author: McMILLIAN, Judge. SIMEONE, Presiding Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Chester Lee HOLLIMAN, Defendant-Appellant.
    No. 36150.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 4, 1975.

      James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant was convicted by a jury of arson and murder in the first degree. The Circuit Court of the City of St. Louis entered judgment on the jury’s verdict and sentenced defendant to serve consecutive sentences in the custody of the Missouri Department of Corrections of forty (40) years for the arson conviction followed by life imprisonment for the murder in the first degree conviction.

Four issues are raised: (1) the admissibility of evidence of offenses other than the offense charged; (2) the propriety of permitting one witness to testify as to an identification made by another witness; (3) the permissibility of allowing a jury view of a photograph of the deceased; and (4) the effect of the refusal of the court to exclude a prospective juror for cause, thereby making defendant use one of his peremptory challenges to excuse said juror.

On April 5, 1973, at or about 7:00 P.M., defendant was observed by Mrs. Bernice Atkins, a niece of his wife, Allimetria Holli-man, kicking and beating on Mrs. Holli-man’s apartment door. Both Mrs. Holliman and Bernice lived at 5777 Westminster in a six-family, three-story apartment complex. Bernice lived on the second floor and Mrs. Holliman on the first floor. When Bernice heard the noise, she stepped outside her apartment to investigate. Standing on the second floor landing, she called to defendant, who fired a shot at her. The pellet struck the wall and fell on the steps leading to the second floor landing.

Just before defendant fired at Bernice, he had successfully opened his wife’s apartment door. He entered and beat her over the head with the butt end of the rifle. Bernice came quickly to help her aunt. She was able to subdue defendant long enough for Mrs. Holliman to get free and run upstairs to telephone the police. When Bernice was no longer able to contain him, defendant shoved her down and left.

Officer Martin arrived at or about 7:30 P.M. After being told what had happened, he put out an arrest order for defendant. Prior to taking Mrs. Holliman to the hospital for treatment, Officer Martin noticed the broken lock and the debris, and found a spent shell casing near Mrs. Holliman’s apartment door. Officer Powell, a member of the Evidence Technician Unit, who arrived at about 7:57 P.M., recovered a spent bullet from the steps to the landing.

Willie Thompson, an attendant at a service station at 5748 Delmar Boulevard, the first street to the north of Mrs. Holliman’s apartment, identified defendant as the person to whom he had sold five gallons of gasoline in a metal container between 10:15 and 10:30 P.M.

After Mrs. Holliman’s return to her apartment from the hospital between 11:00 and 11:15 P.M., she heard a dog barking outside. When she looked out her window, she saw defendant coming from under the house. Immediately thereafter she noticed smoke seeping through her floor and called the fire department. When the firemen arrived, Mrs. Holliman was told to leave the building. Outside she was joined by Bernice, and while they were talking to Officer John Summers (the deceased), Mrs. Holli-man saw defendant on the southside of the street. He fired a shot at her which hit her coat shoulder. Both women ran back into the apartment and Officer Summers pursued defendant. The last time that either woman saw Officer Summers, he was chasing defendant between the 5773 Westminster apartment and a vacant lot to the east thereof. After defendant and the deceased disappeared behind 5773 Westminster, Mrs. Holliman heard a soft shot, like the one defendant had fired at her earlier, followed by two loud shots. Bernice heard the same reports — a soft one, like a .22 shot, followed by two loud ones.

After Officer Summers failed to answer four radio calls, a search for him was begun. Later two fellow officers found him unconscious behind 5773 Westminster. He was taken to St. Luke’s Hospital where he was pronounced dead on arrival.

During the autopsy a pellet was removed from the deceased and subsequently turned over to the police laboratory. At the rear of 5773 Westminster, a police officer recovered a .22 caliber casing and Officer Summers’ revolver, which held two empty shells and five live bullets.

On April 5, 1973, Charles Iison, owner of Pearlman’s Sporting Goods Store, positively identified defendant as the person to whom he had sold a single shot .22 caliber rifle and one box of .22 caliber shells. According to Mr. Iison, a single shot rifle “has to be open, a shell inserted, close it, the bolt brought down and then the gun is fired. You would have to open the bolt each time it would kick the empty shell out and then stick another shell in, one shell at a time. . [Y]ou have to pull the bolt back each time the empty shell comes out and you put another shell in.”

There is no controversy that the pellet recovered from the body of Officer Summers, the pellet on the stairwell and the shell casing recovered from the hallway and from the rear of 5763 Westminster had all been fired from the .22 caliber rifle purchased by defendant. Nor is there any controversy that the fire was of an incendiary origin. When defendant was taken into custody, he had in his possession the rifle in question. After being advised of his constitutional rights, defendant stated that he was out to get his wife because she had been seeing another man.

Defendant contends that the court erred in admitting testimony of his assault upon his wife and niece for the reason that these assaults were crimes for which he was not charged. Defendant admits that there are five (5) general exceptions with respect to the exclusionary rule regarding evidence of other crimes, one of the exceptions being motive. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1954); and State v. Wing, 455 S.W.2d 457, 464 (Mo.1970). The test as to whether evidence of other distinct crimes falls within one of the exceptions is the logical relevancy of the evidence to prove a material fact in issue. If logically relevant, the evidence is not to be rejected merely because it incidentally proves defendant guilty of another crime. On the other hand, if the court does not clearly perceive the nexus between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt and the evidence rejected. State v. Reese, supra, 274 S.W.2d at 307. In Billings v. State, 503 S.W.2d 57, 60 (Mo.App.1973), an arson case, the court found testimony that the occupant of a fire-bombed house had caused the police to raid defendant’s house to be relevant to show defendant’s motive for the fire-bombing. See also State v. Hermann, 283 S.W.2d 617, 621 (Mo.1955).

In State v. Bolden, 494 S.W.2d 61 (Mo.1972), the court ruled that evidence that defendant, one month prior to the shooting for which he was convicted, had broken his wife’s jaw and threatened to harm her if she reported the assault, tended to show motive and intent and was properly admitted.

Here defendant, when taken into custody, told the officers that he was out to get his wife. Thus, his assault upon his wife and her niece gave credibility to the officer’s testimony. The fact that defendant was subdued and thwarted in his assault upon his wife would indicate the likelihood that his attempt, approximately four hours later, to burn down the building in which his wife was located was intentional and was motivated by his earlier unsuccessful efforts “to get” his wife. We rule this point against defendant.

The state concedes that it was error for the trial court to permit a police officer to testify that another witness, Willie Thompson, had identified a photograph of defendant; but urges us to consider such error harmless and therefore, not prejudicial. Defendant, to support his contention in this regard, refers us to State v. Degraffenreid, 477 S.W.2d 57 (Mo. Banc 1972). It is true that Degraffenreid held that testimony by a police officer that the state’s sole eyewitness to the crime had identified the defendant by means of a photograph and again in a lineup was inadmissible hearsay. On the other hand, the Degraffenreid court noted that an error of this sort did not in itself warrant a reversal absent a showing of prejudice to the defendant. In Degraf-fenreid the challenged testimony was intended to buttress the direct testimony of the state’s only eyewitness. Here the challenged testimony was intended to buttress the circumstantial testimony of one among many witnesses. First, Mrs. Holliman testified that she saw defendant coming out from under the side of the apartment building, and then immediately she discovered smoke coming through her floor. Officer Driscoll, a member of the Fire and Arson Squad, testified that the fire had started in the basement of the apartment building and that it had been purposely set. In addition to Willie Thompson’s testimony as to the identity of defendant, Thompson also identified the five gallon gasoline can, found at the scene, as the container in which he had put the gasoline. His identification of the can was based upon the pullout spout on the top of the container. Consequently, under the circumstances shown herein — testimony that defendant was seen coming from under the apartment, and immediately thereafter smoke was seen coming through the floor; positive testimony that fire began in the basement, and that the five gallon can, debris and rags found there smelled of gasoline; and finally the testimony that the can found in the basement was the same container in which defendant had purchased the gasoline — we hold the error in the admission of the officer’s testimony to be harmless.

Inasmuch as defendant’s third claim that the proper foundation had not been laid for the jury’s view of a black and white photograph of the deceased is unlikely to recur, the claimed error will not be discussed.

Defendant’s final claim of error, that the court wrongfully and prejudicially forced him to use one of his peremptory challenges to excuse a prospective juror who should have been excluded for cause, does not admit of an easy solution. The transcript reveals the following in-court proceedings which form the basis for the defendant’s claim. The following are excerpts taken from the voir dire examination:

“MR. FRIEDMAN: Is there any one of you who may have heard or read about the facts in this case before coming into the courtroom today?
“MR. LAWERENCE C. WALLACE: My son happened to be on duty at the time, plus I am a friend of the father of the deceased officer, as well as knowing him also.
“MR. FRIEDMAN: You know John Summers as well as his father?
“MR. WALLACE: Right.
“MR. FRIEDMAN: What is your son’s name?
“MR. WALLACE: Lawerence Wallace, Junior.
“MR. FRIEDMAN: What District was he assigned to?
“MR. WALLACE: Union and Page.
“MR. FRIEDMAN: The same District that Officer Summers was assigned to? “MR. WALLACE: Right.
“MR. FRIEDMAN: All right. The fact that you know — your son will not be called as a witness in this case, number one. However, the fact that you know Officer Summers and knew him and also the father of Officer Summers, would that affect your ability to be a fair and impartial juror?
“MR. WALLACE: I don’t see why it should.
“MR. FRIEDMAN: You could give the State of Missouri and the defendant a fair and impartial trial and base any verdict in this case on the testimony and the evidence developed in the courtroom here?
“MR. WALLACE: Right.
“MR. FRIEDMAN: That is what we are after. Thank you.
⅜ ⅜: ⅜ ⅜ ⅜ ⅜
“MR. BUCKLES: Mr. Wallace, you indicated that your son was on duty in the 7th District on the evening of the 5th when this occurred, correct?
“MR. WALLACE: Yes.
“MR. BUCKLES: Did you have some conversation with him about what happened? Did you talk to him about it or anything?
“MR. WALLACE: Oh, not at length. He did mention the fact that — at the time I didn’t make an association with the individual that was slain—
“MR. BUCKLES: You don’t remember until later—
“MR. WALLACE: Right.
“MR. BUCKLES: Do you recall if you might have talked to him the next day or some period of time later?
“MR. WALLACE: I don’t see him that often. * * *
(The following proceedings took place at the bench outside the hearing of the jury.)
“MR. BUCKLES: I would move that Juror number 566, on the second page, Mr. Lawerence C. Wallace, I ask that he be struck for cause, for the reason that he indicated that he knew Patrolman Summers personally and that he knew the father of Patrolman Summers, and his son is a police officer that is assigned to the District.
“THE COURT: Well, Mr. Buckles, I appreciate that this man has a background that he might well not be a good juror in this case, but I as the Court don’t feel that I can strike him for cause when he indicated in the questions asked by Mr. Friedman and yourself that he could be a fair and impartial juror. Now, I can’t look into his mind and say that he is saying that deliberately and I can only be governed by his answers and under the circumstances I am going to have to deny your Motion. [Emphasis added.]
* * * * * •}:
(The following was held outside the hearing of the Jury:)
“THE COURT: Throughout the voir dire examination several of the above average black people on this jury were aware of this crime because it involved a black policeman. They indicated that they would be fair and impartial, particularly Juror number 566, Lawerence C. Wallace, a black man. He has a son who is a policeman and knew the father of the victim in this case. He was questioned at length by both Mr. Friedman and by defense counsel and he indicated emphatically that he would listen to the evidence and give both sides a fair trial.”

