shifrin, Treiman, Bamburg & Dempsey, David G. Dempsey, Clayton, for plaintiff-appellant.
    Kortenhof & Ely, Joseph M. Kortenhof, Amy Rubin Reichman, St. Louis, for defendants-respondents.
   GUNN, Presiding Judge.

Plaintiff-appellant sued defendants-respondents in libel based on a letter notifying him of his discharge from employment with defendant Gateway Transportation Company, Inc. A jury awarded plaintiff $5,000 compensatory damages and $50,001 punitive damages. After the jury verdict, the trial court, finding that the procedure in sending the discharge letter was privileged and consented to by plaintiff, sustained defendants’ joint motion for directed verdict filed at the close of the entire case and vacated the jury verdict. Plaintiff appeals alleging that the contents of the discharge letter constituted actionable libel and that the discharge letter was not within the protective aegis of privilege. We find that the procedures followed by defendants were consented to by plaintiff, and for that reason the discharge letter does not form a valid basis for plaintiff’s libel action. We affirm the trial court’s judgment.

Plaintiff was employed by Gateway in St. Louis as a local truck driver. Pullam was the St. Louis terminal manager for Gateway. On May 29,1973, plaintiff delivered a load of freight to the C.E.S. Truck Line terminal. Shortly thereafter, Pullam was informed by the safety supervisor for Triangle Express, another truck line, that the truck unit driven by plaintiff was involved in an accident with a Triangle Express unit while at the C.E.S. terminal. Later in the day, Pullam approached plaintiff, reproved him for the accident and advised him that he was discharged for failing to report the accident. The following day, May 30, plaintiff received a letter signed by Pullam indicating that copies had been sent to the local union representative, the Motor Carrier Council and appropriate administrative departments of Gateway. The letter, in pertinent part, read:

“You are discharged from Gateway Transportation Company, Inc., effective, May 29, 1973 for failure to report an accident that the employee is aware of. On May 29, 1973 at approximately 10:30 A.M., while pulling out of C.E.S. Truck Line, your unit struck a Triangle Express tractor, damaging the left door of the tractor. You failed to report the accident in accordance with the Contract and Company policy.
Enclosed find Draft # B-20498 covering all monies due you.
This discharge is in accordance with Article 46 of the Central States Area Local Cartage Supplemental Agreement.”

Pullam had based the dismissal on a statement of a witness who saw plaintiff’s truck strike the Triangle Express unit and noticed that plaintiff had stopped to look at the damage and had driven off. Under the union contract, failure to report a known accident would be cause for dismissal.

Also on May 30, plaintiff went to Pullam with his union business agent and advised him that a grievance would be filed. The record does not indicate whether the business agent advised that the grievance would be filed before or after plaintiff had received the discharge letter. Later, the witness to the accident changed the substance of his statement by stating that plaintiff had not appeared to notice damage from the accident. As a result, plaintiff was reinstated but not paid for the time between the discharge and the reinstatement. The consequence of a subsequent grievance on the pay issue was to award plaintiff for the lost pay.

Plaintiff filed this action in libel charging that the statements in the discharge letter were libelous per se because they disparaged his trustworthiness and discredited his ability as a truck driver; that by sending a copy of the letter to the Motor Carrier Council of St. Louis, the libel was unlawfully published.

Viewing the evidence in the light most favorable to the plaintiff, we find that the trial court was justified in finding that the discharge letter was sent to the Motor Carrier Council under procedures consented to by plaintiff. When an individual consents to the publication of a statement, it is not actionable and is absolutely privileged. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341 (Mo. 1963). We therefore need make no determination as to whether the statements contained in the letter were libelous.

The Motor Carrier Council of St. Louis, Inc. is the labor bargaining and grievance handling arm for Gateway, as well as many other motor carriers operating in St. Louis. Plaintiff called Mitchell Campbell, manager and executive secretary of the Motor Carrier Council, as his witness. It was Campbell’s testimony that the grievance procedures contained in the National Master Freight Agreement—to which Gateway and plaintiff’s union were parties—required the grievance committee to devise its own rules of procedure. The procedure created provides that prior to the actual grievance being filed, the employer—in this case, Gateway—was to send a copy of any discharge letter to the Motor Carrier Council. Campbell testified in this regard as follows:

“Q. But, in any event, the proper procedure is for it [the Motor Carrier Council] to keep a—get a copy of the [discharge] letter.
A. [Campbell] Yes.
Q. Sometimes it isn’t followed.
A. Right.
Q. But it’s supposed to be followed.
A. Most of them [the Carriers] do follow it.
Q. That’s pursuant to the procedures worked out by the unions and by the companies, is that correct?
A. That’s correct.
Q. Your getting a copy of this was part of the procedure worked out by the unions and the companies.
A. Right.”

Thus, under the procedures arranged pursuant to the labor agreement between the plaintiff’s union and the motor carriers, the Motor Carrier Council was to receive a copy of the discharge letters precisely as occurred here. It is inconsequential whether a grievance had actually been filed prior to the receipt of the letter by the Motor Carrier Council. When a letter of discharge was sent to an employee—whether before or after formal grievance procedures were initiated—-the Motor Carrier Council was to receive a copy of that letter. The testimony of Campbell was not contradicted, and as he appeared as plaintiff’s witness, his testimony, including that elicited on cross-examination, is binding upon plaintiff. Zabol v. Lasky, 555 S.W.2d 299 (Mo. banc 1977); Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210 (Mo.App.1976).

During his testimony, plaintiff admitted that he was bound by his union contract and the procedures provided for in the contract. But whether admitted or not, plaintiff was bound by the procedures which had been worked out by his union and the employer, including the sending of the discharge letter to the Motor Carrier Council. Arbuckle v. Fruehauf Trailer Co., 372 S.W.2d 470 (Mo.App.1963). The effect is that plaintiff consented to the procedures followed in this case, and the contents of the discharge letter properly sent pursuant to those procedures were absolutely privileged. Hellersen v. Knaus Truck Lines, Inc., supra, is directly on point in this regard. The trial court was correct in directing a verdict in defendants’ favor.

We need not consider other points raised by plaintiff.

Judgment affirmed.

WEIER and KELLY, JJ., concur.

      . The judgment was for $5,000 compensatory damages against both defendants and punitive damages of $1.00 against defendant Pullam and $50,000 against defendant Gateway.

      . We note that in notifying the Motor Carrier Council by letter that a formal grievance was being filed on behalf of plaintiff, the union repeated the charge levied of failure to report an accident, which allegedly formed the basis of plaintiffs libel action.


author: KELLY, Judge.

text:
    Edward RYAN, Plaintiff-Appellant, v. T. D. McNEAL et al., Defendants-Respondents.
    No. 39260.
    Missouri Court of Appeals, St. Louis District, Division No. 3.
    July 11, 1978.
    London, Greenberg & Fleming, C. John Pleban, St. Louis, for plaintiff-appellant.
    Charles W. Kunderer, Jack L. Koehr, City Counselor, St. Louis, for defendants-respondents.
   KELLY, Judge.

Edward Ryan brings this appeal from a judgment of the Circuit Court of St. Louis County affirming the decision of the Board of Police Commissioners for the City of St. Louis to impose disciplinary action upon him for alleged neglect of duty in the performance of his duties as a member of the St. Louis Metropolitan Police Department. Finding no error, we affirm.

