author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Roy Lee KERR, Appellant.
    No. KCD 27292.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.
    Application for Rehearing Denied Feb. 9, 1976.

      Howard L. McFadden, Public Defender, Richard R. Nacy, Jr., Asst. Public Defender, Jefferson City, for appellant.

      John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Roy Lee Kerr was convicted by a jury of murder, first degree, and his punishment was assessed at life imprisonment. Sentence and judgment were rendered accordingly. §§ 559.010, 559.030, RSMo 1969, V.A. M.S.

Appellant does not question the sufficiency of evidence to sustain his conviction, and a jury reasonably could find a case of murder, first degree, from the following facts in evidence:

On November 9, 1972, Carlos W. Rollins, night auditor at Holiday Inn (South), Jefferson City, Cole County, Missouri, was found shot to death near a safe in an office behind the registration desk. The shooting occurred between 3 a. m., when Mr. Rollins was seen alive by Wallace Doty, and 5:50 a. m., when he was discovered by day-shift employees Pauline Kay and Steven Thomas. The area of the registration desk and rear office did not appear to have been ransacked, and there were no signs of a struggle. Lock box No. 11 had been opened with a key normally kept in the cash register at the registration desk. $500 was missing from the lock box and some change was missing from the cash register.

Roy Lee Kerr and Diane Hughes were married March 18, 1961, and were divorced July 5, 1973. In September, 1972, Roy Lee Kerr was living with Cathy Holm at Saint Martins near Jefferson City until she discovered he was already married and left him to return to her home in Addison, Illinois.

In September, 1972, Roy Lee Kerr, under the assumed name of Kenneth Holm, was employed by Holiday Inn as night auditor, the same position held by Mr. Rollins at the time he was killed. His employment began on September 5 or 6,1972, and he worked a total of thirty-two hours, after which he left and did not return. During the time of his employment he learned the business procedures of the job, including knowledge that lock box No. 11 always contained a minimum of $500 and that its key was kept in the cash register. He learned also that the night auditor, whose duty ran from 11 p. m. to 7 a. m., was the only employee at the Inn from 1 a. m. until 6 a. m. Sometime in October, 1972, Roy Lee Kerr solicited information from Anita Mortimer, evening clerk at the Inn, that a night auditor had not yet been hired to replace him. Carlos Rollins began his employment as night auditor on the last day of October or in the first week of November, 1972.

In October, 1972, Emmett Ray Hughes, brother-in-law of Roy Lee Kerr, owned a gold-plated, .22 caliber Sturm Ruger revolver, equipped with walnut grips. The gun, Exhibit 12, was stolen sometime in October, 1972, and the theft was reported to the police. Roy Lee Kerr knew the gun was in the Hughes home and had fired it on prior occasion.

Carol Cook served Roy Lee Kerr dinner at Warwick Village dining room in Jefferson City at 5 p. m., November 8, 1972. He had eaten there for four or five weeks previously.

Investigation commenced immediately after the crime on November 9, 1972. Employment records at Holiday Inn were examined to ascertain employees who knew business procedures followed by the night auditor. The investigation focused on the application and employment of Kenneth Holm; the Inn manager had noted “strange” on his application. As the investigation progressed, Diane Kerr, after hearing a 6 p. m. news broadcast concerning the murder and robbery, voluntarily came to the police station and informed police that Roy Lee Kerr was the person who applied for the job at Holiday Inn as Kenneth Holm, that he also had worked at Chese-brough-Ponds, Inc. in Jefferson City under an assumed name, and that he had probably committed the robbery and murder. Signatures on employment applications at Holiday Inn and Chesebrough-Ponds were compared with the signature of Roy Lee Kerr on a guest registration card at Holiday Inn (Downtown) and they were determined to have been executed by the same person.

An autopsy was performed on the victim and a .22 caliber bullet was recovered from his skull. The bullet caused the victim’s death and it had been fired from Exhibit 12.

Jerome Dolan, an officer in the Addison, Illinois, police department, had been given by Kenneth Holm as a reference on his employment application. Communications between Jefferson City officers, Officer Do-lan, and other Addison officers informed that Roy Lee Kerr was suspected of robbery and murder. Replies by teletype contained data on Kerr’s activities in Addison, Illinois, including Cathy Holm’s present residence in Addison and Kerr’s attempts to visit her there. Such communications also included a report that Diane Kerr had informed Cathy Holm that Kerr had stolen a .22 caliber revolver from her relative several weeks before the robbery.

On November 10, 1972, the Prosecuting Attorney of Cole County, acting on information gathered by police investigation, executed a complaint on his oath alleging that Roy Lee Kerr murdered and robbed Carlos W. Rollins, and an arrest warrant on that complaint was issued by the magistrate court. On November 13, 1972, the Addison police were informed by teletype and telephone that the warrant had been issued for the arrest of Roy Lee Kerr. Later in the day Addison officers arrested Roy Lee Kerr when he went to the Holm residence. Upon arrest, Kerr was searched and Exhibit 12, in loaded condition, was found concealed in his waistband. The gun, together with its load, a spent .22 caliber cartridge, some .22 caliber ammunition, and some money also found on his person, were seized for preservation as evidence by the officers. Roy Lee Kerr was identified by employees of Holiday Inn as being one and the same as Kenneth Holm.

Appellant contends (I) that the court lacked jurisdiction “because the indictment omitted an essential element of the charge, i. e., that a wound was inflicted on the victim by the defendant’s gun.”

Rule 24.01, V.A.M.R., provides that the indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” It is jurisdictional in that if it fails to charge a crime the court acquires no jurisdiction to proceed; and an essential element in a charge of murder is that the accused inflicted a wound from which the victim died. ' State v. Brooks, 507 S.W.2d 375, 376 (Mo.1974). See also State v. Green, 111 Mo. 585, 20 S.W. 304 (1892); State v. Blan, 69 Mo. 317 (1879); 40 Am.Jur.2d, Homicide, § 230.

The indictment charged that Roy Lee Kerr “did willfully, unlawfully, feloniously, premeditatedly, deliberately, and of his malice aforethought make an assault upon one Carlos W. Rollins with a loaded .22 caliber revolver, and then and there feloni-ously, willfully, unlawfully, premeditatedly, deliberately, and of his malice aforethought did discharge and shoot said .22 caliber revolver at and upon the body of Carlos W. Rollins, from which said mortal wound Carlos W. Rollins did die * * *.”

The emphasized portion of the indictment is a sufficient statement that the victim sustained a mortal wound inflicted by accused’s gunshot, in that it states that the accused did “shoot * * * upon” the victim. It is inartful and archaic, but nevertheless it means that accused’s shooting resulted in actual physical contact with and wounding of the victim. See State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245, 251 (1938); and compare State v. Brooks, supra, where there was no allegation in any sense that the accused inflicted a wound on the victim from which he died.

Appellant charges the court erred (II) in admitting in evidence the gun and other articles seized from appellant without a search warrant, without a valid arrest warrant, and not in connection with a lawful arrest, in violation of his rights under United States Constitution, Amendment IV, and Missouri Constitution, Article I, Section 15.

Appellant notes the absence of a search warrant and of an Illinois arrest warrant (see 4 Am.Jur.2d, Arrest, § 20); and argues that the Missouri arrest warrant was invalid because “the complaint stated none of the operative facts as the basis for probable cause for issuance of an arrest warrant” (see Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958)); and because the magistrate made no inquiry into the matters recited in the complaint (see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)). Appellant asserts also that the complaint was not under oath, but the record is to the contrary.

It is not necessary to determine whether the formal complaint and warrant meet the requirements of the foregoing authorities because the dispositive question is, as posed by appellant, whether the seizure was justified as an incident to a lawful arrest without warrant made upon probable cause.