Missouri statutes provide a few specific narrow grounds requiring exclusion. §§ 546.100-546.140, RSMo 1969, V.A.M.S. In addition, § 546.150, RSMo 1969, V.A. M.S., allows generally for the exclusion of a juror who has formed an opinion on the case to the prejudice of the parties. These statutorily enumerated disqualifications are not, however, exhaustive, State v. DeClue, 400 S.W.2d 50, 56 (Mo.1968), and “. . . if for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from bias or prejudice, he is not a competent juror .” Kendall v. Prudential Life Ins. Co. of America, 319 S.W.2d 1, 5 (Mo.App.1958), rev’d on other grounds 327 S.W.2d 174 (Mo. Banc 1959). In this area beyond the statutory exclusions, the trial judge is given a broad discretion to rule on the qualifications of jurors.

The challenged juror in the present case is not excluded under any of the specific statutory sections. The propriety of his inclusion as a juror must, therefore, be evaluated under the general test enunciated in a long line of Missouri cases. Under these cases, the decision of the trial judge is reversible only for an abuse of discretion and “all doubts should be resolved in favor of the finding of the trial court. . . . ” State v. Wilson, 436 S.W.2d 633, 637 (Mo.1969). This approach may often result in a less than rigorous appellate analysis. The standard of review to be applied by an appellate court in most situations has been further described as:

“ ‘. . . on review by an appellate court, unless there is some fact which, we reasonably can say, in and of itself, necessarily showed prejudice, or unless there is an admission of prejudice, past or present, or unless there is something in the demeanor of the venireman which, despite his actual words, discloses the existence of prejudice in fact, we should not convict the trial court of an abuse of discretion in overruling a challenge for cause. . . . ’ ” (Leavitt v. St. Louis Public Service Co., 340 S.W.2d 131, 136 (Mo.App.1960) and Moss v. Mindlin’s Inc., 301 S.W.2d 761, 771-2 (Mo.1957))

The broad discretion granted to the trial judge must be predicated on a requirement that the trial judge carefully consider the responses of the individual jurors on voir dire in order to be able to make a factual determination as to the competency of an individual challenged juror. The decision of the judge should be based on facts stated by the juror not on conclusions of the juror himself as to his ability to act impartially, State v. Lovell, 506 S.W.2d 441, 444 (Mo. Banc 1974); State v. Land, 478 S.W.2d 290, 292 (Mo.1972) and Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 359 (Mo.1905). In its brief, the state suggests that this duty of the trial judge exists only where the prospective juror on voir dire admits a possibility of prejudice. No cases are cited in support of this proposition and our research reveals none. In addition, it seems to us that such a test would be directly contrary to the stated rule. The independent evaluation to be made by the trial judge and his unique opportunity to make such an evaluation because of his ability to observe the juror’s demeanor justify the broad grant of discretion, State v. Wraggs, 512 S.W.2d 257, 259 (Mo.App.1974), State v. Harris, 425 S.W.2d 148, 155 (Mo.1968), and a proportionally narrowed appellate review. Evidence of the lack of such an examination by the trial judge may well justify a more searching consideration by the appellate court of the appropriateness of excluding the individual juror. In the present case, the record does not reveal an independent factual determination by the trial judge. To the contrary, the transcript reveals that the judge recognized some possible problem with the impartiality of the challenged juror but felt unable to exclude the juror because of his claimed ability to be impartial. As previously noted, the case law reveals that the judge’s hands were not so tied.

In connection with this requirement of a factual finding by the trial judge, we initially note the approach of the Missouri Supreme Court in State v. Land, supra. In Land, the court reversed the trial court’s decision to include the juror. The reversal was based on the Land’s court’s observation that at one point in the record of the trial the judge recognized the possibility that the juror might subconsciously lean toward the state, State v. Land, supra at 291, 292. Despite the state’s argument that the statement by the trial judge was not the ultimate finding as to the competency of the juror, the Land court held that “. Deference to the action of the trial court is no longer in the picture after such a factual finding, and ... it was an abuse of discretion not to have sustained appellant’s challenge ... for cause. . . .” State v. Land, supra, at 293. The situation in the present case may parallel that in Land. As previously noted, the trial judge in our case did recognize some possible problems with the impartiality of the challenged juror.

Alternatively because of the failure of the trial judge to base his decision to include the juror on the required factual determination, we must subject the qualifications of the challenged juror in the present case to a searching consideration. The situation here was fraught with potential prejudice. The juror was a friend of the deceased’s father, knew the deceased policeman himself and was the father of a policeman who worked with the deceased. Affiliation or connection with law enforcement alone is not enough reason to sustain a challenge for cause. State v. Wraggs, supra, at 258; State v. Cashman, 485 S.W.2d 431, 434 (Mo.1972). It has also been suggested that acquaintance with interested parties may be insufficient in itself to require exclusion. In Grimm v. Gargis, 303 S.W.2d 43, 49-50 (Mo.1957), a civil case, a “. . . [j]uror . . . had known plaintiff for thirty years and had played ball with him as a child. . . .” The juror also inadvertently visited and talked with the plaintiff in the hospital the day following the accident. Grimm seems distinguishable, however, on several grounds. First, in Grimm, on voir dire the challenged juror, without any hesitation, disavowed the existence of any previously held opinion or prejudice. The juror’s answers in the present case are more equivocal. Secondly, in Grimm, the affirmance of the trial judge’s decision to refuse exclusion was based on the broad discretion of the trial judge. Grimm v. Gargis, supra, at 50. Our earlier discussion of the underlying rationale for such a grant of discretion as applied to the present case does not justify such a disposition here. Finally, and most importantly, there is a great difference in the nature of the Grimm case and the present case. Grimm was a personal injury case; here the defendant was on trial for the murder of a policeman. Not only was the challenged juror here a friend of the deceased’s family and the father of a man subjected daily to the same danger of death, but also his son was an officer assigned to the same police district. Our conclusion that exclusion of the challenged jur- or was required here is not based simply on his status. That status, however, should spur a more cautious appraisal of the jur- or’s qualifications. A juror with the acknowledged close personal ties to persons involved in the litigation hardly seems desirable as a member of the impartial body of jurors. We emphasize that “ ‘. [e]ach case must be judged on the particular facts in that case’. . . .” State v. Land, supra, at 292; State v. DeClue, supra, at 57; State v. Harris, supra, at 155; and State v. Spidle, 413 S.W.2d 509, 513 (Mo.1967).

The case of State v. Jackson, 43 N.J. 148, 203 A.2d 1, 11 A.L.R.3d 841 (1964), cert. denied 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965), although not exactly analogous to our case, illustrates several important rationales which underlie our discussion. In Jackson, defendants were convicted of murder in the first degree. During the voir dire examination the court rejected defendant’s challenge for cause of a prospective juror who stated on examination that members of the police department were his neighbors and friends, and that one detective, whom he knew, was an important state’s witness. In reversing the conviction, the court stated that the prospective juror’s statement that his friendship with the detective would have no bearing on the issue of the latter’s credibility, even though sincerely made, was contrary to human nature.

More important here than what Jackson held were certain comments contained therein: (1) that the sound administration of justice dictates that the means as well as the end be just; and where serious trial error has undermined the proceedings, there must be a reversal without regard to our view of guilt; (2) that jurors must be carefully selected with an eye toward their ability to determine controverted issues fairly and impartially, and the trial court must see that the jury is as nearly impartial as the lot of humanity will admit; (3) that the fundamental right of trial by a fair and impartial jury is jealously guarded by the courts. The jury is an integral part of the court for the administration of justice and . the parties to the action are entitled to have each of the jurors who hears the case impartial, unprejudiced, and free from improper influences; and (4) as pointed out by Judge Murrah, in the course of his opinion for reversal, in United States v. Chapman, 158 F.2d 417, 421 (10 Cir., 1946), where the government’s challenge for cause had been overruled, impartiality is not a technical concept and a party’s right to a fair and impartial trial is to be resolved in accordance with high standards of human conduct. Judge Murrah further noted (1) that when a juror testifies that he believes he can, and the court finds as a matter of fact that he will, if selected, render an impartial verdict on the evidence, he is an impartial juror as required by law; (2) that a juror’s answer to questions touching his state of mind is primary evidence of his competency, but the ultimate question is a judicial one for the court to decide, and in case of doubt, justice demands that the challenge be allowed; (3) that only by a punctilious regard for a suspicion of prejudice can we hope to maintain the high tradition of our jury system; and (4) that we must make sure that lamentations of the unsuccessful litigant are without foundation, either in fact or circumstance. (Emphasis added.)