The facts upon which the Board of Police Commissioners based its findings are fairly simple. Appellant was employed by the respondents as a police officer when, on September 5, 1975, the Inspector of the Police Department issued charges and specifications against him whereby it was charged that he was guilty of neglect of duty for failure to dispatch a patrol car on two separate occasions in violation of Section 9.001(r) of the Police Manual. On October 16, 1975, the Board conducted a hearing on these charges and specifications. On March 6, 1976, the appellant retired from the Police Department after serving in the Department for a period of 30 years and 6 days. On March 24,1976, respondents filed their findings of fact and conclusions of law, wherein they found appellant guilty of the aforementioned charges and specifications and ordered loss of pay for a period of six days.

Appellant sought review of this administrative decision in the Circuit Court and after the affirmance of said decision by the Circuit Court took this appeal.

On appeal three issues are presented. Reduced to their essentials, these issues are that the Board of Police Commissioners acted in excess of its authority.

The first Point Relied On contends that the penalty imposed upon the appellant by the Board of Police Commissioners constitutes a fine and is, therefore, in violation of Article I, Section 31 of the Constitution of Missouri which prohibits the legislature from delegating to any administrative agency the power to make rules which establish fines for their violation.

In ruling on this Point we must necessarily take cognizance of the fact that if this forfeiture of pay imposed upon the appellant by the Board constitutes a fine, then the issue presented involves a problem of constitutional construction and we lack jurisdiction to decide it. Mo.Const. Art. V, § 3. However, from our study of the transcript we conclude that the appellant has not properly preserved the constitutional issue for review. There is no mention of a violation of Article I, Section 31 by the appellant until he filed a motion for rehearing after the affirmation of the administrative body’s decision by the Circuit Court.

The claim, as stated, is that the penalty imposed — forfeiture of pay pursuant to the provisions of Section 84.170(2) RSMo. 1969 — is a “fine” and is therefore unconstitutional. No attack was made on the constitutionality of Section 84.170(2) authorizing the Board to impose forfeiture of pay for the violation of the lawful rules and regulations of the Board in the Circuit Court nor before the Board. Appellant raises the constitutionality of this provision of the statute for the first time in its brief filed in this Court. This question is, therefore, not preserved for review. Kansas City, Clay County v. Carter, 447 S.W.2d 805, 807[1] (Mo.App. 1969); Kansas City v. Howe, 416 S.W.2d 683, 686[4] (Mo.App. 1967). We hold that this constitutional issue was not preserved for review by this Court on appeal and therefore do not undertake to consider its merits.

Appellant’s second Point, that the Board was divested of jurisdiction to render a decision in this disciplinary proceeding by reason of his retirement from the Police Department while the cause was still under submission is, in our opinion, without merit and must be denied.

Appellant has cited us no case supporting his position and our research has not surfaced any case in point. However, the Board has been empowered by the General Assembly to impose forfeiture of pay for the violation of its lawful orders and regulations. Section 84.170(2) RSMo. 1969. As we understand appellant’s position, he contends that the power of the Board to discipline a police officer is limited by Rules 7.002 and 7.011 to members of the Department; that by taking retirement he ceased his membership in the Department and therefore the Board lost jurisdiction over him.

When a public administrative body has the power to exercise quasi-judicial functions the same rules apply to it in the exercise of those powers as apply to courts generally, and its jurisdiction will not be defeated by rigid construction where the matter is fairly doubtful. 73 C.J.S. Public Administrative Bodies and Procedure, § 116, p. 435. The Board, in the conduct of a disciplinary hearing pursuant to the power conferred upon it by Section 84.120 RSMo. 1969, acts as a quasi-judicial body in a proceeding involving the legal rights, duties or privileges of the appellant. Scism v. Long, 280 S.W.2d 481, 483 (Mo.App. 1955). Having once acquired jurisdiction, the general rule applicable to courts, that where a court rightfully acquires jurisdiction of a case, it has a right to retain it and decide the case, and its jurisdiction should not be divested by the occurrence of a subsequent event over which the party seeking to defeat its jurisdiction has control, should be applied to the facts in this case. Missouri has recognized this rule in Rouse v. Bank of Darlington, 41 S.W.2d 159,161 (Mo. 1931) and State ex rel. McDowell v. Libby, 238 Mo.App. 36, 175 S.W.2d 171, 174[6] (1943). We hold that the Board did not lose jurisdiction to render its decision in this case by the retirement of the appellant from the Police Department while the case was under submission, after an evidentiary hearing, but prior to the rendering of the Board’s decision.

The appellant’s final Point is that the Board based its findings on insufficient evidence, and this renders its decision invalid. We have reviewed the evidence and find that there was testimony by several persons that they had made calls asking for police assistance, that these calls were received by the appellant, and no police car was dispatched in response to these calls. In one of these, appellant admitted that he forgot to dispatch a police car in response to a call by Dennis McCarthy on June 3, 1975, after his attempts to send out a message over a police channel was unsuccessful because the channel was busy. In this same instance, Sergeant Donald Bohnert testified that when Mr. McCarthy called back because no police car had been dispatched, he talked to Mr. McCarthy and then asked appellant if he had received Mr. McCarthy’s call. Appellant denied that he had. Subsequently, Sergeant Bohnert and appellant listened together to a telaudgraphy tape of this call, kept in the normal course of police business, and the Sergeant recognized appellant’s voice identifying himself to Mr. McCarthy.

We conclude there is substantial evidence to support the findings of the Board and rule this Point against appellant.

Affirmed.

GUNN, P. J., and WEIER, J., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis Keith DITTMAN, Defendant-Appellant.
    No. 10871.
    Missouri Court of Appeals, Springfield District, En Banc.
    July 13, 1978.
    Motion for Rehearing and to Transfer Denied July 24, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Richard L. Parker, Asst. Public Defender, Vienna, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant was found guilty by a jury of receiving a stolen hydraulic jack, in violation of § 560.270 RSMo 1969, and sentenced to five years imprisonment. He appeals, contending the trial court erred in overruling his motion for acquittal because the evidence did not show he received the jack or that he knew it was stolen.

In determining the sufficiency of the evidence to sustain a conviction on a motion for a judgment of acquittal, the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Wood, 553 S.W.2d 333 (Mo.App.1977).

Between the evening of February 4, 1976 and the morning of February 5,1976, several tools including the hydraulic jack were taken from a charcoal kiln near Belle, Missouri. The police located the property in a metal shed in the Belle area, and began a 24-hour surveillance. While the officers watched the building, a car passed the shed, turned around, came back, and stopped in front of the shed. The officers identified Butch Hollandsworth as the driver, Gail Price, in the front seat, Gary Basham, seated in the left rear seat, and defendant in the right rear seat of the car.

Hollandsworth and Basham had loaded the jack and some tools in the backseat of the car, when the police approached and ordered them to stop. As the car sped away, one officer fired four shots at the car. While pursuing the car, the police found the jack and other items along the road in the direction the getaway ear had gone. The jack was lying along the right side of the road. The car was stopped approximately forty minutes later and defendant was arrested. When asked to explain the possibility of his fingerprints being found on the property, defendant said that was not possible because he had worn gloves.