Case law has established that when a law enforcement agency or officer requests another such agency or officer to arrest a suspect on a particular charge, the arresting agency or officer then has probable cause to sustain the validity of the arrest; that validity of the arrest is determined by existence of probable cause for the arrest in the demanding authority, and invalidity of an existing arrest warrant does not render an arrest invalid when the arresting and demanding authorities otherwise have probable cause for the arrest. State v. Owens, 486 S.W.2d 462 (Mo.1972); State v. Ford, 495 S.W.2d 408 (Mo. banc 1973); and Young v. United States, 344 F.2d 1006 (8th Cir. 1965), recognize that an arresting officer need not have personal knowledge of the facts constituting probable cause in order to make a valid arrest upon the request of one who possesses probable cause. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Dearinger v. United States, 378 F.2d 346 (9th Cir. 1967); State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970) (reversed on other grounds); and Whiteley v. Warden, supra, recognize that an arrest, although backed by an invalid warrant, is a lawful arrest if the demanding authority had probable cause for the arrest.

Thus, the arrest of Roy Lee Kerr does not depend on personal knowledge of Illinois arresting officers of the facts constituting probable cause, nor on validity of the Missouri arrest warrant. The question then is whether the demanding officer in Missouri had probable cause to arrest defendant or to have him arrested by the Illinois officers. The test is whether the information possessed by the Missouri officers was sufficient to warrant a man of reasonable caution in believing that an offense had been committed, and whether the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing the accused had committed an offense. State v. Maxwell, 502 S.W.2d 382, 386[1] (Mo.App.1973).

Within the scope of the foregoing test, and under the authorities cited, Missouri officers, at the time of their demand for the arrest of Roy Lee Kerr by Illinois officers, reasonably knew: that Carlos Rollins had been shot to death; that at least $500 in his custody at Holiday Inn was missing; that Roy Lee Kerr had been living in Jefferson City, working under assumed names, one of which was Kenneth Holm; that as Kenneth Holm he worked at Holiday Inn for 32 hours in September, 1972, and learned the procedures for handling money in the job held by Carlos Rollins at the time of his death; that there was no evidence of ransacking or struggle in the office where the crimes were committed; that the lock box had been unlocked by a key ordinarily kept in the desk cash register; that Carlos Rollins was killed by a .22 caliber bullet; that a .22 caliber pistol had been stolen from the home of Kerr’s brother-in-law in October, 1972; that, according to the Illinois police, Diane Kerr had informed Cathy Holm that Kerr had stolen the gun some weeks prior to the crime; that Diane Kerr had told the police that Roy Lee Kerr and Kenneth Holm were one and the same and that he probably had committed the robbery and murder. Such knowledge constituted probable cause for the arrest of Roy Lee Kerr; the search of his person was properly conducted as an incident of that arrest, and the items seized became admissible in evidence against him.

Appellant argues also under Point II that the arrest and search were invalid because they were based on information supplied by his wife. Intertwined with this argument is appellant’s contention (III) that the court erred in refusing to suppress evidence obtained through information supplied by his wife. Appellant asserts that use of information gained from Diane Kerr violated the rule that a wife is incompetent to execute a complaint for an arrest warrant against her husband except where she is the victim of her husband’s crime (see Ex parte Dickinson, 132 S.W.2d 243 (Mo.App. 1939)), and the rule that a woman cannot testify against her husband with respect to any admission or confidential communications of her husband (see Sections 491.020 and 546.260, RSMo 1969, V.A.M.S.); and that all evidence which flowed from information supplied by Mrs. Kerr should have been excluded as “fruit of the poisonous tree” (see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

Insofar as this record shows, Diane Kerr went to the police of her own volition and without solicitation informed the police that Roy Lee Kerr and Kenneth Holm were one and the same and that she believed he committed the murder and robbery at Holiday Inn. The difficulties in appellant’s position are thus obvious. There is no evidence that the information given by Mrs. Kerr came from any confidential communication between her and her husband, Allen v. Allen, 60 S.W.2d 709, 711 (Mo.App.1933); Sections 491.020 and 546.-260, supra, provide only for a testimonial privilege; and it does not appear to be illegal for a spouse to speak to or “tip” law enforcement authorities even where confidential communications may be involved. Consequently, there is no illegality upon which to found the “fruit of the poisonous tree” argument.

Appellant charges the court erred (IV) in failing to grant a mistrial when State’s witness Cathy Holm volunteered that she left defendant, with whom she had been living, after she found he was still married.

The incident in question arose as follows:

“Q [By Mr. Brydon for the State] You say you were living in St. Martins, Missouri. Who was living there? A Roy and I. Q This was in October of 1972? A No, that would have been in September. Q September. A In October I saw him back in Addison.
“Q When did you leave St. Martins? A When I found out he was still married.
“MR. BRYDON: I have no further questions. * * *
“MR. McFADDEN [for the defendant]: Your Honor, that last answer was not responsive to the question. It was totally voluntary. It’s highly inflammatory. It’s not admissible for any reason, has no bearing upon any issue in this case. I ask it be stricken and not only that, I’d ask a mistrial be declared on the grounds that it appears to have been a predesigned response on the part of the Prosecution.
“THE COURT: Well, the objection will be sustained. * * * The jury will disregard the last answer made by the witness to the Prosecutor’s question, and request for mistrial will be denied.”

Appellant, in contrast to the foregoing reasons for a mistrial presented to the trial court, now says the volunteered statement required a mistrial because it implied “a relationship of either bigamy or adultery, both of them crimes totally unrelated to that for which [he] was being tried.”

The foregoing demonstrates that the grounds for mistrial now asserted are not the same as those presented to the trial court. Accordingly, the point has not been preserved for review. State v. Spencer, 486 S.W.2d 433, 434 (Mo.1972); and since the court immediately instructed the jury to disregard the volunteered statement, it does not appear as a matter of “plain error” that the court abused its discretion in refusing to declare a mistrial. Rule 27.20(c), V.A. M.R.; State v. Parker, 476 S.W.2d 513, 515-516 (Mo.1972).

Appellant charges the court erred (V) in allowing witness Hughes to testify the .22 caliber pistol in evidence had been stolen “because it constituted evidence of another crime,” and tended to prove nothing in the case, State v. Martin, 506 S.W.2d 473 (Mo.App.1974); State v. Burnett, 429 S.W.2d 239 (Mo.1968); Mo.Dig., Criminal Law <&wkey;369; and (VI) in admitting Exhibit 11, an employment application in the name of Kenneth Holm, because it was irrelevant.

Reference to other crimes unrelated to the case on trial violates a defendant’s right to be tried for the offense with which he is charged unless such proof has some legitimate tendency to establish defendant’s guilt of the crime charged. State v. Martin, supra, 506 S.W.2d 1. c. 474[2, 3]. In the latter respect, proof tending to show that defendant stole the murder weapon from his brother-in-law was legitimate proof of his preparations to commit the crime. State v. McRoberts, 485 S.W.2d 70 (Mo.1972); State v. Boyer, 476 S.W.2d 613 (Mo.1972). The same may be said of Exhibit 11 because, by obtaining employment under a fictitious name, defendant became acquainted with money procedures at Holiday Inn while at the same time hiding his true identity.

Appellant contends the court erred (VII) in admitting the opinion of Kenneth Miller that the fatal bullet came from the gun found on defendant “where there was no testimony as to the facts on which that opinion was based.” See 20 Am.Jur., Evidence § 794; Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119 (1902); Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 565 (1933).

Mr. Miller, after qualifying as a ballistics expert, described the procedures he used, what he looked for by way of “class” characters, signature striations, etc. He testified to matters within his personal knowledge and observation. Receipt of his opinion was proper under the rule that an expert witness may base his opinion on matters within his personal knowledge or observation, or upon competent evidence, or both. Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 163 (Mo.1952) (reversed on other grounds); Summers v. Tavern Rock Sand Co., 315 S.W.2d 201, 206 (Mo.1958).

Appellant charges the court erred (VIII) in admitting in evidence Exhibit 14, four live .22 caliber bullets and one spent .22 caliber casing, and Exhibit 17, $228 in paper currency, because they were not shown to be relevant to any issues at trial.