In the desire to “. make our system of selecting jurors respected and free from prejudice or the suspicion thereof. . . .” [Kendall v. Prudential Life Ins. Co. of America, supra, at 8; see also Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465 (1909)], the challenged juror in the present case should have been excluded for cause. Because of the decision of the trial court here, the defendant was required to utilize a peremptory challenge to exclude the juror. The defendant is entitled to a full panel of qualified jurors before utilizing his peremptory challenges. State v. Lovell, supra, at 443; State v. Land, supra, at 292; and State v. Foley, 144 Mo. 600, 46 S.W. 733, 735 (1898). Denial of the defendant’s legitimate request for exclusion of the challenged juror was reversible error, State v. Lovell, supra, at 444; State v. Spidle, supra; and State v. DeClue, supra, and we so hold.

In summary, inasmuch as this cause was tried before one of the most able and experienced trial judges, we are extremely reluctant to reverse and remand this cause for a new trial in view of the evidence, but we are convinced that under the cumulative circumstances relating to the juror, Mr. Wallace, the defendant is entitled to a new trial.

Under our Anglo-American system, every person is entitled to certain basic guarantees of a fair trial. Every person is entitled to fundamental fairness and fair play. Basic rights include not only the right to counsel and public trial, the right to be free from the use of unlawfully seized evidence, the right to be free from the use of an unlawfully obtained confession, but also include the right to a fair and impartial jury. Our system is based upon the concept of a trial by an impartial jury. Impartiality is implicit in the right to trial by jury. We are committed to the doctrine that certain practices must not “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952).

While this case is neither a judgment case as set out in Lovell and Land; nor a statutory proscription case which disqualifies a particular juror, it is a case involving relationships and other factors which can be equally invidious and prejudicial. The issue in the instant case is not whether the jury that decided the case against defendant was prejudiced and thereby defendant was denied a fair trial, but rather, whether or not defendant was entitled to a fair, impartial jury panel from which to select the final petit jury to determine his case. Guarantee of such a fair and impartial jury panel has always been the law and policy of the State of Missouri.

We cannot subscribe to the view that Mr. Wallace could be a fair and impartial juror even though he indicated that he could try the case fairly and justly: He knew the victim — a policeman; he was better acquainted with the victim’s father; his son was not only a policeman but a policeman in the same district as the victim; he discussed the case with his son. Even though he stated consciously that he could give a fair trial to the state and to the defendant, his preconceptions and his underlying attitudes must have been such, as a normal, living father, that it would be extremely difficult for him not to be influenced.

The average man in the community would, we believe, hold that under such circumstances the defendant was not tried by an impartial jury of twelve persons.

Not only should a jury which hears a criminal case and which has great power be impartial in fact, but also if we are to hold true to our ideals and retain the confidence of the community, the jury should also give every outward appearance of impartiality. We do not believe that this was accomplished in this case.

On retrial of this cause, in the event defendant is found to be guilty of both charges, the court will be guided by the case of State v. Baker, 524 S.W.2d 122 (Mo. Banc 1975), in its pronouncement of sentences.

Judgment reversed and remanded for a new trial.

SIMEONE, P. J., concurs in separate concurring opinion.

GUNN, J., concurs in result and concurs in separate concurring opinion by SIMEONE, J.

SIMEONE, Presiding Judge

(concurring).

I concur with Judge McMillian that this cause should be reversed and remanded for a new trial because the trial court failed to sustain the defendant’s challenge to venireman Lawerence C. Wallace. I do so for two reasons.

First, the State of Missouri has always been committed to the doctrine that a defendant in a criminal case is entitled to a full panel of qualified jurors before he is required to make a peremptory challenge. State v. Foley, 144 Mo. 600, 46 S.W. 733, 735 (1898); State v. Lovell, 506 S.W.2d 441, 443 (Mo. Banc 1974). While some have suggested that if a particular venireman does not actually serve on the jury which hears the cause, justice has been served, State v. Land, 478 S.W.2d 290, 292 (Mo.1972), our Supreme Court has adhered to the traditional principle and has stated that “we need not change our course at this time.” State v. Land, supra, 478 S.W.2d at 292. I believe that this principle should be reexamined, but until it is, we are bound by the principle adhered to throughout our history. Hence, it is clear to me that the defendant was entitled to a full panel of qualified jurors before he is required to utilize a peremptory challenge.

Second, under our system of jurisprudence there is no feature of a trial more necessary to the pure and just administration of the law than that every litigant should be accorded a fair trial before a jury of his countrymen who enter upon the trial totally disinterested and wholly unprejudiced. Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 359 (1905). And if for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from any bias, he is not a competent juror. We cannot and should not lightly disturb the finding of the trial court. Necessarily broad discretion must be vested in the trial court. “With a cross-section of society appearing as veniremen, an area is involved that not only cannot but should not be standardized. Recognition of this fact requires that there continue to be a broad discretion in the trial court . . . .” State v. Land, supra, 478 S.W .2d at 292. The test on appeal is that the ruling of the trial court will not be disturbed unless it is manifestly against the record of the voir dire examination. State v. Lovell, supra, 506 S.W.2d at 444.

In my opinion, no one of the factors regarding the qualifications of the venireman, Mr. Wallace, would be sufficient to sustain a challenge for cause. That is, I believe that, although Mr. Wallace knew the deceased, was acquainted with his father and had a son who was a policeman assigned to the same district as the deceased, each of these factors standing alone would not be sufficient to sustain a challenge for cause. When these factors are accumulated and added to the fact that the venireman discussed the matter with his son, then in my opinion, they are sufficient to require that the challenge for cause should have been sustained, despite Mr. Wallace’s assurance that he could render a fair and impartial verdict. The decision of the trial court must rest on facts stated by the venireman and does not depend upon the conclusion of the juror as to whether he could divest himself of any actual or subconscious bias. State v. Lovell, supra, 506 S.W.2d at 444; State v. Jones, 384 S.W.2d 554, 558 (Mo. 1964).

As stated above, under our system of jurisprudence a cause is to be tried by persons who are free from partiality or bias for or against the litigants. The whole spirit of Anglo-American jurisprudence is stated by Lord Mansfield: “ ‘[A juror] should be superior even to a suspicion of partiality.’ ” Billmeyer v. St. Louis Transit Co., 108 Mo. App. 6, 82 S.W. 536, 537 (1904).

In view of the cumulative facts on this record, I agree with Judge McMillian that the cause should be reversed and remanded for a new trial.

      . See cases collected at Mo.Digest, Criminal Law &wkey;l 152(2).


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Gary Paul SHEPHERD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9895.
    Missouri Court of Appeals, Springfield District.
    Nov. 6, 1975.

      Kerry D. Douglas, Bolivar, for movant-appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Convicted of first degree robbery and in accordance with the jury’s verdict, movant was sentenced on June 16, 1971, to 15 years. Under § 546.615 RSMo 1969 (before amendment, Laws 1971, S.B. 294, effective September 28, 1971), the trial court denied credit for time movant spent in jail prior to conviction. The conviction was affirmed upon appeal. State v. Shepherd, 494 S.W.2d 53 (Mo.1973). After evidentiary hearing and denial of his Rule 27.26 motion to vacate and set aside the conviction, mov-ant has now appealed to this court.

To sustain the robbery charge, the state’s evidence showed that movant and his sister-in-law, Hazel Shepherd, went to the home of crippled 77-year-old Hillard Dickinson to “get some guns.” Upon arriving at the home, movant kicked in a door to gain entry, obtained guns, fired shots with a rifle and shotgun inside the house, hit Dickinson with a gun, damaged some furniture, demanded and obtained money, left with the money and three guns, and fired additional shots from outside the house to prevent being followed by the victim. Mrs. Shepherd pleaded guilty to making a felonious assault upon Mr. Dickinson and appeared as a state’s witness on the robbery charge. Court-appointed counsel was provided movant at the preliminary hearing; different court-appointed counsel was furnished for the trial in the circuit court and in the direct appeal from the robbery conviction; and still other appointed counsel has served movant on his Rule 27.26 motion, its hearing and appeal. Movant has been permitted to proceed as a poor person in all proceedings and has been provided with transcripts on all appeals.

Movant’s first point on appeal is that he was denied a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and was denied the right to confront his accuser as guaranteed by the Sixth Amendment to the United States Constitution because neither the state nor his court-appointed counsel called Hillard Dickinson as a witness at the preliminary hearing and because his court-appointed counsel failed to adequately prepare for the preliminary hearing by subpoenaing, interviewing or deposing Mr. Dickinson.

In Missouri the state is not required to call to the stand all persons who allegedly witnessed the crime charged [State v. Jones, 456 S.W.2d 7, 8[2] (Mo.1970); State v. Kinne, 372 S.W.2d 62, 66[5] (Mo.1963)], and since Mr. Dickinson did not testify, movant’s rights of confrontation and cross-examination never arose. State v. Ivey, 442 S.W.2d 506, 508[4] (Mo.1969); State v. Triplett, 520 S.W.2d 166, 171[15] (Mo.App.1975).

Following the alleged robbery on January 24, 1971, Mr. Dickinson was described as being “in shock ... he was practically helpless.” He was hospitalized February 17, 1971, and died before the circuit court trial was held on May 25,1971. The lawyer who represented movant at the March 16, 1971, preliminary hearing was appointed on March 5, 1971. Before and after the preliminary hearing, Mr. Dickinson’s son recalled his father “wasn’t able for nothing,” his mental condition “was bad ... he didn’t know us a lot of the time [and] as time went, his mind kept getting weaker and weaker.” Mr. Dickinson was not physically able to attend the preliminary hearing. When his son attempted to discuss the robbery, the victim wasn’t able to answer questions concerning the incident “all [the] time,” his memory “wasn’t too good” although there “probably could have been a few days” when he could have talked to someone.