The statute prohibits the receiving of property knowing it was stolen from another. Receive as used by the statute means taking possession of the property. State v. Reo, 510 S.W.2d 211 (Mo.App.1974). Actual possession does not have to be shown and possession need not be exclusive. Constructive possession, the power and intent to control the stolen property, is sufficient, in a prosecution for receiving stolen property, to satisfy the essential element of having received the goods. State v. Simone, 416 S.W.2d 96 (Mo.1967).

Here, the evidence is insufficient to establish the element of possession necessary to convict defendant of receiving stolen property. It shows that Hollandsworth and Basham carried the jack and other tools from the shed and loaded them in the backseat of the car. There is no evidence that defendant assisted them in any way.

The state argues that an inference of possession in defendant arises from his presence in the right rear seat of the car at the shed, the jack’s location in the backseat near defendant and later along the right side of the road, and defendant’s statement that his fingerprints could not be on the jack because he was wearing gloves.

Mere access or proximity to stolen goods, however, is not enough to infer possession. State v. Watson, 350 S.W.2d 763 (Mo.1961). Control and dominion are looked to by courts to determine possession. State v. Webb, 382 S.W.2d 601 (Mo.1964); State v. Watson, supra. There is no showing that defendant exercised any control over the hydraulic jack. The evidence falls short of establishing defendant’s possession of the jack. An essential element of the charge of receiving stolen property is missing. The judgment must, therefore, be reversed. Further, the defendant must be discharged. The Double Jeopardy clause of the 5th Amendment to the U. S. Constitution precludes a second trial once the appellate court finds the evidence insufficient to sustain the jury’s guilty verdict. The prosecution is not allowed another opportunity to establish defendant’s guilt. Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The judgment is reversed and defendant ordered discharged.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Eduardo CARMELO, Appellant, v. Delbert MILLER, Jr., Clifton W. Gates, Howard F. Ettings, Vincent G. Rogers, A. J. Cervantes, as members of the Board of Police Commissioners of the City of St. Louis, Missouri, and Ronald Strothman, Barry Awalt, George McDonagh, and St. Louis National Baseball Club, Inc., a corporation, Respondents.
    No. 38706.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 18, 1978.

      Goldstein, Tessler, Brown & Geigerman, Steve K. Brown, Clayton, for appellant.
    Jack L. Koehr, City Counselor, John J. Fitzgibbon, Associate City Counselor, St. Louis, for Delbert Miller, Jr., et al.
    Roberts, Heneghan & Coffelt, Inc., Jay G. Newquist, St. Louis, for Ball team.
   ALDEN A. STOCKARD, Special Judge.

Plaintiff sought actual and punitive damages for assault and battery and false imprisonment. The trial court directed a verdict in favor of all defendants, and plaintiff has appealed.

On the night of August 4, 1971, plaintiff attended a baseball game at the Busch Memorial Stadium. During the latter part of the game defendants Await, Strothman and McDonagh, members of the St. Louis Police Force who had “secondary employment” by the St. Louis National Baseball Club (hereafter Baseball Cardinals) as security guards, received information that someone was displaying a gun at one of the concession stands. The information included the description of two men who were involved in the incident. One was a Mexican wearing a red shirt and black pants, and the other was a black male wearing gold colored pants. The officers did not find anyone at or near the concession stand fitting either of these descriptions, but the game had ended and two of the officers left the stadium to look for persons meeting the descriptions. In a nearby parking lot they observed appellant, who was a Mexican and was wearing a red shirt and black pants, and his companion, who was black and was wearing gold colored pants. Appellant and his companion were stopped and searched, but neither had a gun and none was found in the area. Appellant was placed under arrest and was taken to the 4th District Police Station but no charges were filed against him.

Appellant testified that at the time the police stopped him in the parking lot he was beaten and kicked and sustained injuries requiring medical treatment. This was denied by the three officers.

We will first consider appellant’s claim against the Baseball Cardinals.

The three police officers as members of the St. Louis Metropolitan Police Department were “on duty” 24 hours a day. During their “secondary employment” by the Baseball Cardinals they did not lose their status as police officers. Officer Strothman went to the concession stand when it was reported to him by an usher that a person there was displaying a gun, and he there met officers Await and McDonagh. When he and Officer McDonagh left the stadium Officer Await remained in the area in an attempt to locate witnesses. However, the game had ended and the area was a “mass of confusion” with people trying to leave the stadium so he remained at the concession stand only a few minutes. He then “checked out” himself and the other two officers from their duties with the Baseball Cardinals and joined officers Strothman and McDonagh at the parking lot where they had stopped appellant and his companion.

Plaintiff charged the Baseball Cardinals with vicarious liability as the employer of the three police officers. A private employer is not immune from liability for the negligent or wanton acts of an employee performed within the scope of his duties for the reason that the employee has an official status as a police officer. Neallus v. Hutchinson Amusement Co., 126 Me. 469, 139 A. 671 (1927); Leach v. Penn-Mar Merchants Association, Inc., 18 Md.App. 603, 308 A.2d 446 (1973); 53 Am.Jur.2d Master and Servant § 416; 57 C.J.S. Master & Servant § 565; Annotation, 55 A.L.R. 1197. However, where the employee occupies a dual status, that is, as an employee and also as a police officer, in the absence of a statute, where the employer does no more than relate the material facts to the officer and leaves to him the decision as to what he should do as a police officer, the employer is not liable for the acts of the police officer. Kidder v. Whitley, 336 Mass. 307, 145 N.E.2d 684 (1957).

In this case the information that someone was displaying a gun, and presumably also the information as to the description of the persons involved, was furnished by an usher at the stadium, an employee of the Baseball Cardinals, but that is all he did. Before any contact was made with appellant all. three officers “checked out.” There is no evidence that the Baseball Cardinals through any agent gave any instructions to the police officers, and there is no evidence that any improper conduct, which if it occurred was outside the stadium and on a public street, was done at the insistence, direction or request of any agent of the Baseball Cardinals. Under these circumstances the trial court properly directed a verdict in favor of the Baseball Cardinals.

We turn now to appellant’s claim against those named persons alleged to constitute the Board of Police Commissioners of the City of St. Louis. There is no claim against the named persons as individuals, but only as a Board. The specific basis for the claim is that the Board “failed to adequately train, supervise, command and control” the three named individual police officers and were thereby “derelict in their duty to provide [appellant] with adequate, safe and just police protection.”

There is no evidence that the named individuals were members of the Board of Police Commissioners. But assuming that a failure to perform the duties of their public office would create the alleged cause of action in plaintiff, there is no evidence that the Board failed to train, supervise and control the police officers. In addition, the Board of Police Commissioners of the City of St. Louis is created by statute of the State of Missouri, § 84.020 RSMo 1969, and the members, except one acting ex officio, are appointed by the Governor subject to Senate confirmation. The operation and maintenance of a police force for the City of St. Louis is a governmental function. Hinds v. City of Hannibal, 212 S.W.2d 401 (Mo.1948). Plaintiff’s claim against the Board of Police Commissioners is based on the negligent or wrongful performance of a governmental function, and is a tort action to which the doctrine of sovereign immunity applies whether the Board be considered a municipal agency, Hinds v. City of Hannibal, supra, or a state agency, Western Robidoux Printing & Lithographing Co., Inc. v. Missouri State Highway Commission, 498 S.W.2d 745 (Mo.1973). The trial court properly directed a verdict for the individuals named as members of the Board of Police Commissioners.