The items constituting Exhibits 14 and 17 were part of the property taken from the person of Roy Lee Kerr upon his arrest. The expended casing was relevant in that it bore on whether defendant had fired the fatal shot. The State’s expert testimony showed that the fatal bullet and the expended casing were fired from the gun found on defendant’s person, although the expert could not say that the fatal bullet came from the casing in question. Nevertheless, since no casing was found at the scene, the jury could infer that defendant had retained it and, found on his person, tended to identify him with the crime. It does not appear how the four live bullets of Exhibit 14 and the currency, Exhibit 17, were relevant to any issue in the case. However, there is no claim that these items inflamed the jury, they were not evidence of other crimes (see State v. Ball, 339 S.W.2d 783 (Mo. banc I960)), and it does not appear that they diverted the jury’s attention from the issues it had to resolve. In such circumstances, those items fall within the rule that “admission in evidence of facts immaterial or irrelevant to the issues and without probative force cannot constitute prejudicial or reversible error.” State v. Walden, 490 S.W.2d 391, 393 (Mo.App.1973). See also State v. Parker, supra, where the court found that testimony of witnesses surmising that a burglary was in progress was irrelevant, but reversal was not required because admission of irrelevant and immaterial evidence is not inherently prejudicial.

Appellant asserts (IX) that testimony of Officers Patton and Finke was completely irrelevant and immaterial. Appellant concedes that the effect of their testimony is difficult to assess, but argues that such testimony prejudiced defendant because the witnesses were police officers, offered by the State and against defendant.

The testimony of Officers Patton and Finke was material and relevant as a foundation for testimony from Carol Cook who recognized defendant from a photograph and placed him in Jefferson City on the eve of the robbery-murder, and for testimony from Officer Jerome Dolan that he knew Roy Lee Kerr in Addison, Illinois, as well as knowing his use of aliases Ken Holm and Doug Holm.

Judgment affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Billie Maxine WOOD, Appellant.
    No. KCD 27597.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.
    Application for Rehearing Denied Feb. 9,1976.
    John W. Inglish, Carson, Inglish, Monaco & Coil, Jefferson City, for appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Billie Maxine Wood, charged with murder, second degree, was convicted by a jury of manslaughter and her punishment was assessed at a fine of $500. Sentence and judgment were rendered accordingly. §§ 559.020, 559.070, 559.140, RSMo 1969, V.A.M.S.

The facts are stated by quotation from appellant’s brief:

“Hershel Wood, the husband of the defendant, Billie Maxine Wood, * * * was in the service station business at Osage Beach, Missouri, in conjunction with which he operated a wrecker service. When he accumulated too many cars at the station, he would tow some to his home. The deceased, Paul Franklin Byrd, had wrecked his 1965 Ford Eeonoline Van on July 29, 1972, at which time it was towed to Hershel Wood’s station and, sometime later, to Mr. Wood’s home.

“On October 7, 1972, at about 10:00 or 11:00 a.m., the deceased and his brother, Daniel Max Byrd (Danny), went to the Wood home for the purpose of getting the Van. * * * Upon arrival at the Wood home, both the deceased and his brother got out of the car and the deceased went to the door of the house and knocked. Defendant and her daughter, Marilyn Sue Golden, were in the dining room drinking coffee. Defendant looked out the picture window and saw the deceased approaching. The deceased, a very large man, had long hair and a black beard. His appearance frightened defendant. She expressed her fear to her daughter and asked her to go to the door, but she went herself. The deceased told defendant he had come for the Van and she said she would have to call the station to see what the charges were against it. Defendant called her husband who said he would have to call the Shell station because he had written it down there and he would have to find out how many days storage to charge. Meanwhile, deceased and his brother had gone down toward the Van. Defendant then tried to call her son, Larry, who lived within walking distance of the Wood home, but the line was busy. She then sent Larry’s six or seven year old son to get him. Defendant looked out the window and saw that deceased and his brother were hooking up the Van. She called Larry again, got through this time, and told him to ‘get out here fast.’ In the three or four minutes it took Larry to get there, defendant’s husband had called back and told her the charge on the Van was $95.00. Defendant told Larry the charge was $95.00 on the Van.

“In the meanwhile, deceased and his brother, Danny, had backed his car up to the Van, opened the trunk of their car, taken out the tow bar and were in the process of hooking it up when Larry came down to where they were. On Larry’s approach, deceased and his brother stood up and Larry said ‘You better pay before you hook that up.’ Deceased said, ‘Pay what?’ Larry said, ‘For towing and storage.’ Deceased asked, ‘How much?’ Larry said ‘$90.00’ or ‘$95.00.’ Deceased said, ‘What for, just for a 5-mile towing bill?’ and went back to work on the tow bar.

“At this point, there is a discrepancy in the testimony. Deceased’s brother, Danny, testified that Larry took a tire tool out of the trunk of their car and swung at deceased, while Larry testified that after he had told them a couple of times to leave the Van there until he had paid the bill, deceased ‘jumped’ him. Larry also testified that he did not have anything in his hand at the time, but picked the tire tool up after deceased got off him. According to Danny’s version, deceased grabbed Larry’s arm that had the lug wrench in it and they started ‘wrestling around’ while, according to Larry, he was trying to get away from deceased when he fell over the car and that is when deceased pinned him down.

“Danny also testified that deceased may have had his hand on the lug wrench but, if so, it was in the process of trying to get it away from Larry. He testified that he, Danny, never touched it. Danny also testified that at this point, Larry was trying to get away from deceased and deceased was trying to keep him from getting away so he wouldn't hit him. * * *

“Deceased was on top of Larry on the trunk or hood of a car. Larry was kicking so Danny grabbed Larry’s feet or ankles. According to Danny, Larry was helpless. Deceased had hold of Larry’s right hand with his left hand because Larry had the lug wrench in his right hand, but he couldn’t see what deceased was doing with his right hand. According to Larry, deceased was hitting him and choking him with both hands on his throat and Larry had nothing in his hand. Defendant then heard voices, looked out and saw the fight. She screamed and ran toward the bedroom, and got a pistol. Defendant’s daughter ran out of the house through the yard, picked up a Pepsi bottle and screamed at deceased and his brother to let Larry go. Deceased just looked back at her and raised his foot like he was going to kick her, but did not stop. She testified that deceased had his hands around Larry’s neck. She could not see Larry’s hand, but did not see a lug wrench. Defendant testified that when she got there, deceased was choking Larry, ‘had his hands around his neck and his face was blood red and tears was in his eyes and he took — I knew he couldn’t say nothing, but he was looking right at me.’ She was screaming and when she got a few feet away, she told the deceased twice to turn Larry loose, but he wouldn’t. She then shot the pistol in the air twice. Danny testified there were no warning shots. Danny turned loose of Larry and left, but deceased ‘just kinda raised up’ and said ‘God damn’ but did not turn loose of Larry. Defendant then pointed the pistol toward deceased and Larry and fired. Deceased then said, ‘She shot me,’ and turned loose of Larry. * * Deceased then got off Larry and defendant could see Larry’s hands, but she didn’t see a lug wrench. According to Danny, Larry still had the lug wrench in his hand. Defendant then, at Larry’s request, gave him the gun. An altercation then followed between defendant’s daughter and Danny who was trying to get into the house to call a doctor, and Danny was hit over the head with the lug wrench by Larry. According to Danny, defendant said, ‘Give me the gun and I will kill him, too.’ Larry’s testimony was that he picked up the lug wrench when he went to the defense of his sister while Danny testified that Larry had the wrench in his hand all the time. Danny and deceased left in their car, went to a doctor at Lake Ozark, thence to another doctor in Eldon who pronounced Paul Byrd, the deceased, dead.”

The court gave, among others, MAI-CR 2.40 on the defense of justifiable homicide in lawful defense of one’s child, MAI-CR 6.06 on murder, second degree, and MAI-CR 6.08 on manslaughter.

Appellant charges the court erred in instructing the jury on the issue of manslaughter “because there was no evidence to warrant such an instruction.” She argues that defendant was acting in defense of her son and if the jury found that in doing so she acted reasonably and within the standards of Section 559.040, RSMo 1969, V.A. M.S., defining justifiable homicide, she was justified in her actions and should have been acquitted; that conversely, if she was not justified, she should have been convicted of murder, second degree; that there was no evidence of and no contention on her part that she was acting in the “heat of passion” or under “lawful provocation,” but by instructing on manslaughter, the court permitted the jury to convict her of an offense which the facts did not support.