Of course, movant had the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.-26(f). He did not establish that Mr. Dickinson was physically and mentally able to attend a preliminary hearing at any time. Neither did he show that the victim could have been effectively deposed. Likewise, movant’s evidence did not reveal how Mr. Dickinson’s testimony would have assisted him at trial or at the preliminary hearing, or how interrogation of the victim by appointed counsel would have been of benefit. Whether a defendant’s lawyer should subpoena a certain witness to testify at a preliminary hearing, especially if that witness could reasonably be expected to be hostile to the accused because he was the victim of the crime charged, is a matter of trial tactics or strategy which is not a proper subject of inquiry for courts reviewing a Rule 27.26 motion and affords no basis for relief. Johnson v. State, 516 S.W.2d 500, 501[4] (Mo.App.1975).

Points relied on numbered III and V may be considered together. One complains of the alleged improper argument made by the prosecuting attorney at the robbery trial; the other complains that movant was denied effective assistance of counsel because his court-appointed attorney failed to object to the prosecutor’s argument and thus preserve a record regarding same for review on appeal by an appellate court. The answer to the first complaint is that alleged improper arguments are not matters which afford a basis for relief on a Rule 27.26 motion. Booth v. State, 491 S.W.2d 286, 288 (Mo.1973). To answer the second complaint, it suffices to note that albeit appointed counsel did not object to the argument, the Supreme Court did in fact consider the matter on direct appeal thusly: “We have examined the arguments complained of in the light of the evidence received and conclude that there is no reason to apply Rule 27.20(c), V.A.M.R., the plain error rule. . Rule 27.20(c) is available when the court deems that manifest injustice or miscarriage of justice has resulted from the incident of which defendant complains. We find no basis for concluding that manifest injustice or miscarriage of justice resulted from the closing argument of the prosecuting attorney.” State v. Shepherd, supra, 494 S.W.2d at 54. Movant is not entitled to use a Rule 27.26 motion to obtain a second review of a previously decided issue even though he may have a different theory for seeking a favorable decision. Weaver v. State, 520 S.W.2d 640, 643[2] (Mo.App.1975).

Point IV of movant’s appeal brief alleges he was deprived of effective assistance of counsel at the robbery trial because his appointed counsel failed to lay the proper foundation to afford admission of a note purportedly written by Mrs. Shepherd to movant which, according to him, would have discredited Mrs. Shepherd as a witness for the state. The transcript of the robbery trial is before us, having been offered and received in the evidentiary hearing on the Rule 27.26 motion. At the trial on the criminal charge, movant’s then attorney had marked as Defendant’s Exhibit No. 2 what movant claims was the same as Exhibit C introduced and received as evidence at the hearing on his motion. The transcript of the criminal charge prepared by the reporter who marked Exhibit No. 2, describes it as “an unsigned, hand-printed note, with rough, torn edges at the top and bottom of same.” (Emphasis supplied). However, we note from physical and visual examination of Exhibit C, that it is in three pieces (the top and bottom apparently hand-printed on notebook paper with the middle third, which contains the words deemed vital to movant, supplied by Xerox reproduction), that the top and bottom do not have “rough, torn edges,” that the note is signed “Hay” (presumably short for Hazel, the given name of Mrs. Shepherd), and that neither the front nor back of Exhibit C has been marked as “Defendant’s Exhibit No. 2.”

The matter regarding Exhibit No. 2 or Exhibit C arose in this fashion. Movant’s counsel at the robbery trial established through cross-examination of Mrs. Shepherd that the confession she had made was true. The confession was never put into evidence. At this point, movant’s counsel had a note, as above described, marked as an exhibit and handed it to the prosecuting attorney who objected. Movant’s attorney contended the note “would tend to impeach the witness’ last statement . . . that everything contained in her confession was true [because] she has written a note to the defendant,” which note, in part, says “. tell your lawyer the statement I give [sic] them over half is a line of Bullshit . . . .” At this point the trial court observed that a proper foundation had not been laid to permit the note to be received into evidence. Thereafter counsel tried to elicit from Mrs. Shepherd an admission that she had written a note to movant “contradicting the things she had made in her statement.” To repeated questioning along this line, Mrs. Shepherd’s unsatisfactory answers were: “I don’t know. I don’t know what I wrote . How could [the statement] be untrue ... I don’t know for sure.” Apparently feeling he was making no progress with Mrs. Shepherd, counsel abandoned his questioning on the subject and did not attempt to again get the note into evidence.

At the hearing on the Rule 27.26 motion, movant did not demonstrate how a proper foundation could have been laid to insure the note’s reception in evidence in view of the answers given by Mrs. Shepherd, supra. Since movant did not testify at the robbery trial and has not complained of his role as a non-witness, the proper foundation for identifying the author of the note could not have come from movant. Counsel for mov-ant at the criminal trial testified at the motion hearing that the jury had seen him holding the note and that he felt this, coupled with the questions he asked of Mrs. Shepherd and the evasive answers she gave, were as effective in impeachment as if the note had been accepted by the court as an exhibit. We feel that under the circumstances, whether counsel should or should not have made further efforts to get the note into evidence was a matter of trial strategy, and if there was error in the lawyer’s abandonment, it did not go beyond an error of judgment nor result in a substantial deprivation of movant’s right to a fair trial. Myrick v. State, 507 S.W.2d 42, 44[2] (Mo.App.1974).

Grounds 3 and 6 of movant’s Rule 27.26 motion charged ineffective assistance of counsel for failure to make use of Mrs. Shepherd’s notes, and ineffective assistance of his trial counsel for failing to object to the closing argument of the prosecuting attorney. We have already discussed these matters, but in Point II of his brief movant says the trial court erred in not making “adequate findings of fact and conclusions of law on movant’s grounds number 3 and 6.” This point has no merit. Without prolonging this opinion with an exact quote of the findings and conclusions of the trial court, it is enough to say that the court found movant had a fair trial, effective assistance of counsel, and that grounds 3 and 6 were hindsight attacks on trial strategy. As previously noted, trial strategy cannot be questioned in a collateral attack under Rule 27.26. State v. Worley, 371 S.W.2d 221, 224 (Mo.1963).

In his penultimate point relied on (No. VI), movant says the cumulative effect of the matters particularly set forth in Points I, III, IV and V should entitle him to relief. We have already considered these points and have found no error. Any number of non-errors cannot add up to an error. We reject movant’s Point VI. Dennison v. United States, 385 F.2d 905, 907[7] (5th Cir.1967); Hammond v. United States, 356 F.2d 931, 933[6] (9th Cir.1966); State v. Lay, 427 S.W.2d 394, 403-404[13] (Mo.1968).

Movant’s last point (VII in the brief and grounds 4 and 5 in the motion) has merit. He correctly asserts the trial court erred in failing to vacate and correct sentence by allowing him credit for jail time served before sentence. There is no dispute but that movant’s incarceration in jail before sentencing resulted from his in-digency and inability to make bond. It is likewise certain that in following the verdict and sentencing movant to 15 years’ imprisonment, the trial court did not give movant credit for his jail time.

In the past Missouri courts have held that cases finalized prior to September 28, 1971 (the effective date of § 546.615, Laws 1971, S.B. 294) would not be affected by the amended statute making such credit mandatory. King v. State, 510 S.W.2d 747 (Mo.App.1974). However, after King’s Rule 27.-26 motion was denied by the Missouri Court of Appeals in the case last cited, King instituted federal habeas corpus action. In King v. Wyrick, 516 F.2d 321, 325 (8th Cir.1975), the court held that since King was denied jail time on his sentence, he was deprived of equal protection of the law and that the State of Missouri “must” grant him credit for the time he spent in jail.

Movant is entitled to credit for jail time awaiting trial in this case against his 15-year sentence. We do not know accurately how many days should be credited to mov-ant. However, the officer required by law to and who did deliver movant to the department of corrections is hereby directed to furnish the correct information on the number of days movant served in jail to the Department of Corrections and the Department of Corrections is then directed to allow the jail time credit against the sentence.

As modified with credit for pre-conviction jail time, the judgment is affirmed.

All concur.


author: HOGAN, Judge.

text:
    G. L. MORRIS, Jr., and Betty Morris, Plaintiffs-Respondents, v. Ralph W. HOLLAND, Jr., a/k/a Ralph Holland, et al., Defendants-Appellants.
    No. 9700.
    Missouri Court of Appeals, Springfield District.
    Nov. 12, 1975.

      James R. Hall, Doniphan, for defendants-appellants.
    Robert C. Hyde, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for plaintiffs-respondents.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Plaintiffs, judgment creditors of defendant Ralph Holland, Jr. (Ralph), brought this action to set aside a conveyance of real property by Ralph and his wife to defendant Ralph Holland, Sr. (Mr. Holland), as being in fraud of creditors. The trial court found the conveyance fraudulent within the meaning of § 428.020, and ordered it set aside. Defendants appeal.

On January 26, 1971, plaintiffs obtained an Arkansas judgment against Ralph in the amount of $6,848.47. It was stipulated that the Arkansas judgment had been properly registered in Missouri. The record indicates that the Missouri judgment was entered on November 15,1971. On November 4, 1970, Ralph and his wife conveyed a 526-acre parcel of land located in Ripley County, Missouri, to Mr. Holland by general warranty deed. The consideration recited is “One Dollar and other valuable consideration”. The deed was acknowledged in Arkansas and recorded in Missouri.

The land was valued at $50 to $85 per acre, and was subject to mortgages totaling $9,760 and tax liens amounting to $1,797.85. Mr. Holland testified that the consideration for the deed consisted of the cancellation of a preexisting debt in the amount of $81,000 or $8,100 — he could not recall which — representing the total of a series of loans he made to Ralph in “ ’68 and ’70, ’69 or ’70.” In each instance, Mr. Holland testified, he withdrew cash from his bank account to accommodate Ralph’s needs. Mr. Holland could not recall the name or location of the bank. The loans were, again according to Mr. Holland, evidenced by notes, actually simple slips of paper, indicating the amounts withdrawn and loaned to Ralph. Mr. Holland and Ralph both signed the slips of paper, but the loans bore no interest and Mr. Holland received no security. The slips of paper evidencing Ralph’s debt to Mr. Holland were not in Mr. Holland’s possession; they were, he said, at Forrest City, Arkansas.