At the conclusion of the evidence on the part of plaintiff, motions for a directed verdict were filed on behalf of all defendants. A conference between the court and counsel was held at which the court indicated that it was going to sustain the motions as to the Baseball Cardinals and the individuals named as members of the Board of Police Commissioners. When the court reconvened it apparently believed it advisable to inform the jury why the case was not going to be submitted to them for decision, and it made a rather lengthy explanation as to why it was directing a verdict in favor of the Baseball Cardinals and the Board of Police Commissioners. The court then made this statement:

“I told the plaintiff’s attorney that so far as the individual police officers were concerned — what they did or what they did not do — would be submitted to the jury to determine whether they acted rightly or wrongly, the individual police officers. The Court was going to submit that issue to you for your decision. The plaintiff’s attorney informed the Court that I might just as well dismiss the case against everybody, he did not want the case submitted against three officers alone. That’s why you do not see the plaintiff or his attorney here in Court. I said, ‘If that’s the way you want it that’s the way it will be.’ ”

The record shows that after the above statement was made and before the court instructed the jury that its verdict should be in favor of all defendants, plaintiff’s counsel entered the courtroom, but no objection was made that the instruction included the three police officers as well as the other defendants, and no request was made that even though the court was directing a verdict in favor of the Baseball Cardinals and the Board of Police Commissioners, that the case against the three police officers should be submitted to the jury.

From the above it is clear that plaintiff indicated that he did not want the case submitted to the jury as to only the three police officers, and we have ruled that the trial court correctly directed a verdict as to the other defendants. In these unusual circumstances we conclude that the directed verdict as to the three police officers was entered with the acquiesce and consent of plaintiff if the directed verdict was proper as to the other defendants, which it was. Plaintiff cannot now contend that the court erred in not submitting the case to the jury as to the three police officers alone.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: SMITH, Judge.

text:
    In re the MARRIAGE OF Samuel Alfred ROYALL, Appellant, and Colette Yvonne Royall, Respondent.
    No. 38960.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 18, 1978.

      Evans & Dixon, Jeffry S. Thomsen, St. Louis, for appellant.
    Larry Carp, Clayton, Allan F. Stewart, Legal Aid Society, Clayton, Paul E. Ground, Manchester, for respondent.
   SMITH, Judge.

Samuel Royall, petitioner, appeals from the action of the trial court, granting the motion of Colette Royall, respondent, to amend a dissolution decree nunc pro tunc.

The original decree was granted April 25, 1974. Prior to that the parties entered into a separation agreement which provided, among other things, for the respondent to have custody of the six minor children and for the petitioner to pay child support. The parties also drafted Attachment A, containing provisions for temporary custody and visitation of the children by petitioner. It further provided that “Defendant ordered to pay to plaintiff” specified sums for child support for each of the six minor children. Samuel Royall was the plaintiff (actually petitioner), Colette the defendant (actually respondent). The decree granted custody of the children to Colette, visitation rights and temporary custody to Samuel as per attachment A and provided that “Petitioner have and recover child support as per attachment A.”

On September 2,1976, Colette filed a writ of garnishment, alleging that Samuel was delinquent in child support payments. On December 14, 1976, the petitioner filed a motion to dissolve the writ of garnishment alleging that the 1974 dissolution decree did not order him to make support payments to respondent. On January 5, 1977, the court sustained Samuel’s motion.

On January 7, 1977, respondent filed a motion to amend the decree nunc pro tunc alleging that the dissolution decree erroneously orders Colette to pay child support to Samuel, whereas the judgment of the court was that Samuel should pay child support to Colette. On January 24, 1977, the court amended the dissolution decree to read as follows: “that said Respondent have and recover child support as per the Stipulation and Agreement of the parties.” Samuel alleges that amending the decree nunc pro tunc was improper because (1) the alleged error was not a mere clerical error and (2) there is no evidence that the change reflects the actual, original judgment of the court.

In reviewing a trial court ruling on a motion to amend nunc pro tunc, there are certain guidelines to be followed. First, there is a presumption that the judgment entered is the judgment actually rendered by the court and the burden is on the mov-ant, in this case Colette, to show by competent evidence that a different judgment was in fact rendered. Aronberg v. Aronberg, 316 S.W.2d 675, 681[7] (Mo.App.1958). There is also the admonition to administer this character of relief with caution, for it affords opportunity to alter judgments previously given, under the guise of correcting clerical misprisions and these alterations may work hardship. Pulitzer Publishing Co. v. Allen, 134 Mo.App. 229, 113 S.W. 1159 (Mo.App.1908) l. c. 1160.

It is well settled that mistakes of a clerical nature may be corrected nunc pro tunc to speak the truth of what actually happened. First National Bank of Collinsville v. Goldfarb, 527 S.W.2d 427, (Mo.App.1975) [2-4]. Appellant too narrowly interprets the term “clerical error.” Since the error is not an error of the clerk in recording the judgment but a drafting error of the parties, he asserts that it is not a clerical error. The term “clerical” is not interpreted in such a narrow sense. A mistake can be clerical whether made by the clerk, the judge, the jury, a party or an attorney. First National Bank of Collinsville v. Gold- farb, supra. The important question is not who made the error but whether the error was made in rendering the judgment or in the entry of it. It is the nature of the error, not the identity of the person who made it, that determines whether it is “clerical.” If the error is attributable to the exercise of judicial consideration or discretion, it may not be corrected by nunc pro tunc proceedings. It is not proper to amend a decree nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did, or to conform to what the court intended to do but, did not do. First National Bank of Collinsville v. Goldfarb, supra.

In this case two errors were made. Initially the attorneys or the parties transposed the words “defendant” and “plaintiff” in Attachment A. This in turn led to preparation of the decree erroneously. These are mechanical, clerical errors.

The purpose of the nunc pro tunc amendment is to make the record conform to what was actually done where there is a basis in the record for the amendment. Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513, (1948) [7]. It is well established that the court may search the record for evidence of what happened and may consider the court files, motions filed in the cause and clerical entries, both those made before and after the act in question, in finding that basis. First National Bank of Collinsville v. Goldfarb, supra, [5, 6]. An order nunc pro tunc cannot be based upon the judge’s recollection of what took place or upon parol evidence. Aronberg v. Aronberg, 316 S.W.2d 675, (Mo.App.1958) [8].

Appellant’s assertion that the judgment as amended is not the actual judgment rendered is contradicted by the record. The Stipulation and Agreement of the parties clearly requires petitioner to pay child support to the respondent. A minute entry was made on the date of the decree as follows: “Stipulation Agreement filed, marked Exhibit ‘1’ and found to be conscionable, to be incorporated in and made part of decree. Parties ordered to perform the terms thereof.” Form 43 which was signed by both parties, their attorneys and the judge and dated April 25,1974, provides “Petitioner, Husband ordered to pay the Wife, Respondent child support as per attachment A.” The decree itself orders care, custody and control of the minor children be given to Colette, but then requires the person having custody to pay child support to the party who does not. The record shows conclusively that the judgment rendered by the court was to order Samuel to pay child support to Colette.