Appellant supports her argument with a detailed history of the case law and comments on manslaughter at common law and in Missouri, including, among others, State v. Gore, 292 Mo. 173, 237 S.W. 993 (1922); State v. Williams, 442 S.W.2d 61 (Mo. banc 1968); State v. Ryan, 492 S.W.2d 116 (Mo.App.1973); State v. Bird, 286 Mo. 593, 228 S.W. 751 (1921); State v. Smith, 518 S.W.2d 665 (Mo.App.1975); State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971); State v. Amerson, 518 S.W.2d 29 (Mo.1975); State v. Patterson, 484 S.W.2d 278 (Mo.1972); State v. Packwood, 26 Mo. 340 (1858); State v. Kelsay, 228 S.W. 754 (Mo.1921); State v. Hollingsworth, 156 Mo. 178, 56 S.W. 1087 (1900); State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975); The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, Manslaughter, p. 8, John Scur-lock; 27 Mo.L.Rev. 1 (1962), Criminal Law in Missouri — Manslaughter, A Problem of Definition, Edward H. Hunvald, Jr.

Appellant recognizes that her position is “flying in the face of the latest decision of the Supreme Court of Missouri on this subject,” but urges “this Court as the one having jurisdiction of this appeal to reconsider the whole subject of homicide and return it to a posture more logical than that in which it now finds itself.”

Appellant’s position and invitation are fraught with several difficulties:

First, it is the constitutional duty of this court to follow the last controlling decisions of the supreme court. Art. V, § 2, Const. of Missouri, 1945. In this respect, “the trial court is required to submit manslaughter in murder second degree cases on the basis of the evidence which supports the second degree murder instruction even though there is no evidence of lack of malice or premeditation — no evidence of provocation.” State v. Stapleton, supra, 518 S.W.2d l.c. 300[5].

Second, with respect to the invitation “to reconsider the whole subject,” it is noted that the supreme court by order, September 25, 1975, effective September 28, 1975, applicable to trials of offenses committed on or after September 28, 1975, has reiterated its position in State v. Stapleton, supra, directing that “the court must give an instruction on manslaughter (MAI-CR 6.08) in all cases where any higher homicide offense, conventional or felony murder, is submitted to the jury. This follows from the nature of manslaughter.” See special direction 2 as to the submission of lesser graded or necessarily included homicides under Note on Use 4, MAI-CR 6.02, 9-25-75, effective 9-28-75.

Third, the foregoing propositions are consistent with Rule 26.06, V.A.M.R., that “a defendant * * * shall have no just cause for complaint because * * * the evidence showed or tended to show him to be guilty of a higher degree of the offense than that of which he was convicted”; and Section 556.220, RSMo 1969, V.A.M.S., that “Upon indictment for any offense consisting of different degrees, * * * the jury may find the accused not guilty of the offense charged * * *, and may find him guilty of any degree of such offense inferior to that charged * * * ; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence * * * shows him to be guilty of a higher degree of homicide.”

Judgment affirmed.

All concur.

      . State v. Stapleton, supra, decided a case tried prior to January 1, 1972.


author: FLANIGAN, Judge.

text:
    John H. GODSY et al., Plaintiffs-Appellants, v. Gladys GODSY et al., Defendants-Respondents.
    No. 9720.
    Missouri Court of Appeals, Springfield District.
    Dec. 23, 1975.

      Robert C. Jones, Jones & McDaniel, Kansas City, Esco V. Kell, West Plains, for plaintiffs-appellants.
    John C. Holstein, Moore & Brill, West Plains, Dorman L. Steelman, Salem, for defendants-respondents.
    Before STONE, P. J.,' and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is a will contest, the procedure for which is contained in § 473.083 V.A.M.S.

Plaintiffs-appellants are the brother, two sisters, and the lineal descendants of a deceased sister of the testatrix Alta Godsy, who died on February 4, 1966. Alta Godsy was not survived by a husband or by lineal descendants.

Defendants-respondents are Gladys God-sy (sued individually and as executrix of the last will of Alta Godsy) and nine children of Hiram Godsy. Hiram, a brother of the testatrix, predeceased her.

The attacked will was dated April 29, 1963. Hiram died in 1964. In July 1966, the will was admitted' to probate in the probate court of Howell County, Missouri, and letters testamentary were issued to defendant Gladys Godsy. Gladys is the widow of Hiram and the mother of at least seven of the defendants.

The original petition was filed on April 7, 1967. Hiram’s children were not named as defendants. The only defendants named therein were Gladys Godsy, individually, and Gladys Godsy in her capacity as executrix of the will. On September 12, 1967, Gladys filed a “Motion to Abate” on the ground that plaintiffs “have not included (Hiram’s children) as parties defendant.” That motion was denied.

On October 27,1972, the plaintiffs filed a motion for leave to amend their petition “to make (Hiram’s children) parties defendant in this action.” The motion described Hiram’s children as “beneficiaries under said purported will.” The motion was granted and on December 7, 1972, the plaintiffs filed their amended petition. Prior to the filing of that document, which named Hiram’s nine children as defendants, they had not been so named. Separate summonses, directed to each of Hiram’s nine children, were issued, the earliest being dated December 8, 1972.

On January 5, 1973, three of Hiram’s children filed a motion to dismiss, based on three grounds which were:

1. “The statute of limitations has run on the claim filed herein against these defendants.”

2. Plaintiffs had failed to comply with § 473.083(1) V.A.M.S. — the “six months provision” with regard to filing the petition.

3. Plaintiffs had failed to comply with § 473.083(4) V.A.M.S. — the “60 days provision” with regard to service of process upon all defendants.

Also in January 1973, four other children of Hiram filed a motion to dismiss on the same grounds except that the one alleging noncompliance with § 473.083(4) mentioned 90 days rather than 60 days.

The court entered an order sustaining both motions to dismiss and plaintiffs appeal from this order. The appeal fails.

In its order the trial court did not state the ground or grounds on which it relied. The dismissal is valid if any of the grounds was valid, whether or not it induced the order. Spiking Sch. Dist. v. Purported Enlarged Sch. D., etc., 362 Mo. 848, 245 S.W.2d 13,16[2] (banc 1952); Gruetzemacher v. Billings, 348 S.W.2d 952, 955[1] (Mo.1961).

The right to contest a will does not exist independently of statutory authority and it can be exercised only “in accordance with and within the limits prescribed by statute.” Blatt v. Haile, 291 S.W.2d 85, 88 (Mo.1956). Section 473.083 confers jurisdiction upon the circuit court in derogation of common law, Haas v. Haas, 504 S.W.2d 44, 46 (Mo.1973), and “after the lapse of the prescribed period the court has no jurisdiction over the subject matter of the contest.” Sanderson v. Richardson, 432 S.W.2d 625, 630 (Mo.App.1968).

Plaintiffs assert that they did comply with § 473.083 and they develop this contention with their “points relied on.” The latter are:

1. Hiram’s children were not necessary parties to the action.

2. Even if Hiram’s children were necessary parties, plaintiffs have shown the “good cause” mentioned in § 473.083(4).

3. Because of alleged “deceptions” on the part of Gladys Godsy, Hiram’s children “are estopped from defending this action on the ground that [it] is barred by the statute of limitations.”

The first question for resolution is whether Hiram’s children were necessary parties.

Both the petition and the amended petition alleged that Alta, on the date of her death, had “a large amount of property and that most of said property was personal property consisting of cash, promissory notes, and certificates of time deposit (sic) and the like.”

Alta’s will, the contents of which were set forth in both petitions, made nominal bequests to some of the plaintiffs and devised and bequeathed the residue “to my beloved brother, Hiram Godsy.” Article III of the will contained this language: “In the event that any of the persons named by me in this will to whom bequest has been made should predecease me, I bequeath his or her share to the bodily heirs of such person.”

Section 474.460 V.A.M.S. reads: “When any estate is devised to any child, grandchild or other relative of the testator, and the devisee dies before the testator, leaving lineal descendants, the descendants shall take the estate, real or personal, as the devisee would have done if he had survived the testator.”