Ralph testified that during the late summer of 1970, his outstanding obligations amounted to “[tjwenty or thirty [thousand dollars], I don’t know exactly.” He was then in the construction business and owed money to “various suppliers” including Hei-man Lumber Company, and Cairo Lumber Company. Ralph also owed federal taxes, various mechanical contractors and the Arkansas and Louisiana Gas Company. Ralph was asked what assets he had in August before execution of the deed in November, and he answered that he “didn’t have any. . . . Considering what I owed”. Ralph’s further testimony was that he had borrowed money from his father on two occasions. “One time it was to pick up a check that didn’t [clear] and the other time it was to make a payment to the Internal Revenue so that I could keep operating.” Ralph “[j]ust wrote out a little note” to evidence the debt. Ralph’s father had returned the notes after execution of the warranty deed, but they were in Ralph’s “file at home” in Arkansas and were not produced at the trial.

Ralph further stated upon trial that the 526-acre tract in Ripley County was owned by him solely, that the land conveyed represented substantially all his assets except an “equity” in a house in Forrest City, Arkansas, which he and his wife owned; that he was “sure” his father was aware of his financial situation, and that his purpose in conveying the land was, “Well, I was indebted to him among other people, and I was going to lose the farm anyway. The other creditors, the farm would have been defaulted and repossessed by the time they could have got anything out of it. And I figure[d] that he might salvage it and get some of his indebtedness off of me.” There was also evidence that in February 1971 Mr. Holland had attempted to obtain a loan from the First National Bank of Doniphan, Missouri, in order to purchase the land here involved from Ralph, but the application had been refused.

The trial court found as facts that the tract conveyed constituted substantially all Ralph’s property; that before and after the property was conveyed, Ralph was insolvent; that Mr. Holland knew of Ralph’s insolvency and accepted the deed with knowledge of Ralph’s intention to place his property beyond the reach of his creditors, and that the conveyance was therefore in fraud of creditors and void.

In their brief, the defendants argue that since the cause was tried to the court, it is this court’s duty to reach its own conclusions upon a review of both the law and the evidence without regard to the trial court’s findings and give such judgment as the trial court should have given. In this connection, defendants cite Rule 73.01, para. 1(b), and Harrison v. Harrison, 339 S.W.2d 509, 514[5] (Mo.App.1960).

We are well aware that Rule 73.-01, as amended March 29, 1974, requires us to review the case upon both the law and the evidence, and that the words “[t]he judgment shall not be set aside unless clearly erroneous” were eliminated when the rule was revised. Nevertheless, our understanding of present Rule 73.01 is that when the decision depends upon the credibility of the witnesses and the weight of the evidence, an appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been otherwise, In re Petersen’s Estate, 295 S.W.2d 144, 148[3] (Mo.1956); Pfotenhauer v. Ridgway, 307 Mo. 529, 536, 271 S.W. 50, 52[8] (1925); Venie v. South Central Enterprises, Inc., 401 S.W.2d 495, 498[2] (Mo.App.1966), even though the deference due those findings is precisely that and not a matter of statutory or constitutional inhibition. Cross v. Gimlin, 256 S.W.2d 812, 813[2, 3] (Mo.1953); Venie v. South Central Enterprises, Inc., supra, 401 S.W.2d at 498[1]. The degree of deference due the factual findings of a trial court is not readily susceptible of precise articulation. See United States v. Aluminum Co. of America, 148 F.2d 416, 433[19 — 21] (2d Cir. 1945); 9 C. Wright and A. Miller, Federal Practice and Procedure § 2585 (1971). Some older precedents require deference unless the finding is “clearly erroneous or against the weight of the evidence”, Long v. Von Erdmannsdorff, 111 S.W.2d 37, 40 (Mo.1937), others speak of deference to the trial court’s findings of fact “unless satisfied that they are against the weight of the evidence”, Manahan v. Manahan, 52 S.W.2d 825, 827[2] (Mo.1932), still others speak of deference to factual conclusions “unless the evidence is palpably insufficient to sustain [them].” Held v. Reis, 193 S.W.2d 17, 20[1] (Mo.1946). Whatever may be the appropriate phrase, we reject out of hand the suggestion that we should cast the trial court’s findings aside. We do not believe Rule 73.01 was amended in order to convert the appellate courts into judicial second-guessers. See Lundgren v. Freeman, 307 F.2d 104, 114[18] (9th Cir. 1962).

In our opinion this is peculiarly a controversy for resolution upon the weight of the evidence and the credibility of the witnesses. The defendants contend, and the tenor of their evidence was that Ralph Holland simply transferred the property to his father in order to prefer his father as a creditor and save the property from foreclosure. The trial court might have accepted this evidence as true, and could have found the transfer perfectly lawful. Certainly Mr. Holland could have assumed the outstanding mortgages, as defendants claim, either by express or “implied” covenant in the deed, Hafford v. Smith, 369 S.W.2d 290, 295[7] and authorities cited at 296, n. 8 (Mo.App.1963), and Ralph could have lawfully preferred his father to other creditors. Owens v. Owens, 347 Mo. 80, 91, 146 S.W.2d 569, 576[2] (1940). The trial court was not, however, bound to accept the defendant’s evidence. The deed does not expressly recite that Mr. Holland assumed outstanding indebtedness on the property; it merely recites that the land is conveyed “[s]ubject to all indebtedness on said property”. The covenant of assumption could be proved by parol, but clear and convincing evidence of that assumption was required, and proof of payment of some of the indebtedness against the property by Mr. Holland does not require the conclusion that he assumed the debt. McFarland v. Melson, 323 Mo. 977, 985-986, 987-988, 20 S.W.2d 63, 66-67[4][5, 6], 67-68[10] (1929). Moreover, defendants’ evidence that Ralph was indebted to Mr. Holland at all is especially tenuous and unconvincing. Mr. Holland testified that he lent his son money, but could not recall whether the total sum was $8,100 or $81,000. The loans were made in cash, but Mr. Holland could not recall where he obtained the money. The transactions were evidenced by simple slips of paper. Defendant Ralph Holland had these slips in his possession — in Arkansas — but failed to produce them at either of the two hearings had in this cause. This failure to produce the slips evidencing loans authorized a strong presumption that they would not be favorable to defendants had they been produced, Donet v. Prudential Ins. Co. of America, 23 S.W.2d 1104, 1106[4] (Mo.App.1930); Whitmore v. American Ry. Express Co., 219 Mo. App. 294, 304, 269 S.W. 654, 657[3] (1925), and perhaps, in these circumstances, authorized the conclusion that the slips of paper were not evidence of debt at all. 2 J. Wigmore, Evidence § 291, p. 186 (3d ed. 1940). Considering the evidence as a whole, the trial court could quite reasonably have concluded that Mr. Holland simply made Ralph a gift of the cash without any real expectation of repayment, and even if it accepted defendants’ evidence concerning the loans, the irregular course of dealing between Ralph and his father would be a circumstance casting suspicion on the good faith of the conveyance. See Johnston City State Bank v. Sowell, 277 Ill.App. 10, 16-17[4] (1934).

Apart from these considerations, we find plaintiffs’ evidence sufficient to show the conveyance fraudulent and void within the meaning of § 428.020. The “badges” or indicia of fraud which warrant an inference of improper motive have been stated many times and include 1) a conveyance to a spouse or near relative; 2) inadequacy of consideration; 3) the transfer of all or nearly all of the debtor’s property; 4) insolvency; 5) retention of possession by the debtor, and 6) failure to produce available or rebutting evidence when the circumstances surrounding the transfer are suspicious. Allison v. Mildred, 307 S.W.2d 447, 454[7] (Mo.1957); Harrison v. Harrison, supra, 339 S.W.2d at 516[7]; Matz v. Miami Club Restaurant, 108 S.W.2d 975, 979[1, 2][3] (Mo.App.1937). From our statement of the facts and what we have already said, it is apparent that the record manifests several such badges or indicia of fraud. The conveyance was made from son to father; the supposed consideration was forgiveness of or security for a debt which was at best merely a moral obligation to repay, and supposed assumption of a mortgage debt upon which the grantor continued to make payment after the transfer; defendant Ralph Holland testified that the land conveyed represented all the property he owned except a “couple of thousand” equity in a home at Forrest City, Arkansas, and as we have noted, defendants failed to produce available evidence tending to prove that the grantee was a bona fide creditor of the grantor. A strong inference of fraud arises from the concurrence of these circumstances. Harrison v. Harrison, supra, 339 S.W.2d at 516[7].

There remains only the question whether the record indicates such knowledge on the grantee’s part as to charge him with notice of the debtor’s purpose to hinder, delay or defraud his creditors. Direct and positive knowledge need not be demonstrated; it is sufficient if the facts and circumstances brought to the grantee’s attention are such as to put an ordinarily prudent person on inquiry and reasonably lead to knowledge of the grantor’s fraudulent purpose. The grantee’s notice and knowledge of such fraudulent purpose may be inferred from circumstances. Allison v. Mildred, supra, 307 S.W.2d at 454[5]. Here, the circumstances are such as to charge the grantee with such notice and knowledge. Mr. Holland had lent his son money on several occasions simply to keep his son’s business operating; he was aware that a mortgage on the property was about to be foreclosed, and had attempted to borrow money to discharge the mortgage debt, and defendant Ralph Holland’s testimony was that he was “sure” his father knew of his “financial situation” — i. e., difficulties— shortly before the transfer was made. Giving the chancellor’s findings any degree of deference, his conclusions were undoubtedly correct and wholly equitable, and the conveyance in question was properly found to be fraudulent and void.

Defendants’ further assertion of error is that the trial court should not have set the deed aside because if it was in fraud of creditors, it was in fraud of Ralph’s creditors only. In this connection, defendants cite Bostian v. Jones, 244 S.W.2d 1, 2-3[2-4] (Mo.1951), which indicates that a conveyance of land held by the entirety, not being subject to the claims of an individual spouse’s creditors, may not be held fraudulent and void as to such creditors, even though the conveyance may hinder or delay the individual spouse’s creditors. This claim of error must be rejected. Defendants rely on the fact that Ralph and his wife executed mortgages against the property as husband and wife, but as the plaintiffs note, their execution of the mortgage in such manner may have been to avoid the effect or supposed effect of § 474.150, para. 2, which provides that execution of any conveyance of real estate by a married person without the express assent of his spouse is deemed to be in fraud of the marital rights of his spouse. Moreover, the contention that the property conveyed was held by Ralph and his wife as tenants by the entirety flies in the face of Ralph’s testimony, which was that he was the sole owner of the land.