Appellant further contends that the intention of the court was to render a judgment pursuant to attachment A. Therefore, he contends the amendment which says “per Stipulation and Agreement” is contrary to that original judgment. In this he is correct. However, we are empowered to enter the judgment that the trial court should have entered. We, therefore, amend the last paragraph of the “Memorandum and Order” entered on the motion to correct the decree nunc pro tunc so that paragraph reads as follows:

“It is therefore ordered and adjudged that the typed Decree in the above-styled cause be corrected so that paragraph 3, clause 10 thereof reads as follows: ‘that said respondent have and recover child support as per attachment A’; and that attachment A to the decree be corrected so that the first line under the heading “Child support” on page 2 reads; ‘Petitioner ordered to pay to respondent’ and that respondent’s motion to amend the Decree nunc pro tunc be, and the same hereby is, granted.”

As amended the order is affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: CLEMENS, Presiding Judge.

text:
    Ralph W. KOLLER, Appellant, v. RANGER INSURANCE CO., Respondent.
    No. 39147.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 18, 1978.
    Robert J. Blackwell, Farmington, for appellant.
    Raymond R. Roberts, Roberts & Roberts, Farmington, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff has appealed the trial court’s order dismissing his original petition with prejudice. We reverse and remand with instructions to grant plaintiff leave to file an amended petition. The issue: Did the trial court commit reversible error by denying plaintiff leave to amend?

Our review is limited to the procedural question and does not reach the merits of plaintiff’s petition.

Plaintiff’s petition was filed July 16, 1976. Defendant moved to dismiss, charging failure to state a claim and improper venue. Various motions and memo-randa followed. On March 25, 1977 the trial court dismissed plaintiff’s petition for failure to state a cause of action. Plaintiff promptly moved for a new trial and to set aside and vacate, with suggestions in support thereof, and requested leave to file an amended petition pursuant to Civil Rule 67.06, VAMR. Attached was a proposed amended petition. The trial court summarily denied plaintiff’s motion and request without argument. Since the dismissal was not specified to be without prejudice under Civil Rule 67.03, VAMR, it was with prejudice and was an adjudication upon the merits. Travelers Indemnity Company v. Chumbley, 394 S.W.2d 418[1] (Mo.App.1965). Plaintiff appeals from this final judgment, contending the trial court abused its discretion by refusing to grant him leave to amend. We agree.

In Thompson v. Fiber-Lum, Inc., 464 S.W.2d 514, l.c. 517 (Mo.App.1971), we said: “While there are decisions which hold that under certain circumstances a court may exercise its discretion in granting, or refusing to grant, leave to amend, an examination of the cases reveals that in general the discretion is affected by the timeliness of the application . . . Here, it was plaintiff’s original petition which was held to be deficient (rightly or wrongly we are not called upon to decide) and in accordance with the letter as well as the spirit of Civil Rules 67.05 [now 67.06] and 55.53, the general policy is stated in Dietrich v. Pulitzer Publishing Co., Mo., 422 S.W.2d 330[8] (Mo.1968): “Ordinarily when a first pleading is ruled to be insufficient in a trial court, the party is afforded a reasonable time to file an amended pleading if desired.” See also, Civil Rules 55.33(a) and 67.06, VAMR.

The trial court’s record shows plaintiff made a timely request for leave to file his amended petition and had been given no previous opportunity to do so before the court dismissed his petition. Plaintiff showed good faith by providing the trial court with his amended petition and giving reasons the amendment should be permitted. There is nothing in the record to indicate prejudice to the defendant or harmful consequence of delay.

Defendant fails to prove — and we find no authority to support — his contention the trial court did not err. In Cady v. Hartford Accident and Indemnity Co., 439 S.W.2d 483[6] (Mo.1969), the trial court was held not to have abused its discretion in dismissing plaintiff’s third petition without leave to amend where plaintiff did not request leave to do so and did not demonstrate what facts he would allege if leave were granted. In Saigh v. Busch, 396 S.W.2d 9[30] (Mo.App.1965), we ruled on the fifth attempt by plaintiffs to meet the inadequacies of their petition. Those cases are not in point.

We know a party does not have an absolute right to file even a first amended petition. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907[8] (1948). A trial court’s discretion, however, is limited by Civil Rule 67.06, VAMR: “On sustaining a motion to dismiss a claim, counterclaim or cross-claim the court shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed.” In Prewitt v. Continental Ins. Co., 538 S.W.2d 902[10] (Mo.App.1976), we said: “ ‘The whole spirit of our present rules of practice is to freely permit amendments to pleadings “when justice so requires.” ’ ”

We hold the dismissal with prejudice was too harsh and the court’s refusal to grant plaintiff leave to file an amended petition was an abuse of discretion.

Judgment reversed and the cause remanded with instructions to grant plaintiff leave to file an amended petition.

SMITH, and McMILLIAN, JJ„ concur.


text:
    John A. GANTZ, Respondent, v. Steve Kenneth LEIBOVICH, Appellant.
    No. 39480.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 18, 1978.

      John T. Sluggett, III, Clayton, for respondent.
    Kortenhof & Ely, Ben Ely, Jr., St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Action for damages in a collision case in which the jury returned a unanimous verdict for defendant. Plaintiff was a passenger in his father’s eastbound car which made a sudden left turn into the path of defendant’s westbound car. Defendant’s stopping distance was a critical factual issue.

After entering judgment for defendant pursuant to the verdict the trial court granted plaintiff a new trial on the sole ground of jury misconduct in reading a booklet on stopping distances. Defendant appeals, contending the court erred because there was no admissible evidence to support a finding the jury had considered evidentia-ry matters outside the record. We agree.

Plaintiff’s contention of jury misconduct is based initially on the affidavit of juror Cheryl Klemme. She stated a Missouri Drivers’ Guide was circulated among the 'jurors and she was influenced by the speed and stopping distance schedule shown therein. The schedule closely paralleled the trial testimony of plaintiff’s accident reconstruction witness.

At the trial court’s hearing on the motion for new trial, over defendant’s objections, a copy of the drivers’ guide was introduced in evidence and each juror testified as to juror Klemme’s conduct, but only she stated the schedule had influenced her.

The rule is well settled that a juror may not, over objection, be heard to impeach the jury’s verdict. Such evidence is inadmissible. Mayberry v. Clarkson Construction Company, 482 S.W.2d 721 [2-4] (Mo.1972). See also Davis v. Kansas City Public Service Co., 233 S.W.2d 669 [6, 7] (Mo.banc 1950), where the supreme court was faced with essentially the same issue presented here. There, the trial judge had considered testimony from the foreman that during deliberations, he had obtained a book giving stopping distances and including reaction time at various speeds. He had made notes from the book and read his notes to the other jurors. The court held this testimony was inadmissible, whether the impeaching juror concurred with or dissented from the verdict, and whether his acts were committed inside or outside the courtroom. The court squarely held it was error to admit such testimony. The latest supreme court decision on the issue adheres to this “firmly established rule of public policy.” State ex rel. State Highway Commission v. Ballwin Plaza Corp., 474 S.W.2d 842 [5] (Mo.1971). Accordingly, we hold the evidence here was inadmissible because defendant timely objected to the affidavit and jury testimony.

Plaintiff cites only Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S.W.2d 154 (1941) to support the granting of a new trial. That case is readily distinguishable because it was based on unchallenged evidence of misconduct, the court holding at l.c. 158: “All the evidence was received by the court and, on this appeal, we are not called upon to rule errors in the admission of rejection of evidence.” And, the Middleton court acknowledged the time-honored principle that “Where, because of the well-founded rule that the testimony of a juror will not be received for the purpose of impeaching the verdict of a jury, there was no competent evidence of misconduct on the part of the jury (that is, no competent evidence by reason of the incompetency of a juror to give such evidence as was offered).”