Section 472.010(7) V.A.M.S., in defining the word “devise” when used as a verb, reads: “It means to dispose of real or personal property or both by will.”

Additional definitions contained in § 472.-010 are:

(8) “Devisee” includes “legatee.”

(19) “Legatee” means a person entitled to personal property under a will.

The foregoing definitions apply to § 474.-460 since that statute is a part of the “Probate Code” as that term is defined in § 472.-010(5).

Hiram’s children, of course, are his “lineal descendants.” If, which need not be decided, § 474.460 operates on the gift of the residue to Hiram, they would take “the estate as [Hiram] would have done” if he had survived Alta.

A distinguished authority on Missouri probate law, in discussing § 474.460 V.A. M.S., says: “While no Missouri decision has expressly so declared, the statute does not operate to prevent the operation of an express devise over upon the death of the primary devisee prior to the death of the testator.” Missouri Practice, Probate Law and Practice, Maus, Yol. 4, § 1468, p. 600.

If the language of Article III of the will, quoted above, operates on the gift of the residue to Hiram, each of Hiram’s children, being included in the term “bodily heirs,” participates in Hiram’s share.

Accordingly, under the language of Article III of the will and under § 474.460 V.A.M.S. one of which must operate on the gift of the residue to Hiram, each of Hiram’s children is a legatee. “A legatee is a necessary party to a suit to set aside a will.” Kane v. Mercantile Trust Co. National Association, 513 S.W.2d 362, 363[2] (Mo.1974).

The dismissal was valid because service of process was not “secured and completed upon all parties defendant” within the period prescribed by § 473.083(4) and there was no showing by plaintiffs of “good cause for failure to secure and complete service” within the meaning of that statute.

In Doran v. Wurth, 475 S.W.2d 49 (Mo.1971) a will contest was filed. Legatees under the will were Anna Wurth and other people. Only Anna was named as a defendant. More than 60 days (the period then mentioned in § 473.083(4)) after the petition was filed, plaintiffs filed an amended petition adding the other legatees as defendants. The trial court dismissed the action and the plaintiffs (contestants) appealed.

It was agreed that the belatedly joined legatees were necessary parties and contestants made no attempt to show good cause for failure to secure and complete service. Contestants relied upon Gresham v. Talbott, 326 Mo. 517, 31 S.W.2d 766 (1930) which held that necessary parties to a will contest could be brought in by amendment of the petition after the running of the statutory period in which such suits may be instituted, where the suit was brought within the statutory period.

In Doran the respondents successfully argued that the legislature changed the law by adding to § 473.083 the counterpart of what is now § 473.083(4).

The supreme court stated that the amendment was a legislative declaration “that a contest of a will admitted to probate shall be expeditiously prosecuted or not at all.”

At p. 51 of 475 S.W.2d the court said: “In our opinion, the General Assembly intended, by its amendment to the ‘will contest’ statute, that, absent good cause for failure, all necessary party defendants be named and served within the prescribed period. The trial court properly dismissed the action.”

In Kane v. Mercantile Trust Co. National Association, 513 S.W.2d 362 (Mo.1974) the supreme court upheld the judgment of the trial court which dismissed a will contest on the ground that plaintiffs failed to secure and complete service of process on all necessary parties defendant within 90 days following the filing of the petition.

The petition had failed to name as a defendant a certain legatee. That legatee was, in the language of the will, “the pastor or acting pastor of the New Cathedral Church located at Newstead Avenue and Lindell Blvd. in St. Louis, Missouri.” The court held that the unnamed but identified pastor was a necessary party and that, because he was not named and served within the statutory period and there was no showing of good cause for failing to do so, the action was properly dismissed.

In support of their contention that Hiram’s children were not necessary parties, plaintiffs state that the amended petition did not charge Hiram’s children “with any law violation relative to the last will of Alta Godsy” and that “calling them defendants in the title did not make them defendants.”

As has been shown, their status as legatees rendered Hiram’s children necessary parties. The fact that they were not accused of any misconduct did not remove them from that classification. In Kane, supra, the unnamed legatee, the pastor, was held to be a necessary party and there was no claim of misconduct on his part. The same is true of the belatedly joined legatees in Doran, supra. If plaintiffs’ argument were sound, a legatee who was guilty of misconduct would have greater rights than an innocent one. Such a penalty will not be exacted as the price of innocence. This argument is rejected.

Plaintiffs also say that the amended petition sought no relief against Hiram’s children and thus they are not necessary parties. That contention is not valid. The amended petition, as did the original one, sought a declaration that the will of April 19,1963, was invalid. Had that result been accomplished, the participation of Hiram’s children in the estate of the testatrix would have been diminished.

Finally, under their first point, appellants say that “none of the nine persons designated as defendants in the [caption] of the amended petition were named as legatees or devisees in Alta Godsy’s last will.” That argument is unsound.

“The authorities fully affirm the rule that it is not necessary that the testator name the legatee or devisee in order to give effect to a bequest; it is sufficient that he is so described in the will as to be ascertained and identified.” 80 Am.Jur.2d 296 Wills § 1184.

In Thompson on Wills, Second Edition, § 262, p. 340 it is said: “It is not necessary that the testator, in his will, name the legatee or devisee, in order to give effect to the gift. It is sufficient if he is so described therein as to be ascertained and identified. . The right of the testator to designate the beneficiary by description, instead of by name, has never been questioned.”

Whether or not the “bodily heirs” of Hiram were confined to his children, it is clear that the latter were included in the term. It follows that they were necessary parties.

Although the original petition was filed within the nine months period then provided by § 473.083(1), that document, the only one filed within that period, failed to name Hiram’s children as defendants. In Sanderson v. Richardson, 432 S.W.2d 625, 631 (Mo.App.1968) there is language, citing authorities, to the effect that these facts alone militate a dismissal.

In Doran, supra, the original petition (which failed to name some legatees as defendants) was filed September 15, 1969. The amended petition (joining the theretofore unjoined legatees) was filed May 6, 1970. The court at p. 50 of 475 S.W.2d mentioned that the parties agreed that the belatedly joined legatees “were not named and served as defendants within sixty days after the petition was filed on September 15, 1969.”

It seems to this court, in light of the holding in Doran, that compliance with § 473.083(1) requires that there be filed, within the defined six months period, a petition which names as defendants all necessary parties; further, once § 473.083(1) has received compliance, the contestants have the additional duty to comply with § 473.083(4).

It should be noted that although § 473.-083(4) contains a showing of “good cause” as a defense to a claim of noncompliance with it, § 473.083(1) contains no such exception.

Apparently plaintiffs have assumed that they did comply with § 473.083(1). But, they say, even if they did not comply with § 473.083(4), their second and third contentions spare them from dismissal. Apparently they maintain that those two contentions justify the setting aside of the dismissal, whether the latter was based on noncompliance with § 473.083(1) or noncompliance with § 473.083(4), or both.

The second and third contentions of plaintiffs are intertwined and will be considered together. In essence plaintiffs claim that they have shown “good cause for failure to secure and complete service” within the meaning of that saving language of § 473.083(4).

The burden of proof on the issue of good cause rested upon plaintiffs. Sanderson v. Richardson, 432 S.W.2d 625, 631[8] (Mo.App.1968).

At the hearing on the motions to dismiss, plaintiffs did not introduce the testimony of any witness. The six pages of the transcript which purport to cover that hearing contain primarily colloquy among the court, plaintiffs’ counsel and defendants’ counsel.

At one point counsel for plaintiff states: “I want all the records of the probate file admitted into evidence of Alta Godsy during the period of time in which Delbert Godsy appeared as executor, all of the proceedings of Delbert Godsy as executor, with particular attention at this time to the inventory and appraisement filed by executor Delbert Godsy in the estate of Alta Godsy, deceased, filed 5-19-66, showing the assets as they appeared from the record of the assets.

“I want all of the records of the probate of Alta Godsy, deceased, wherein Gladys Godsy appears as executrix and particularly the record of the inventory and appraisement filed by Gladys Godsy, wherein it shows that there are no assets of the estate.”

None of the records, or purported records, mentioned in the foregoing statement is attached to the transcript on appeal.