For the reasons indicated, the judgment is in all respects affirmed.

All concur.

      . All references to statutes and rules are to RSMo 1969, V.A.M.S. and V.A.M.R.

      . See also Note, Fraudulent Conveyances— ■Element of Intent in Missouri, 25 U.Kan.City L.Rev. 104, 105 (1957).


author: NORWIN D. HOUSER, Special Judge.

text:
    Lonnie Ray FRANKLIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36137.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 12, 1975.

      Lusser, Hughes & Lusser, Henry C. Hughes, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Timothy J. Verha-gen, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

On October 8, 1970, a jury found Lonnie Franklin guilty of murder in the first degree. His motion for new trial was overruled January 6, 1971. He did not appeal. On March 23,1971, he filed a posteonviction Rule 27.26 motion to vacate the judgment of conviction. The motion was heard, overruled, and on appeal the Supreme Court decided against appellant on two points, but because the trial court failed to make specific findings of fact on a third issue (denial of right to appeal) the cause was remanded for findings on that issue. Franklin v. State, 501 S.W.2d 166 (Mo.1973). On remand the trial court made the following findings:

“1. That movant received adequate information with respect to his appeal and was fully advised concerning the same.

“2. That movant met with his retained counsel on a number of occasions with reference to appeal and then was afforded the benefit of their counsel.

“3. That movant was apprehensive about the death penalty, and the possibility of imposition upon another trial, and such subject was duly considered when movant waived his right of appeal.

“4. That there was no evidence to demonstrate indigency or destitution on behalf of movant and nothing to indicate other counsel was not available.

“5. That there was no manifestation of indigency or a desire to appeal nor were there any suggestions of such propositions.

“6. That movant knowingly, voluntarily and intelligently waived his right of appeal and had a sufficient understanding of the situation.”

On this appeal from the final order of the circuit court on remand appellant makes these points:

“I

“Movant’s Motion to set aside judgment and sentence under Supreme Court Rule 27.26 should be granted because the transcript does not show that Mr. William Murphy or Mr. F. Neil Aschemeyer, or anyone else, advised the movant, Lonnie Ray Franklin, that he had a right to ask the Court to appoint counsel for the purpose of making an appeal to the Supreme Court of the State of Missouri and to ask the State to pay the cost of preparing the transcript. An indigent defendant is entitled to the appointment of counsel on an appeal.”

“II

“Movant’s Motion should be granted because movant, Lonnie Ray Franklin, did not waive his constitutional right to appeal since that action was not taken voluntarily, knowingly and intelligently.”

We refer to the recital of facts in Franklin v. State, supra, 501 S.W.2d l.c. 172, which need not be repeated. Additional facts are these: After verdict in the murder case appellant’s retained attorney, William Murphy, informed appellant that he was willing to continue as counsel on appeal without further fee, but this was not satisfactory to appellant and his father, who then consulted Mr. Aschemeyer. The latter entered his appearance as attorney of record for appellant, a fact known to the circuit judge. Appellant’s father testified that in his discussion with Mr. Aschemeyer about the possibility of a death sentence on retrial Mr. Aschemeyer told him that it was 500 to 1 that the State would ask for the death penalty. In his discussions with retained Attorney Aschemeyer appellant was advised that under the law if he were retried and again found guilty “the punishment for Murder in the First Degree is the gas chamber.” Nothing of record indicates that during the trial or between the date the verdict was returned and the final date for filing notice of appeal the circuit judge was informed that appellant was indigent (if he was) or that appellant desired to appeal. Appellant had testified at the murder trial that he was an upholsterer. Mr. Aschemeyer did not recall whether he told appellant or his relatives that appellant had a right to court-appointed counsel on appeal, but he did remember that neither appellant nor his relatives asked him about it. Appellant testified that Mr. Aschemeyer did not inform him that he could have a court-appointed attorney on appeal.

On January 11,1971, five days before the last day for filing a notice of appeal, and following discussions between appellant, appellant’s father and Mr. Aschemeyer relating to appeal and the possibility of the death sentence on retrial, the following writing, signed by appellant, was filed in the murder case: “I hereby direct my attorney, F. Neil Aschemeyer, not to appeal the above-captioned case in which I was sentenced to life imprisonment, and I further direct him to withdraw as my attorney in such case.” Also filed that date was a writing signed by Mr. Aschemeyer, directed to appellant, reciting the filing with the circuit judge of the direction not to appeal and to withdraw as counsel and the entry of an order permitting his withdrawal, and telling appellant that if he decided to appeal it was necessary to file a notice of appeal not later than January 16, 1971. Following Mr. Aschemeyer’s advice with respect to the possibility of the death sentence on retrial and appellant’s signing of the appeal waiver, and after Mr. Aschemeyer withdrew as counsel and returned $2000 to appellant’s father, neither the latter nor appellant made any further effort to employ a third lawyer for the purposes of appeal.

Our review is limited to a determination whether the findings, conclusions and judgment of the circuit court are clearly erroneous. Rule 27.26(j). The burden of proof is upon appellant. Crews v. State, 510 S.W.2d 425 (Mo.1974), and cases cited l.c. 430[2].

Taking for granted that he was indigent when sentenced and at the time the critical decisions with respect to appeal had to be made, appellant advances the contention that he had a constitutional right to advice from his employed counsel, Mr. Murphy or Mr. Aschemeyer, or from someone (unspecified, but apparently referring to the State, the judge, or the circuit attorney) — advice to the effect that he had a right to ask the court to appoint counsel for appeal and for the State to pay the cost of the transcript. Appellant maintains that he did not waive his right to appeal because, due to the failure to inform him as above indicated, his action directing his counsel not to appeal was not taken voluntarily, knowingly and intelligently.

These contentions are disallowed for several reasons. In the first place, as in Burnside v. State, 473 S.W.2d 697 (Mo.1971), there is no basis for the assumption by appellant that he was indigent at these critical stages of the litigation, or that the trial court knew of his indigency. The transcript of the murder trial does not show his indigency. He was represented by paid counsel, to the knowledge of the court, first by Mr. Murphy and next by Mr. Aschemeyer, and not by court-appointed counsel. From appellant’s testimony that he was an upholsterer the judge could reasonably have concluded that he was gainfully employed and self-supporting. According to the record appellant’s father was “worried to death” about his son and was willing to assist him financially. He paid Mr. Murphy’s fee. He advanced $3000 to Mr. As-chemeyer. He was a machinist with a good income so that, with appellant’s earnings if released on bond, the two could have paid a substantial monthly amount toward an attorney’s fee. After Mr. Aschemeyer’s withdrawal as counsel for appellant the father still had $2000 with which it might have been possible to employ counsel on appeal, or at least enough to make a down payment on a fee. Considering all of these facts the trial court’s Findings Nos. 4 and 5 are not clearly erroneous.

Without support for appellant’s basic premise of indigency we are not required to determine the question whether appellant as an indigent was unconstitutionally deprived of his right to advice with respect to his rights of appeal. Burnside v. State, supra, 473 S.W.2d l.c. 700[2]. Assuming, however, that appellant could have qualified as a poor person, we will address the question whether a defendant represented by counsel, following conviction, has a constitutional right to be informed of his right to appeal with the assistance of appointed counsel and his right to a free transcript. Was there a duty on the circuit judge to take affirmative steps to inquire of appellant with respect to his financial status and his desire to appeal, and offer to appoint counsel on appeal and make other orders customarily made for the benefit of indigents?

Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), holds that an indigent defendant has the right to counsel on appeal. United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969), holds that a state has a duty to warn every indigent person convicted of crime of his right to appeal and his right to prosecute his appeal without expense to him by counsel appointed by the state. The Sixth Circuit has followed .this rule. Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970).

The opposite view, however, has been taken in the Third and Fifth Circuits, that “when a defendant has retained counsel of his own choosing the State cannot be held to have violated the constitutional right of an indigent to counsel on appeal, unless the need for appellate counsel is brought home to the State, either by the defendant’s request for appellate counsel or because a responsible State official has actual knowledge that the defendant is indigent and desires to appeal his conviction.” (Our emphasis.) Pate v. Holman, 341 F.2d 764, 773 (5th Cir. 1965), mod. 343 F.2d 546 (5th Cir. 1965). See also Beto v. Martin, 396 F.2d 432, 434 (5th Cir. 1968); United States ex rel. O’Brien v. Maroney, 423 F.2d 865, 869[6] (3d Cir. 1970); Gregory v. United States, 446 F.2d 498 (5th Cir. 1971); Copeland v. Beto, 471 F.2d 710 (5th Cir. 1973); United States ex rel. Payton v. Rundle, 472 F.2d 36 (3d Cir. 1972); Turnbow v. Beto, 477 F.2d 1151 (5th Cir. 1973).

We follow the Third and Fifth Circuits holding that to be entitled to postcon-viction relief it is not enough for a petitioner to show that indigency occasioned his inability to employ counsel or to appeal; that he must show State action depriving him of his Fourteenth Amendment rights; that State action is shown when a responsible official in the State’s system of justice rejects a request for counsel or fails to take proper steps toward appointment of counsel for a convicted defendant when he has knowledge of the defendant’s indigency and desire for appellate counsel.

It would be obnoxious to find a deprivation of constitutional rights in this case, where there is no showing that appellant was indigent or that the trial judge knew or had been informed of appellant’s indigency, and where, after consultation with retained counsel, appellant filed with the court a written direction to his counsel not to appeal the case.