We hold that neither the affidavit nor the testimony of the jurors was admissible after trial to impeach the previous verdict, and the court erred in granting a new trial on the alleged ground of jury-misconduct.

Cause remanded with directions to re-enter judgment for defendant.

SMITH and McMILLIAN, JJ., concur.

      . In McDaniel v. Lovelace, 439 S.W.2d 906 [3, 4] (Mo.1969), Middleton is cited as authority for the rule that post-trial evidence of alleged jury misconduct is inadmissible.


author: STEPHAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bobby Lewis SHAW, Defendant-Appellant.
    No. 38923.
    Missouri Court of Appeals, St. Louis District, Division No. Two.
    July 18, 1978.

      James M. Smith, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Stanley H. Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEPHAN, Judge.

Defendant Bobby Lewis Shaw was found guilty by a jury of first degree murder and sentenced to life imprisonment by the court pursuant to the Second Offender Act, § 556.280, RSMo 1969. Defendant appeals that conviction, contending that the trial court erred in (1) failing to grant an acquittal at the close of the entire case; (2) denying his motion for a new trial to consider newly discovered evidence not known at the time of trial; and (3) denying his motion for a new trial due to the state’s failure to produce defendant’s brother, Vancel Shaw, as a witness at trial. We hold these points to be without merit and accordingly affirm the conviction.

The state’s principal witness, defendant’s younger brother, Steven Shaw, testified that the deceased, Calvin Morris, was on friendly terms with the entire Shaw family including defendant. Morris was the father of the infant son of defendant’s sister and was in the habit of visiting the Shaw household several times a week to see the baby. On the day the shooting took place, September 17,1975, Morris stopped by the house in the morning. The baby was not there, and Morris left after a few minutes. He told the Shaws that he was going to look for work and would return in a few hours. That afternoon, Steven Shaw was in the basement of the house when he heard sounds from the living room above, as though heavy chairs or tables were being moved. He immediately ran up the stairs to investigate the noises and arrived at the open doorway at the top of the stairs just in time to see defendant fire a gun at Calvin Morris. He testified that Morris was standing in a corner of the living room; defendant stood in the same room with his back to the doorway. Steven’s view of the entire incident lasted one or two seconds. During that brief time, neither Morris nor defendant spoke.

Immediately after the shooting, Steven ran back downstairs to get his older brother Vancel, who, with his girlfriend, also in the basement, were the only other people in the house at the time. Together they went upstairs; Vancel took the gun from the defendant and Steven called the police. Steven testified that the gun belonged to his brother Alonzo and was normally kept under Alonzo’s bed in a basement bedroom. While they were waiting for the police, defendant “went in” Calvin Morris’ pocket; Steven, however, did not see him remove anything from the pocket.

Barry Hinchey was one of the first two police officers to arrive at the scene in response to Steven Shaw’s call. He testified that defendant offered two voluntary statements about the crime as he and defendant were waiting in a patrol car after defendant had been arrested and given his “Miranda warnings”. Defendant told Hin-chey that he had become involved in an argument with Morris, that Morris had drawn a knife, and that he went and got the gun and shot Morris. Later, Hinchey testified, he retrieved the gun from the house and brought it to the car where the defendant was still seated. Seeing the gun, the defendant spontaneously identified it as the weapon that killed Morris. He stated that he had intended to sell the gun to Morris, and that it accidentally discharged as he was showing it to him. Further testimony indicated that no weapon was found on or near the body of the victim. Defendant did not testify nor did anyone else on his behalf.

Defendant was convicted under § 559.010, RSMo 1969, which defines first degree murder to include “willful, deliberate and premeditated killing”. Defendant contends, in his first assignment of error, that the state’s evidence fails to establish a submissi-ble case of first degree murder in that it does not justify a finding of the element of deliberation, the factor which distinguishes first degree from second degree murder. State v. Jewell, 473 S.W.2d 734, 738 (Mo.1971). Defendant contends that, at most, he could have been found guilty of second degree murder.

“Deliberation” is defined by the Missouri courts to indicate a “cool state of the blood” in the actor. State v. Marston, 479 S.W.2d 481, 484 (Mo.1972); State v. Davis, 400 S.W.2d 141, 145 (Mo.1966); State v. Small, 344 S.W.2d 49, 51 (Mo.1961). The deliberate act is one performed as a “free act of the will”, Davis, supra, 146, and “while not under the influence of a violent passion suddenly aroused by some provocation”. State v. Anderson, 384 S.W.2d 591, 608 (Mo. banc 1964). “Premeditation” indicates that the accused thought of his act for any length of time before acting, Marston, supra, 484; “deliberation” indicates that he did so in a cool frame of mind. It is not necessary that the actor brood over his actions for an appreciable period of time to constitute deliberation. Davis, supra, 146. Inasmuch as premeditation about and execution of an act “ ‘may be as instantaneous as successive thoughts of the mind’ ”, Id., quoting from State v. McDaniel, 94 Mo. 301, 7 S.W. 634, 636 (Mo.1887), and deliberation refers but to the state of mind during such premeditation, the element of deliberation in a homicide may occur just as instantaneously.

An intentional killing wrought with ■ a deadly weapon used upon a vital part of the body, with nothing more appearing, gives rise to a presumption of second degree murder. However, the further element of deliberation may be inferred from the circumstances, thus supporting a finding of first degree murder. State v. Davis, supra, 145. In considering defendant’s contention that the state has failed to prove that element of deliberation, we review the evidence to determine whether reasonable men could have found beyond a reasonable doubt as the jury did in this case. State v. Turnbough, 497 S.W .2d 856, 858 (Mo.App.1973). In doing so we take “as true the evidence favorable to the state and the favorable inferences to be drawn therefrom and evidence to the contrary is to be rejected. Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence, considered in the light most favorable to the state and all inferences therefrom, disregarding evidence to the- contrary, is sufficient to make a submissible case. If there is sufficient evidence to support the finding of the jury, it should not be disturbed on appeal.” State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977). See also State v. Howell, 543 S.W.2d 836, 840 (Mo.App.1976); State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974).

Measuring the evidence against the principles set out above, we believe there was sufficient evidence to support a submission to the jury of murder in the first degree. Although Steven Shaw’s view of the entire incident was extremely brief, a jury could infer from several aspects of his testimony that defendant acted in a “cool state of blood” in shooting Morris. The scene Steven viewed was static; the atmosphere was unlike that in which one would suppose the heat of passion to be operative. Both Morris and defendant were motionless. Morris was not moving toward defendant, nor, apparently, was he armed. No harsh words were exchanged between the two. Neither, in fact, spoke. The jury could reasonably infer the element of deliberation from these facts, and we may not substitute our judgment for that of the jury.

Defendant contends, in his second assignment of error, that the trial court erred in denying his motion for a new trial to consider newly discovered evidence which would offer “a high probability” of his acquittal on the charge of first degree murder. In a hearing on that motion, defendant’s younger brother, Donald Shaw, testified that he came home from school on the day of the shooting while the police were still in the apartment investigating the incident, and that he observed a kitchen knife on a coffee table in the living room some three feet from the spot where Calvin Morris had been standing when he was shot. The presence of the knife was not noted in any of the police reports, nor was it mentioned at trial. Defendant maintains that Donald Shaw’s testimony lends strong credence to a theory of self-defense, and, therefore, the court erred in not granting a new trial on that basis.