At the hearing on the motion a copy of the opinion of this court in Godsy v. Godsy, 504 S.W.2d 209 (Mo.App.1973) (hereinafter called “the prior case”) was marked as plaintiffs’ Exhibit 1. The transcript on appeal contains a stipulation of the parties to the effect that plaintiffs’ Exhibit 1 may be filed separately in this court and it makes no mention of the probate court records heretofore alluded to.

Where exhibits are omitted from the transcript and are not filed with the appellate court, the intendment and content of such exhibits will be taken as favorable to the trial court’s ruling and as unfavorable to appellant. Lange v. Baker, 377 S.W.2d 5, 7[4] (Mo.App.1964); Herrman Lumber Co. v. Cox, 521 S.W.2d 4, 7[7] (Mo.App.1975).

Thus the only evidence which plaintiffs have presented to this court in an effort to carry their burden of proof on “good cause” is Exhibit 1.

The prior case was a discovery of assets proceeding under § 473.340 et seq., V.A. M.S. brought by a brother of Alta Godsy against Gladys Godsy as the executrix of Alta’s estate. Hiram’s children were not parties in the prior case. This court affirmed the order of the circuit court requiring Gladys to transfer “to the estate’s personal representative” certain personal property. The assets had been the sole property of Alta and the transfer of them by Alta to Gladys was invalidated by reason of a confidential relationship existing between Alta and Gladys and the exercise of undue influence.

Plaintiffs argue that until this court handed down its opinion in the prior case, their cause of action to contest the will of Alta Godsy “lacked vitality ... for there was nothing to contest.” They say “Not until [the handing down of this court’s opinion in the prior case] could appellants say with certainty that they had been deceived. Not until then did their cause of action accrue.” Finally they say “Because of her deception Gladys and her children are estopped from defending this action on the ground that the action is barred by the statute of limitations.”

It will be observed that none of the foregoing arguments involves matters pertaining to the “service of process” or the securing and completion of same. Hiram’s children were well known to plaintiffs (in the body of the original petition filed April 7, 1967, plaintiffs listed all nine of them).

Far from proceeding “diligently” to secure and complete service of process, as required by § 473.083[4], plaintiffs did not proceed at all until December, 1972, at which time the amended petition was filed. Personal service thereof was soon obtained on seven of Hiram’s nine children. Thus if the “good cause,” required to be shown by plaintiffs, must pertain to difficulties in obtaining service of process, such, far from being shown, was clearly refuted.

Plaintiffs’ arguments, if they merit discussion, meet the same fate. In saying “there was nothing to contest” they are wrong. That which they were contesting was the validity of the will of Alta Godsy, not the size of her estate. Both the original petition and the amended petition alleged that Alta died on February 4, 1966, “possessed of a large amount of property.” The order in the prior case required the delivery to Alta’s estate of assets owned by Alta. Indeed, the very nature of a discovery of assets proceeding under § 473.340 is that a person, in the language of the statute which was in effect when the prior case was instituted, “has concealed or embezzled, or is otherwise wrongfully withholding any personal property of the decedent.” Thus the outcome of the prior case, though manifestly of fiscal significance to the will contest, did not create rights which did not previously exist.

The period during which a will contest may be instituted was triggered, under § 473.083(1), by the probate of Alta’s will, or by the first publication of notice of granting of letters on her estate, whichever was later, and not by the outcome of the prior case. Hiram’s children were not parties to the latter, nor did it involve the issue of the validity of the attacked will.

Regardless of the nature of Gladys’ conduct, which prompted the prior case, it was not the conduct of Hiram’s children. See Armor v. Frey, 253 Mo. 447, 161 S.W. 829, 836[7] (1913). Indeed plaintiffs’ argument, under their first point, treated them as innocent of wrongdoing. Their interests conflicted with those of Gladys. If Gladys had won the prior case, they would have inherited less from Alta because Alta’s estate included assets which the judgment in the prior case required to be transferred to the estate. Whether or not the doctrine of estoppel may be invoked by plaintiffs facing possible dismissal under § 473.083(4) no facts have been shown by plaintiffs to support such invocation.

The judgment is affirmed.

STONE, P. J., concurs.

HOGAN, J., not voting.

      . Gladys Godsy, individually and in her capacity as executrix of the will, was also named.

      . Section 473.083(1) reads: “Unless any person interested in the probate of a will appears within six months after the date of the probate or rejection thereof by the probate court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition to the circuit court of the county contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate court, then probate or rejection of the will is binding.”
      Previously the time limit was nine months. The six months limit was contained in an amendment in 1969; see Laws of Missouri, 1969, p. 550.

      . Section 473.083(4) reads: “In any such action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of the petitioner:”
      Previously the time limit was 60 days. The 90 days limit was contained in an amendment in 1969; see Laws of Missouri, 1969, p. 550.

      . Thompson on Wills, Second Edition (1936) § 271, p. 350 reads in part: “In their technical meaning the terms ‘heirs of the body’ and ‘bodily heirs’ denote all lineal descendants to the remotest posterity, meaning a class of heirs appointed by law to succeed to real estate in case of intestacy. But such terms, when used in a restricted sense, may mean children. The words ‘bodily heirs’ means heirs of the body, issue who can inherit, or children only . . .”
      Black’s Law Dictionary, Revised Fourth Edition (1968) defines “bodily heirs”: “Heirs begotten or borne by the person referred to; lineal descendants progeny or issue, including children, grandchildren and other lineal descendants.” See also Page on Wills, Bowe-Parker Revision, Vol. 4, § 34.10, p. 425; 95 C.J.S. Wills § 679, p. 1004.

      . See Spurr v. Spurr, 285 Mo. 163, 226 S.W. 35, 40[7] (1920).

      . The original and amended petitions also pleaded the contents of a prior will. Under that instrument, or in the event of Alta’s intestacy, the share of each of Hiram’s children would have been less than such share under the attacked will.

      . In their appellate brief plaintiffs make this statement: “The suit was filed April 7, 1967, nine days before the expiration of the nine months required by § 473.083.” A similar statement is in their reply brief.

      . Three were served on December 8, 1972, by the sheriff of Howell County, one was served on December 29, 1972, by the sheriff of Greene County, one was served on December 30, 1972, by the sheriff of Cole County, one was served on January 8, 1973, by the sheriff of Benton County, and one was served on January 22, 1973, by the sheriff of Dent County; after a non-est return by the sheriff of Howell County with regard to the eighth child, service by mail was attempted and he signed the return receipt dated January 3, 1972 (sic). The ninth child apparently was dead.

      . “The sole and only issue in this will contest was devisavit vel non.” Brug v. Manufacturers Bank and Trust Co., 461 S.W.2d 269, 273 (Mo. banc 1970).

      . “Section 473.083 is not a statute of limitations in the usual sense but is a special statute of limitations applicable solely to the contest of wills. It is exclusive of the other Statute of Limitations under Section 516.-300, RSMo 1969, V.A.M.S., and fraud does not toll the running of the time limit prescribed in Section 473.083 under Section 516.280, RSMo 1969, V.A.M.S., of the General Statutes of Limitations. Section 473.-083 is more in the nature of a statute granting jurisdiction than that of a statute of limitations.” Haas v. Haas, 504 S.W.2d 44, 46 (Mo.1973).
      Section 473.083(1) was involved in Haas.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. James Forrest HALLIBURTON, Appellant.
    No. 9940.
    Missouri Court of Appeals, Springfield District.
    Dec. 24, 1975.

      John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Michael Baker, Springfield, for appellant.
   TITUS, Judge.

With jury waived, the court convicted defendant of selling marihuana as charged in a two-count indictment and sentenced him to five years’ imprisonment on each count with the sentences to run concurrently.

The first point in defendant’s brief, i. e., “The grand jury indictment was so vague and indefinite that it did not afford the defendant with adequate information to prepare a defense,” is wholly inadequate to preserve anything for appellate review. Contrary to Rule 84.04(d), applicable in criminal cases per Rule 28.18 [State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971)], the point does not advise wherein and why defendant claims the indictment was vague and indefinite. State v. Tartenaar, 371 S.W.2d 192, 194[1] (Mo.1963). Nonetheless, Rule 28.02 requires us to determine the sufficiency of the indictment albeit the point is not properly preserved in the brief. State v. White, 431 S.W.2d 182, 186[4] (Mo.1968).