Nor did appellant have a constitutional right to be informed by his retained counsel of the right of an indigent to court-appointed counsel on appeal and a free transcript. “When there is a representation by privately retained, non-appointed counsel, the mandate of the sixth amendment is implemented not by action of the state, but by action of the individual defendant. The state is not involved in the process of selecting counsel, for the defendant himself achieves the precise objective set forth in the cases proclaiming that an indigent is entitled to have the state furnish that which he cannot afford: counsel to represent him. Accordingly, equal protection considerations are not apposite. After an appearance has been entered by private counsel, the state is normally absolved of any responsibility to concern itself in a supervisory fashion with the problems of representation. The very nature of the private attorney-client relationship, brought into existence by the deliberate choice of the defendant, justifies an assumption that the defendant will be the recipient of professional advice. So long as the defendant is, in fact, represented by private counsel at the critical appeal stage, the state generally has no duty- — indeed, no authority — to interfere with the attorney-client relationship.” United States ex rel. O’Brien v. Maroney, supra, 423 F.2d l.c. 869.

Franklin had the benefit of the advice of two competent retained attorneys with respect to his right to appeal and of the necessity and required time within which a notice of appeal had to be filed. “When an accused person retains counsel on the original trial, the State may rely on the presumption that the accused’s lawyer will protect his client’s rights on appeal.” Pate v. Holman, supra, 341 F.2d l.c. 775. That presumption has not been rebutted as a matter of law. After consulting with counsel appellant signed a written waiver of his right to appeal. Whether he signed the waiver because he could not satisfy Mr. Aschemeyer’s financial requirements and in ignorance of his right to appeal as a poor person, or because of Mr. Aschemeyer’s advice that after a successful appeal and on retrial there was a possibility of conviction and infliction of the death sentence, was a matter peculiarly for the determination of the trial court. Newland v. State, 454 S.W.2d 21, 23 (Mo.1970).

There was ample testimonial basis for the trial court’s Findings Nos. 1 and 2, and for Finding No. 3 that appellant’s apprehension about possible infliction of the death penalty on retrial was a consideration in appellant’s decision to waive his right of appeal.

This case is comparable to Newiand v. State, supra; sub nom., Newiand v. Haynes, 445 F.2d 267 (8th Cir. 1971). Following Newland’s conviction of robbery his counsel requested money for the appeal but neither Newiand nor his relatives could supply the necessary funds. His counsel then suggested that he sign a written waiver of his right to appeal, because there was pending an escape charge which would run concurrently with the robbery charge. Newiand signed a suggested written request that counsel not file a notice of appeal of the robbery conviction. In a 27.26 proceeding Newiand testified that he wanted to appeal but signed the waiver because he did not have the money necessary to take the appeal and did not know he could appeal as a poor person. The court of appeals concluded that the findings of the district court that Newland’s waiver of his right to appeal was voluntarily, knowingly and intelligently made were not clearly erroneous, in view of the written waiver signed by New-iand and his retained attorney’s testimony that Newiand advised him and advised the trial court that he did not wish to appeal.

Considering all of the testimony the findings and conclusions of the circuit court, including the finding that appellant knowingly, voluntarily and intelligently waived his right of appeal, are not clearly erroneous, but have substantial support of record.

Judgment affirmed.

SMITH, C. J., and STOCKARD, Special Judge, concur.


author: CALHOUN, J. BATTIMORE, J.

text:
    DICKENS v. STATE.
    No. 15251.
    Court of Criminal Appeals of Texas.
    June 15, 1932.
    Rehearing Denied Oct. 12, 1932.
    Bob Calvert, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, two years in the penitentiary.

The state’s evidence in brief showed that on the day of the killing, the appellant went to one T. L. Patterson and asked him if he could bale his hay for him and asked Patterson if he would get a gun that he had pawned at the hardware store and to keep it for him until he baled the hay. After they got the gun, the appellant wanted to secure said Patterson with a watch instead of the gun, which Patterson agreed to do, and took the watch and held it for the debt and turned the pistol over to the appellant. When Patterson turned the gun over to appellant, he said to appellant, “You are not going to get into trouble?’ and appellant replied, “No, sir, I just want to have protection around the house.” Later on the same day, the appellant’s wife was buying some goods in an A & P store in the city of Hillsboro, and the deceased entered the store and a few minutes thereafter the appellant also entered the store. Something was said between appellant and deceased, and the deceased ran to the back of the store, the appellant following him with a pistol in his hand. The witness Russell Fowler ran after the parties, who had gone back of a partition between the front and rear of the store, and, when he arrived in the rear part of the store, he saw the appellant standing there with a gun in his hand, and he told the appellant to give him the gun, and appellant said, “Just a minute,” and made a motion of handing the witness the gun, and the deceased opened the toilet,door, and appellant shot at him. Deceased then pulled, the door to, and the appellant went directly in front of the toilet door and tried to open it, but, not succeeding in doing so, he started shooting.through the door. Two bullet holes were found, in the do,or and at another place it looked like a bullet had hit the door and: glanced off. The body .of the deceased was found lying on the floor in front of .the toilet.A physician testified that there were five holes in the body of the deceased made by three bullets, and also that the deceased died as a result of said wounds. When the appellant was arrested, the automatic pistol with which he shot the deceased was empty. No weapon of any kind or description was found upon, the body of the deceased.

The appellant claimed that the deceased had been going 'with his wife and had threatened him, and he shot him because of the fact that when he ran off he thought he was going to get a weapon and return.

By bill of exception No. 1, appellant complains that, after the witness Charley’’ Ward had testified that the general reputa-, tion of the appellant as being a peaceable law-abiding citizen in the community where he lived was good, the district attorney upon' cross-examination asked said witness if he' was not one of appellant’s bondsmen, to which' question appellant’s counsel objected, and the objection was sustained by the court; The bill-further shows that, upon further examination-of said witness, the district attorney propounded the following question to him; “You recall that, don’t you, and that he afterwards made bond and the bond was forfeited?” Upon the objection of the appellant to said question, the objection was sustained by the court, and the jury was instructed not to consider the- question asked by the district attoníéy. It appears from said bill of exception that the court sustained appellant’s objection to the questions asked the witness, and that neither of said questions were answered, and the court also admonished the district attorney not to ask such questions again, and the matter was not pursued further: The court also instructed the jury to disregard said question. No reversible error is shown by said bill ’of exception.

“As tending to show flight, the state may show that the defendant forfeited his bail bond or recognizance.” Branch’s Ann. P. O. § 135; Hart v. State, 22 Tex. App. 567, 3 S. W. 741; Gent v. State, 57 Tex. Cr. R. 414, 123 S. W. 594; Arnold v. State, 74 Tex. Cr. R. 269, 168 S. W. 122, 124.

Bills of exception Nos. 2, 3, 4, 5, 6, and 7 complain of the action of the court in permitting the district attorney, on cross-examination of the witnesses, who had testified to appellant’s good reputation as being a peaceable and law-abiding citizen, as to whether or not they had not heard that the appellant had been drunk after he had been released on bond in this case and had been arrested on a charge of drunkenness. All of said bills of exception are qualified by the trial judge to the effect that the defendant had filed an application for a suspended sentence in the event of a conviction and had placed his general reputation in issue on the trial of said cause. Also testimony to the same effect was admitted without objection from defendant’s counsel. As shown on page 62 of the statement of facts, the witness Dow Frazier testified that he was one of the bondsmen on the bond of the appellant; that the appellant was again rearrested on a charge of being drunk, and he was told that they caught him over at the Holy Roller Church ■hugging a negro man. This testimony went before the jury without objection, and thus the very testimony against which objection was urged, as shown by these bills of exception, appears in other parts of the statement of facts from other witnesses without objection having been interposed by appellant. The erroneous admission of the testimony would not call for reversal, if the same fact is proven by other testimony not objected to. Pryor v. State, 88 Tex. Cr. R. 211, 225 S. W. 374; Burgess v. State, 88 Tex. Cr. R. 146, 225 S. W. 182; Enix v. State, 112 Tex. Cr. R. 376, 16 S.W.(2d) 818. It follows that, if the court erred in admitting the testimony, the error does not call for a reversal of this case.

Bills of exception 8, 9, and 10 complain of permitting the state on cross-examination of appellant while on the witness stand to ask the appellant if he had not been going with one Leola Richardson and if he had not asked said Leola Richardson to marry him if he got out of his trouble. Bill of exception No. 11 complains of the actio-n of the district attorney in asking the appellant on cross-examination if he had not kept company after he had separated from his wife with one Jeanette Pendleton. Bill of exception No. 12 complains of the same questions propounded to the witness in regard to a woman by the name of Tommy Smith. Bills 13, 14, 15, complain of permitting the state to prove in rebuttal by the witness Leola Richardson that the appellant' had been coming to see her and was coming to see her before he was divorced from his wife and had asked her to marry' him on several occasions. All of said bills had the following qualification by the trial judge: That the defendant was attempting to justify his action in killing the deceased on the ground that he was defending his wife.

The appellant testified in his own behalf that he and his wife had separated several times and had been separated for some time. He further testified that he had instituted an action for divorce against his wife and had gotten her to waive service of citation in said cause; that he knew that his wife had been associated with the defendant since she and he had been separated; that she had been gone for about four or five months; that he still loved her and did not like for her to go out and stay with the deceased; that, on Wednesday before the killing on Friday, he had gone and spoken to the deceased about his association with his wife, and the deceased told him, “By God, don’t you ever ask me anything about your wife and you had better never meet me when you see me with her, if you do there will be hell to pay”; that on the day of the homicide he got a pistol from Mr. Patterson, not because of the fact that he wanted to kill the deceased, but because he knew the general reputation of the deceased to be a dangerous and violent character, and he was scared of him unless he had some kind of protection; that, when he walked into the A & P store the day of the killing, the, deceased and appellant’s wife were standing in there talking, and he started to call the deceased, and deceased ran towards the rear of the store; that he ran after the deceased and slipped and fell; that he was trying to get the gun out of a paper sack he had it in when he fell; that Mr. Fowler came up and said, “Zeb, what do you mean, give me that gun,” and he told him, “Yes sir, in a minute” ; that he started to give the gun to him, but as he looked up the deceased had opened the closet door and seemed to him like he started out, and that scared him and he shot; that, after he had shot the first time, he walked down towards the closet door and deceased started out again and he fired another time; that after he had emptied his gun he started towards the courthouse to give himself up.