In order to secure a new trial on these grounds, a movant must show (1) that the new evidence came to his knowledge after the trial, (2) that his failure to discover such evidence prior to trial was not owing to a lack of due diligence on his part, (3) that the evidence is so material that it would probably produce a different result in a new trial, and (4) that the evidence is not merely cumulative or intended to impeach the testimony of the witness. State v. Harper, 473 S.W.2d 419, 421 (Mo. banc 1971); State v. Harris, 413 S.W.2d 244, 247 (Mo.1967). As this remedy is not one favored by the courts, the trial court is vested with a great deal of discretion in determining its propriety. State v. Harper, supra, 421; State v. Riley, 536 S.W.2d 501, 505 (Mo.App.1976). Furthermore, as was said in Riley, “the burden is on the defense to show compliance with the above requirements.”

Defendant’s contention that he has met these standards is not supported by the record. We question whether evidence that there was a knife in the room approximately one hour after the shooting is of such significance that it would “probably” bring about a different result upon retrial. However, we need not decide the point on that issue for there is a total absence of any showing of diligence to discover Donald Shaw’s testimony before or during the trial. Reasonable diligence under the facts of this case would have dictated, at the very least, inquiries directed toward those potential witnesses to whom defendant had the easiest access, the members of his immediate family. Donald Shaw, defendant’s brother, was living in the same household as was defendant at the time of the incident. Defendant has made no allegation that Donald Shaw was questioned prior to trial and provided misleading or false information, or that other witnesses misled him regarding Donald Shaw’s presence at the scene after the incident. Cf. Foerstel v. St. Louis Public Service Co., 241 S.W.2d 792, 795 (Mo.App.1951). In short, he has not provided any explanation for Donald Shaw’s absence at trial nor attempted to justify that absence. The trial court did not abuse its discretion in denying a new trial on the basis of newly discovered evidence. State v. Riley, supra, 505[15].

Defendant’s final point is that the trial court erred in failing to grant a new trial because the state did not call Vancel Shaw, another brother, as a witness at the trial. In his motion for new trial, defendant alleged that Vancel Shaw, an endorsed witness, contacted defense counsel after the trial and said that he would have testified that defendant made no statement to Officer Hinchey at the time of his arrest and that defendant did not go into the victim’s pockets, as Steven Shaw had testified. At the time of the trial Vancel Shaw was living in Seattle, Washington.

To the extent that defendant seeks in this point to convict the trial court of error for not granting a new trial because Vancel Shaw’s testimony is newly discovered evidence, what was said of the previous point is applicable here: defendant fails to show that reasonable diligence would not have disclosed what Vancel Shaw’s testimony would have been. Furthermore, we note the additional fact that the only purpose the testimony would have served would have been to tend to impeach the testimony of Officer Hinchey concerning the statements made by defendant and the testimony of Steven Shaw that defendant reached into one of the victim’s pockets after the shooting. Newly discovered evidence which only tends to impeach is not grounds for a new trial. State v. Whitaker, 312 S.W.2d 34, 41[15] (Mo.1958); State v. Lindley, 545 S.W.2d 669, 672[10] (Mo.App.1976). Finally, the motion for new trial is neither verified nor accompanied by an affidavit of Vancel Shaw, whose cooperation is presumably available to defendant, his brother. As was said in Whitaker, supra, 41, with respect to motions for new trials based on newly discovered evidence, “The affidavit of the witness himself should be produced, or its absence accounted for.” See also State v. Underwood, 470 S.W.2d 485, 487[5] (Mo.1971): “It is a clearly established rule that unverified allegations in a new trial motion do not prove themselves

Defendant apparently also argues that, because Vancel Shaw was endorsed as a witness by the state, failure to call him amounted to wrongful suppression of evidence. While it is true that the state “may not suppress evidence vital to the defense or convey incorrect or misleading information to a defendant,” State v. Napolis, 436 S.W.2d 645, 649 (Mo.1969), neither is the state required to call every person whose name is endorsed on the information or indictment as a potential witness. State v. Jones, 456 S.W.2d 7, 8 (Mo.1970). Moreover, contrary to defendant’s further contention, no inference adverse to the state and in favor of the defendant arises from the state’s failure to call such a witness. State v. McClain, 531 S.W.2d 40, 45 (Mo.App.1975). Mere endorsement of Vancel Shaw’s name did not serve to make him more available to the state than to his brother; and no contention is made that the state took any action to conceal his testimony from defendant or to mislead defendant as to what his brother’s testimony would be. The motion for new trial was properly denied.

Judgment affirmed.

STEWART, P. J., and REINHARD, J., concur. >

      . The instruction given the jury in this case on first degree murder, MAI-CR 6.02, avoids the use of the words “deliberate” or “deliberation”. Rather, it presents the issue of deliberation by instructing the jury to consider whether defendant “reflected upon this matter coolly and fully before shooting” Calvin Morris.

      . In the argument portion of his brief, defendant states that Vancel Shaw “was prepared to testify that the appellant had not been given any sort of Miranda warnings by arresting officers” and argues that such testimony “becomes crucial to the dispute over whether or not Bobby Shaw was ever informed of his right to remain silent.” The variance between the motion and brief might warrant our holding that the point has not been properly preserved. However, we treat it on the merits.


author: HOGAN, Judge.

text:
    Douglas W. THOMPSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10802.
    Missouri Court of Appeals, Springfield District.
    July 24, 1978.

      George R. Wilhoit, Jr., Glenn E. Easley, Hyde, Purcell, Wilhoit, Edmundson & Merrell, Poplar Bluff, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

In this postconviction proceeding under Rule 27.26, V.A.M.R., petitioner Douglas W. Thompson seeks to vacate a life sentence imposed by the Circuit Court of Butler County on June 1, 1961, after a jury had found him guilty of first-degree murder. The trial court has denied an evidentiary hearing and has dismissed the motion on the grounds that all the matters alleged as grounds for relief are trial errors, do not constitute a collateral attack on the judgment and sentence and are therefore not subject to review under Rule 27.26. The petitioner appeals.

The proceeding under review was commenced on August 5, 1976. The original motion or petition averred, in vague and conclusional terms: (a) that one of the instructions given at the trial unlawfully shifted the burden of proof to the petitioner, and (b) that the trial court violated the due process clause of the 14th amendment to the United States Constitution by failing to instruct the jury on murder in the second degree or manslaughter. The petitioner upon oath replied to part 10(b) of the prepared form — “Prior to this motion have you filed with respect to this conviction [a]ny petitions in state or federal courts for habe-as corpus”? — by answering “No.” He further averred that no ground for relief set forth in the petition had been previously presented to any court, state or federal. Counsel was promptly appointed for the petitioner. The State moved to dismiss the petition without an evidentiary hearing upon the ground that the petitioner had not pleaded facts which would entitle him to relief, and that the errors complained of were not cognizable under Rule 27.26. The trial court took the matter under advisement, denied an evidentiary hearing and, relying on State v. Smith, 411 S.W.2d 208, 210[7] (Mo.1967), and like rulings, held that all the petitioner’s allegations were directed to trial errors and were therefore not subject to review under Rule 27.26. Well within 30 days thereafter, the court set aside its order and granted leave to file an amended motion.