By “a plain, concise and definite written statement of the essential facts constituting the offense charged” (Rule 34.-01), each count of the indictment charged that defendant “on or about the 7th day of July, 1973, A.D., in the said County of Greene and State of Missouri did then and there wilfully, unlawfully and feloniously sell a controlled substance, to-wit: Marihuana to [Count I] D. W. Lipp [and Count II] Bill McConnell . . . .” §§ 195.020 and 195.017-2(4)(j). Defendant, by the language of the indictment, was advised of the constituent facts necessary to acquaint him with the particular charges. Both counts followed the language of the statute and were sufficient. State v. Stavricos, 506 S.W.2d 51, 55[2] (Mo.App.1974).

As a pure gratuity, because we are not required to resort to the argument portion of the brief to ascertain the whereins and whys of abstract points [State v. Dennison, 428 S.W.2d 573, 579[8] (Mo.1968)], the kernel of defendant’s argument is that the indictment was vague and indefinite because it “does not mention where or the time of the alleged sale.” Alleging the place of the crime as “in the [said] County of Greene and State of Missouri” has always been held sufficient [Tucker v. State, 481 S.W.2d 10, 14[3] (Mo.1972)], and it was not required that the indictment specify the hour of the sales. United States v. Crockett, 421 F.2d 649, 650[1] (8th Cir. 1970).

Points II and III in defendant’s brief claim trial court error in not excluding and striking the identification testimony of Bill McConnell and in considering like testimony of D. W. Lipp. The court sustained defendant’s “Motion for Pretrial Lineup Identification.” Such a lineup was conducted by the court. McConnell and Lipp (the alleged buyers of the marihuana) viewed the lineup separately, identified defendant, and testified under oath concerning the basis for their identifications. At the conclusion of this proceeding defendant’s counsel moved, ore tenus, for suppression of McConnell’s identification testimony. Neither then nor at any other time did counsel move for suppression of like testimony by Lipp. When the case proceeded to trial, McConnell and Lipp testified without a single objection by defendant as to their identification of defendant as the seller of the controlled substance and were extensively cross-examined by defense counsel on the subject. Under the circumstances the question of the propriety of the identification testimony is not before us. The utter dearth of objections to this evidence abolished all hope of preservation of the question for appellate review. State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970); State v. Ward, 518 S.W.2d 333, 334[3] (Mo.App.1975).

Defendant’s last two points on appeal are that the court erred in overruling his motion for judgment of acquittal and his motion for judgment of acquittal n. o. v. because “the evidence presented by the State was confusing and conflicting so as to cause the State to fail in its burden of proof,” and because “there was not sufficient, clear, competent, and convincing evidence that Defendant-Appellant was the person who committed the crime and the Court’s verdict went against the weight of the evidence.” Neither of these points present anything for consideration on appeal for several reasons. No citation of authority appears as to Point IV as required by Rule 84.04(d); the only authority cited to Point V is 22 C.J.S. Criminal Law § 401(4) and its applicability to the point wholly escapes us. Points presented naked of any citation of authority or which are devoid of applicable citations, are deemed to have been waived or abandoned. State v. Drake, 514 S.W.2d 653, 657[9] (Mo.App.1974); Adams v. White, 488 S.W.2d 289, 294[12] (Mo.App.1972). Moreover, in further contravention of Rule 84.04(d), the points do not tell wherein and why the evidence was confusing and conflicting, or wherein and why the state failed in its burden of proof, or wherein and why there was not sufficient, competent and convincing evidence, or wherein and why the verdict went against the weight of the evidence. State v. Watson, 511 S.W.2d 890, 893[5] (Mo.App.1974). Also, a point merely stating that the verdict went against the weight of the evidence preserves nothing for review. State v. Koen, 468 S.W.2d 625, 629[3] (Mo.1971).

While the points presented have not preserved anything for appellate review, we are, nevertheless, required to examine the transcript on appeal in the areas covered by Rule 28.02 and to determine whether plain error may have accrued affecting substantial rights resulting in manifest injustice or miscarriage of justice. Rule 27.20(c). We have examined the indictment, supra, and have not found it wanting. We have conned the transcript as attested by foregoing remarks and find no miscarriage of justice and that no plain error was committed. The verdict, judgment and sentence were proper.

The judgment is affirmed.

All concur.

      . References to rules and statutes are to Missouri Supreme Court Rules of Criminal and Civil Procedure, V.A.M.R., and to RSMo 1969, V.A.M.S.


author: HARBISON, Justice.

text:
    Lawrence JOHNSON, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Dec. 29, 1975.
    Walker Gwinn, Asst. Public Defender, Memphis, for petitioner; Edward G. Thompson, Memphis, of counsel.
    Weldon B. White, Jr., Asst. Atty. Gen., Nashville, for respondent; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

Petitioner, Lawrence Johnson, was indicted for the offense of robbery with a deadly weapon in violation of T.C.A. § 39-3901. He was found guilty of the offense of robbery, and sentenced to serve from five to ten years in the penitentiary.

At the trial, counsel for petitioner requested jury instructions on the offense of larceny from the person, as defined in T.C.A. § 39 — 4206, and on the offense of petit larceny and the punishment therefor as defined in T.C.A. §§ 39-4203, 4204.

The trial judge gave instructions to the jury on the offenses of robbery with a deadly weapon, robbery, and grand larceny. He refused to include in his charge instructions on larceny from the person and petit larceny.

The Court of Criminal Appeals affirmed the conviction and held that the failure of the trial judge to give the requested instructions was not prejudicial error.

The Court of Criminal Appeals held that there was ample evidence to support the verdict of the jury as to the offense for which petitioner was convicted, and after reviewing the record we are in agreement with this conclusion.

There was evidence introduced at the trial, however, primarily through confessions admittedly given by the petitioner, which would have supported a conviction for the offense of larceny from the person, or of petit larceny. The incident out of which the prosecution arose involved the taking of a purse from a schoolteacher by petitioner. It was the contention of the prosecuting witness that the purse was not in her physical possession, but was on the back seat of her automobile. She also contended that the purse was taken from her at knifepoint, and that she was placed in fear of her life. On the other hand, the statements made by the petitioner were to the effect that he snatched the purse from the hands of the prosecuting witness, and he denied that there was any sort of knife or other weapon employed. The prosecutrix placed the value of the purse and its contents in excess of one hundred dollars; the statements of the petitioner at less than that amount.

T.C.A. § 40-2518 requires the trial judge in a criminal case to instruct the jury as to the law on each criminal offense included in the indictment, whether requested to do so or not.

This Court has held that there is no requirement to include such instructions when no evidence at all is offered as to lesser included offenses. Reynolds v. State, 210 Tenn. 310, 358 S.W.2d 320 (1962). In that case, which also involved the theft of a pocketbook, the Court found no credible proof in the record that the sum of money taken was less than one hundred dollars, and accordingly held that there was no necessity for the trial court to include a charge on petit larceny. See also Baker v. State, 203 Tenn. 574, 315 S.W.2d 5 (1958); Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563 (1954).

Although the foregoing rules are well settled, this Court has also stated:

“But where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser included offenses, it is the mandatory duty of the Trial Judge to charge all the law as to each of such offenses, and a failure to do so requires a reversal and a new trial.” Strader v. State, 210 Tenn. 669, 679, 362 S.W.2d 224, 228 (1962).

In the present case, the offense of petit larceny was clearly a lesser included offense and should have been charged, because there was evidence of a credible nature in the confessions of the defendant, showing a value of less than one hundred dollars. There was also evidence in his confessions which, if believed by the jury, would have permitted a conviction on the charge of larceny from the person. Since a correct and accurate request for instructions on this offense was tendered, we hold that the trial judge was in error in refusing to give it.