It will therefore be seen from appellant’s own testimony that, at the time of the killing of the deceased by appellant, the deceased by no act done or words spoken manifested any intention to execute any threat or threats that deceased had made regarding appellant, and the appellant was attempting to justify the killing of deceased alone, upon the ground that he was defending his wife from the attentions of the deceased, and, having made that an issue in the ease, the state had a right to show its falsity or break its force and effect in any legitimate way. “Whatever material facts are introduced that tend to affect the issue, the other side has the right to deny, contradict, or explain that testimony, showing its falsity, or breaking its force and effect in any legitimate way.’’ Branch’s Ann. P. C., § 97; Johnson v. State, 74 Tex. Ct. R. 179, 167 S. W. 733; Arnold v. State, 9 Tex. App. 435; Ward v. State, 71 Tex. Or. R. 310, 158 S. W. 1126. The opinion is expressed that the testimony complained of was admissible for that purpose.

Appellant requested several special instructions which were refused by the court. We believe that the charges requested were fully covered by the court’s general charge.

No reversible error appearing in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BATTIMORE, J.

We have carefully examined appellant’s mo» tion for rehearing. After appellant had testified giving his version of the killing, as set out in our original opinion, it seems obvious that the state might prove that, following appellant’s separation from his wife some time prior to the killing, he had been keeping company with various other women, to some of whom he had made proposals of marriage, etc., the legitimate purpose of same being to show his state of mind toward his wife, and to rebut ths likelihood that he would so keenly resent and be affected by the attentions of deceased to his said wife. There is no suggestion that the women with whom appellant went, or to whom he proposed marriage, were lewd women or women of bad reputation. We do not think' the question of appellant’s motive in doing the shooting to be of such collateral character as that he might not be cross-examined regarding same, or that the state might not show by testimony that his motive was not what he claimed it to be. '

Believing the case properly disposed of, the motion for rehearing will be overruled.


author: CALHOUN, J. MOBEOW, P. J.

text:
    WILSON v. STATE.
    No. 15086.
    Court of Criminal Appeals of Texas.
    June 22, 1932.
    Rehearing Denied Oct. 12, 1932.

      Alonzo Turner, of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, possessing Intoxicating liquor for the purpose of sale; the punishment, one year and one day in the penitentiary.

Ches Logue, sheriff of Moore county, testified for the state substantially as follows: That he had known the appellant for six or eight months, and on the night of January 21, 1931, he had seen the appellant in a car parked on the main stpeet of the town of Dumas about 9 o’clock. When he first saw the appellant, the appellant’s car was parked, and a man by the name of Blackie was with him. Blackie appeared to be drinking, and the appellant and Blackie drove north on the main street, and a little later the witness saw the appellant and Blackie at Blackie’s room in the western part of town. He next saw the appellant out in the country when a car drove up, and there was some loud talking going on. and some cursing, and, when the witness walked over to see what was going-on, he saw a half-gallon jar of whisky sitting in the bottom of the Chevrolet coupé in which the appellant was sitting at the time. The witness then asked the appellant if he did not think he was pretty smart delivering whisky right under a fellow’s eye, and appellant replied that he did not. When the witness saw the whisky in the car, he reached and got the keys out of the car, and, while he was doing this, somebody kicked the whisky and it' fell down on the running board and then down on the ground. The witness also testified that Blackie was drunk at the time and he had a little scufHe with him, but he finally got the whisky and arrested the appellant. He further testified that he had reliable information that the appellant was bootlegging.

The appellant testified that on the occasion in question he was. with some other parties who knew the man Blackie, who was drinking at the time, and these parties asked him to take Blackie home. He did not deny that the whisky was in his car, but did deny that it was in there with his knowledge or consent, and testified that it had been put in said car by some person or persons unknown to him. He also denied that he had been bootlegging.

Bill of exception No. 1 complains of the action of the trial court in overruling appellant’s first application for a continuance to the end that the appellant might get the testimony of Raymond Clark and Shorty Green. The motion stated that both of said witnesses resided in Kilgore, Tex., but that the witness Raymond Clark was absent from the state of Texas, and services could not be' had upon him, and his absence was due to the fact that he was attending court in Oklahoma; that theretofore he had caused subpoenas to be issued for the said Clark and Green to appear before said court on September 21, 1931, and had written to the said Green at Kilgore, Tex., that his presence was needed in behalf of this defendant, but that he did not know the whereabouts of the said Clark and had been unable to get in toueh with the said Clark or the said Green; that, if said witnesses were present, they would testify that they were with this defendant at the time of his arrest and some few minutes prior thereto, and would testify to that fact, and would also testify to the fact that this defendant had nothing to do with a bundle presumably containing intoxicating liquor, and the defendant did not have in his possession or under his control any liquor for the purpose of sale; that the return of the sheriff of Gregg county shows no services upon the witnesses, Shorty Green or Raymond Clark.

It is nowhere stated in said application for a continuance as to when the processes for said witnesses were issued, and therefore we are not able to determine from said motion the diligence used in obtaining their absent testimony or such facts as will excuse a want of diligence. No affidavit of either one of said witnesses was attached to any motion for new trial, nor is any excuse offered for the failure to show; by the affidavit of the witnesses that they would testify to the facts averred in the application for a continuance. It appears from the testimony in this case that the defendant’s own testimony on the trial contradicts what he stated he proposed to prove by the absent witnesses. He testified on cross-examination that neither the witness Green nor the witness Clark were present when he was arrested, and that he did not read the motion for a continuance carefully, and therefore did not intend to say that the said witnesses were present at the time he was arrested. “If the defendant’s own testimony on the trial contradicts what he stated he proposed to prove by the absent witnesses, no error is shown in refusing to continue on account of the absence of such witnesses.” Branch’s Ann. P. C. § 327; Hart v. State, 67 Tex. Cr. R. 497, 150 S. W. 188; Yelton v. State, 75 Tex. Cr. R. 38, 170 S. W. 318; Mathews v. State, 17 Tex. App. 475. We are of the opinion no abuse of discretion on the part of the trial court is shown in overruling the application for a continuance or the refusal to grant the motion for new trial.

Bill of exception No. 3 alleges that the jury was guilty of misconduct, in that at the noon hour, while the jury was at lunch, one or two of the jurors, after having been seated, left the other jurors and carried on a conversation with others not members of said jury. The trial court qualifies said bill of exception to the effect.that said alleged misconduct on the part of the jury was not raised in defendant’s motion for new trial nor was any evidence offered to show misconduct of the jury. As so qualified, there is nothing for this court to pass upon in this bill.

Bill of exception No. 5 sets out that the district attorney made certain remarks calculated to injure the defendant in this case; said remarks being as follows: “The defendant was a Borger bootlegger contrary to the evidence which showed the defendant did not even live in Borger but in Skellytown, Texas.” There are not sufficient facts and surrounding circumstances stated in said bill to apprise this court of the availability and sufficiency of such objections. In the absence of some showing in the bill, we cannot tell what basis there was in fact for the argument'of the prosecuting attorney therein objected to. According to the qualification to said bill, the court instructed the jury not to consider said remarks for any purpose, and the bill further shows that the appellant did not except ta such remarks. “Before reversal can be had on account of improper argument of state’s counsel, it must clearly appear that the remarks were improper and were of material character and such as under the circumstances were calculated to injuriously affect the rights of the defendant.” Branch’s Ann. Penal Code, § 361; Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52, 58; Walls v. State, 69 Tex. Cr. B. 317, 153 S. W. 130; House v. State, 19 Tex. App. 227, 239.

By bill of exception No. 6, appellant complains of the overruling by the court of his motion for new trial. The motion for new trial is not set out in said bill of exception or any part thereof, nor does said motion for new trial appear anywhere in the record in this ease. There is nothing for the court to consider in said bill of exception.

Bill of exception No. 2 complains of 'the refusal of the trial court to instruct the jury to return a verdict of not guilty for the defendant because of the insufficiency of the testimony to warrant a conviction. As we understand the contention of the appellant by his brief, it is that a conviction cannot be sustained upon the independent testimony of one person alone where there is any conflict at all upon the testimony of that one witness, and because the appellant in this case denied he transported or possessed any liquor for the purpose of sale, and that the evidence would not be sufficient to support the conviction, and cites in support of said contention the case of Green v. State, 94 Tex. Or. B. 637, 252 S. W. 499. The Green Case, supra, merely holds that, where the state is compelled to rely for its conviction upon the testimony of a witness, who afterwards, and before motion for new trial is acted on, retracts the truth of such testimony, and himself appears before the court and under oath affirms the testimony as given by him originally was not true, when such testimony is vital to the state’s case, the conviction should be set aside.

No such condition of the evidence- is shown in this case. We have carefully examined the statement of facts, and there are no material contradictions in the testimony of the witness for the state. The fact that the appellant took the stand and denied that he transported any liquor knowingly or that he possessed any liquor for the purpose of sale made it an issue of fact to go before the jury. The jury could believe or disbelieve the testimony of the appellant in whole or in part After a careful review of the testimony, we believe that the evidence is sufficient to support the-verdict

No reversible error appearing in the récord, the judgment is affirmed.

PEB CUBIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court

On Motion for Behearing.

MOBEOW, P. J.

In an unsworn statement filed in this court on July 5, 1932, it is claimed that there was a failure to include in the record proof supporting the contention in bill of exception No. 5; also that there was in fact a motion for new trial which is not included in the transcript The unverified statement mentioned is not sufficient ground upon which to base an application for a writ of certiorari to correct the record. The application is also wanting in merit, for the reason that it fails to set out the facts embraced in the document claimed to have been omitted from the transcript.

In the purported corrected transcript filed August 23, 1932, there is copied the motion for new trial, but there is an absence of any evidence accompanying the record supporting the averments of the motion. There is what purports to be a bystander’s bill attempting to challenge the correctness of bill of exception No. 5 touching the alleged remarks of counsel for the state. The only difference between the bystander’s bill and that prepared by the court is that in the latter it is stated that there was no exception to the remarks of counsel, while in the bystander’s bill the contrary is stated. However, in the court’s bill, it is stated that the jury was instructed to disregard the remarks. : Considered together, the bills fail to show reversible error.

The motion is overruled.