On May 31, 1977, the petitioner filed an amended motion, setting up, in substance, that he had been deprived of a fair and impartial trial because: (a) he was not permitted to conduct a voir dire examination of the jury panel sufficient to determine whether or not the jurors were prejudiced; (b) the courtroom was “dominated” by the presence of armed police officers in the courtroom; (c) the petitioner was deprived of a trial by jury composed of a true cross-section of the community; and (d) the trial court improperly suppressed evidence which would have demonstrated the petitioner’s innocence, or “allowed” a witness to perjure himself. The petitioner prayed an eviden-tiary hearing. The amended motion was taken under advisement. The trial court again reviewed the original motion and considered the amendments thereto, denied an evidentiary hearing and again dismissed the petition upon a finding that all the allegations of the petition were directed to trial errors, did not constitute a collateral attack upon the judgment, and were not reviewable in a proceeding under Rule 27.26. The petitioner has appealed from this order.

While we do not propose to decide this appeal on procedural grounds, a prefatory note seems appropriate. The substance of the petitioner’s argument in this court is that even if the allegations of the petition are directed to trial errors, those errors were such as to infringe the petitioner’s constitutional rights; therefore he should have been granted an evidentiary hearing. There is authority for the.proposition that trial errors may be reviewed in a postconviction proceeding if the trial error affects constitutional rights, but that principle is subject to the qualification that trial error is not made reviewable simply by alleging in conclusional terms that the trial error violated the petitioner’s constitutional rights. Crawford v. State, 554 S.W.2d 491, 493[3] (Mo.App.1977). Certainly it is arguable here that the petition is" insufficient as a pleading, even if constitutional issues are indirectly involved. For example, the original motion, which appears to have been drafted pro se, contains the allegation that the burden of proof was unconstitutionally shifted to the defendant by the giving of a single instruction. The rule ordinarily applied to postconviction proceedings challenging state convictions is that the constitutional effect of a charge to the jury may not be determined by isolated review of a single instruction. Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973). Therefore it could easily and quite reasonably be maintained that allegations of constitutional error based on the giving of a single instruction raise no genuine constitutional question. Young v. Anderson, 513 F.2d 969, 972[3, 4] (10th Cir. 1975). And, without elaborating, a persuasive argument could be made that the petitioner’s challenge to the composition of the jury is insufficient to raise a constitutional question in the absence of an allegation that a contemporaneous (i. e., timely) objection was made by challenge to the array, or allegations of cause for untimely challenge and prejudice resulting from the improper selection of the venire. Our law requires that a challenge to the array of petit jurors be made before the jury is sworn, State v. Robinson, 484 S.W.2d 186, 188[4] (Mo.1972), and constitutional objections to the composition of a jury may be waived by failure to make a timely objection. Cf. Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505-2506, 53 L.Ed.2d 594, 606-607 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Fields v. State, 468 S.W.2d 31, 32[1] (Mo.1971).

The point of this extended preliminary discussion is to demonstrate that we would be obliged to affirm the trial court’s ruling were it not for the unusual circumstances which have been brought to the court’s attention on appeal. Those circumstances were not before the trial court, for whatever reason, but in our opinion its evaluation of the utility of an evidentiary hearing might have been quite different had they been made known.

The remarkable aspect of this appeal is raised by the State’s brief. Citing Layton v. State, 500 S.W.2d 267, 269 (Mo.App.1973), the State asks this court to take notice of the record developed in a federal habeas corpus proceeding which was decided adversely to the petitioner in 1977. This proceeding, through its various stages, has been incorporated in the State’s brief as an “appendix.” This printed appendix indicates that in 1976, petitioner filed a pro se application in the United States District Court for the Eastern District of Missouri seeking habeas corpus pursuant to 28 U.S.C. § 2254. One of the two points advanced by the petitioner was that he had been deprived of the effective assistance of counsel because his attorney, Byron Kearby, failed to brief and argue an appeal from the conviction petitioner now seeks to vacate. The District Court concluded that the petitioner had abandoned his appeal voluntarily for strategic reasons. This decision, according to the State, was affirmed by the United States Court of Appeals for the Eighth Circuit by memorandum decision. The State now argues most vigorously that the printed appendix should be noticed judicially here, and that the proceeding in federal court establishes as a matter of law that the petitioner deliberately bypassed normal appellate procedure, thereby waiving his right to assert constitutional issues in this proceeding. It is, of course, established law that where there is a deliberate bypass of orderly state procedure, whether for strategic, tactical or other reasons, a criminal defendant is precluded from raising a constitutional issue in a postconviction proceeding. See McCrary v. State, 529 S.W.2d 467, 472-474[7] (Mo.App.1975), where the principle of deliberate bypass is developed in scholarly detail.

This court cannot notice the “appendix” to the State’s brief. In some circumstances, where the record itself is before this court, it has been considered appropriate to take notice of the record in another proceeding, e. g., in Layton v. State, supra, 500 S.W.2d at 269-270, the court took notice of the record on appeal in a proceeding under Rule 27.26, principally on the ground that the postconviction proceeding was collateral to the criminal action. Noticing an appendix or other inclusion in the brief when the original record itself has not been produced in evidence is another matter; the “appendix” does not rise to the dignity of proof and cannot be considered on review. See, e. g., Davis v. Long, 521 S.W.2d 7, 9[4] (Mo.App.1975). Moreover, conventional notions of res judi-cata and collateral estoppel do not apply to federal habeas corpus proceedings. Wilwording v. Swenson, 502 F.2d 844, 848-849[5][6, 7] (8th Cir. 1974). All the same, we have no reason to suppose the Attorney General would undertake to misrepresent the record. So, we are left with a record which most strongly suggests that: (1) a full and complete transcript of the record of the original trial is available; (2) that the testimony of petitioner’s trial counsel is readily available in Butler County; (3) that the existence of the federal proceeding was not known to the Circuit Court of Butler County when this petition was considered; and (4) that some or all of the petitioner’s assertions of constitutional error may be barred by the doctrine of deliberate bypass, as fully elucidated in McCrary v. State, supra, 529 S.W.2d at 472-474, or by the petitioner’s procedural default, i. e., failure to timely object, as discussed in Wainwright v. Sykes, supra, 433 U.S. at 86, 97 S.Ct. at 2505-2506, 53 L.Ed.2d at 607-608.

We conclude the judgment should be reversed and the cause remanded for an evidentiary hearing. While this court is fully sensible of the gravity of constitutional error in any criminal trial, the State should have a reasonable opportunity to vindicate its criminal process, and if the petitioner’s claims of constitutional error were long ago deliberately forgone, he has no right to clog the docket with objections which are a product of his continuing legal education while in prison. Cf. Grant v. State, 486 S.W.2d 641, 643-644[1, 2] (Mo.1972).

The cause is reversed and remanded for an evidentiary hearing. The petitioner shall be permitted to amend his motion if he so desires, and shall be instructed to include all grounds for relief now available to him under Rule 27.26. It is so ordered.

All of the Judges concur.

      . See also Muilaney v. Wilbur, 421 U.S. 684, 704-705, 95 S.Ct. 1881, 1892-1893, 44 L.Ed.2d 508, 523 (1975) (concurring opinion, observing that it was “highly unusual” to consider the “abstract question of law” presented by the giving of a single instruction on federal habeas corpus).