The test as to whether instructions on lesser included offenses or special requests should be given is not by any means the same test as that in determining whether evidence is sufficient to sustain a conviction. The cases are clear that if there is any evidence which reasonable minds could accept as to any such offenses, the accused is entitled to appropriate instructions.

In the present case the Court of Appeals stated that “The convincing and credible proof . . . ” was to the effect that the value of the property taken was more than one hundred dollars. We have already pointed out that there was contrary credible evidence as to this offense. As to the offense of larceny from the person, the Court of Appeals pointed out that the jury did not convict the defendant of this offense, and did not find that his conduct met the statutory definition of the crime. The test, however, is not what the jury found, but whether there was any evidence in the record from which the jury could have concluded that those statutory elements were present. The text of the confession given by the defendant was such that, if believed, a conviction for this offense could have been sustained.

We sustain the assignments of error in the petition for certiorari addressed to the failure of the trial judge to give appropriate instructions. We have considered the remaining assignments, but we are of the opinion that all of them were properly considered and overruled by the Court of Criminal Appeals.

The judgment of the Court of Criminal Appeals and of the trial court are reversed, and the cause is remanded for a new trial.

FONES, C. J., COOPER and HENRY, JJ., and DYER, Special Justice, concur.


author: HENRY, Justice.

text:
    Leonard Jasper YOUNG, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Dec. 30, 1975.
    Walker Gwinn, C. L. Lenow, Asst. Public Defenders, Memphis, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Lloyd A. Rhodes, Dist. Atty. Gen., Joe Patterson, Asst. Dist. Atty. Gen., Memphis, for respondent.
   OPINION

HENRY, Justice.

We address the narrow and limited issue of whether cunnilingus is a crime against nature as defined and prohibited by Section 39-707 T.C.A.

Petitioner was convicted under an indictment charging that he committed a crime against nature “by placing his mouth against the genital organs” of a female. The proof showed the female to have been fourteen years of age and that the act was committed forcibly, violently and against her will.

The Court of Criminal Appeals affirmed the judgment of the trial court, rejecting petitioner’s insistence that the judgment could not stand since cunnilingus was not a crime at the common law and is not specified as a forbidden act under § 39-707 T.C.A.

I.

Notwithstanding the fact that this statute was initially adopted in 1828, the first reported case dealing with its meaning and effect was Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340 (1955). There the indictment charged penetration per os and the defense was that this did not constitute the crime of sodomy, and was not within the contemplation of the statute. The Supreme Court recognized and rejected the “narrow restrictive definition of the offense” and held that fellatio was an offense against the statute and a crime against nature.

Four years after Fisher, this Court decided Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959), and held again that fellatio was within the scope of the statute. The Court’s opinion, as in Fisher, was substantially based upon State v. Cyr, 135 Me. 513, 198 A. 743 (1938), wherein the Maine Court said, in part:

The generality of the prohibition brings all unnatural copulation with mankind or a beast, including sodomy, within its scope.

Neither Fisher (1955) nor Sherrill (1959) cited State v. Townsend, 145 Me. 384, 71 A.2d 517, decided by the Maine Supreme Court in 1950, and holding cunnilingus to be a crime against nature.

In Davis v. State, 1 Tenn.Cr.App. 345, 442 S.W.2d 283 (1969) the court upheld a conviction of fellatio, however this ease essentially involved corroboration.

Next in chronological sequence we note Polk v. Ellington, 309 F.Supp. 1349 (W.D.Tenn.1970), which, to our knowledge, represents the first attack made on the sodomy statute based upon its being vague and overbroad. The Court invoked the doctrine of abstention but did hint that the statute “may be unconstitutionally overbroad.”

In 1973 our courts, for the first time, considered the constitutionality of the statute, holding in Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1973), that it was not unconstitutionally vague. The Court, however, was dealing with an act of conventional sodomy. The Court said, in part:

. . . The expression is a euphemism for the particular acts that constitute the offense of sodomy at common law. Therefore it is necessary to resort to the common law for a definition of the crime and a description of the acts. In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast. In its broader sense it is the carnal copulation by human beings with each other against nature or with a beast in which sense it includes all acts of unnatural copulation. Our courts probably accept the broader meaning since they have held that the proscribed acts may be per os as well as per anus. (Citations omitted). 489 S.W.2d at 543.

The Court of Criminal Appeals was unduly cautious in its assertion that “(o)ur courts probably accept the broader meaning.” Our Court in Fisher, supra, and Sherrill, supra, had clearly accepted the broader meaning.

The Court of Criminal Appeals decided Stephens, supra, on September 28, 1972, and the Supreme Court denied certiorari in January 1973. In October of that year the Court released its opinion in Locke v. State, 501 S.W.2d 826 (Tenn.Cr.App.1973). For the first time cunnilingus was held to be a crime against nature, within the meaning of our statute. The Court relied upon Fisher, Stephens and Sherrill, supra. Significantly the Court concluded its opinion by saying:

We express no opinion as to the constitutionality of the application of this statute to the private acts of married couples, a question inapplicable to the facts of this case, and not briefed herein. Nor does the case sub judice involve the application of the statute to consenting adults. 501 S.W.2d at 828.

The constitutionality of the statute in a case involving sodomy, was again upheld in Cook v. State, 506 S.W.2d 955 (Tenn.Cr.App.1974).

Then in Lundy v. State, 521 S.W.2d 591 (Tenn.Cr.App.1975), the Court held that forcible cunnilingus was a proscribed crime against nature.

In the meantime Locke was working its way through the federal system. First, he filed his petition for the writ of habeas corpus in the United States District Court for the Eastern District of Tennessee. That court denied the petition, holding that when considered in the light of previous interpretations by the courts of Tennessee, § 39-707 was “not constitutionally vague nor impermissibly overbroad.”

Petitioner appealed to the Court of Appeals for the Sixth Circuit and that court held that Tennessee’s “crime against nature” statute, even when aided by decisional law, did not give fair notice that the law applied to an act of cunnilingus. See Locke v. Rose, 514 F.2d 570 (6th Cir. 1975). The court took the position that the statute did not put men of common intelligence “on notice of the court’s cunnilingus interpretation” and did not preclude the necessity of their guessing at its meaning, citing Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

The State then petitioned the Supreme Court of the United States for writ of certiorari. The writ was granted and a per curiam opinion was released on 17 November 1975. See Rose v. Locke,-U.S. -, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). The following language from the Court’s opinion is significant:

It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); see Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conform their conduct so as to avoid that which is forbidden.

We digress to quote the following language from Wainwright, supra, in view of the Court’s reliance thereon:

The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation “we must take'the statute as though it read precisely as the highest court of the State has interpreted . ” claims of impermissible vagueness must be judged in that light. 414 U.S. at 22, 23, 94 S.Ct. at 192.

After noting the holdings in Fisher and Sherrill, supra, the Court, in Rose v. Locke, said:

Thus, we think that the Tennessee Supreme Court had given sufficiently clear notice that § 39-707 would receive the broader of two plausible interpretations and would be applied to acts such as those committed here when such a case arose.

II.

We hold that § 39-707 T.C.A. embraces the crime of cunnilingus.

Tennessee’s posture is firmly established by ample judicial precedent. This is now buttressed by a holding of the Supreme Court of the United States that the statute is not impermissibly vague. While we are not bound by this holding, except to the extent of federal constitutional law, we recognize that there is substantial merit in the stability and consistency of the law. With these considerations in mind, we hold that the statute is not impermissibly vague under Article 1, Section 8 of the Constitution of Tennessee.

We do not reach the general question of the constitutionality of this statute in the face of a challenge based upon its being overbroad. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Specifically we make no judgment with respect to the constitutionality of the application of this statute to private consensual acts engaged in by adults, nor such practices pursued in private and within the' framework of the marital relationship. In those instances other controlling considerations are involved.

It would not be amiss for the legislature to take a new and fresh look at Tennessee’s 150-year old “crime against nature” statute. Such a re-evaluation, in the light of modern mores and morality, would be in the public interest and would be of substantial assistance in the administration of criminal justice.

Affirmed.

FONES, C. J., COOPER and HARBI-SON, JJ., and DYER, Special Justice, concur.

      . Section 39-707 T.C.A. provides:
      Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary . . .