author: FINCH, Judge. SEILER, Chief Justice

text:
    STATE of Missouri, Respondent, v. Ronald Eugene BRASEL, Appellant.
    No. 59243.
    Supreme Court of Missouri, En Banc.
    June 14, 1976.
    Rehearing Denied July 12, 1976.

      David C. Godfrey, Clayton, for appellant.
    John C. Danforth, Atty. Gen., by Philip M. Koppe, Asst. Atty. Gen., for respondent.
   FINCH, Judge.

This is an appeal from a conviction on a two-count indictment for unlawful possession of controlled substances in violation of § 195.017. Defendant was sentenced to concurrent four year terms on each count, but sentence was suspended and defendant was placed on probation for five years. Defendant appealed to the Missouri Court of Appeals, St. Louis District, which affirmed the conviction on Count I, but reversed and remanded on Count II. After application to transfer by both defendant and the State, we ordered the case transferred and now decide it as though here on direct appeal. Art. V, § 10, Mo.Const.

Disposition of this case depends on whether the arrest of defendant without a warrant was based on probable cause and whether certain searches and seizures incident to that arrest were lawful. We conclude that both of these questions are to be answered in the affirmative. Hence, we affirm the judgment.

On April 10,1972, defendant registered at the Inn America Motel in St. Louis County as a chemist named Ronald Bradley from Kansas City. He was assigned room 233 for which he paid one week in advance. Subsequently, he paid for a second week which ran to April 25, 1972.

On Saturday, April 22 and again on Sunday, April 23, the maid assigned to clean a block of rooms which included room 233 noticed a “Do Not Disturb” sign on the door leading to that room. On each day it remained on the door into the afternoon. On Saturday, the maid did nothing, but after it remained until mid-afternoon on Sunday, April 23, she reported this fact to Mrs. Sandler, her supervisor. Mrs. Sandler then called room 233. Someone answered the telephone and indicated he did not want the room made up. She then did nothing further.

Again, on Monday the maid noticed a “Do Not Disturb” sign on the door. About mid-afternoon, she knocked on the door and when she received no response, she used her key and entered the room. She observed bottles of what appeared to be medicines on the dresser and sacks of such bottles on the floor. She stated that the bed was all torn up. She went next door and called Mrs. Sandler to report what she had seen. Mrs. Sandler then came and opened the door and both she and the maid entered room 233. After observing the room and its contents, Mrs. Sandler reported the matter to Mr. Armstrong, the motel manager.

Mr. Armstrong first checked the registration for the room. He then called the room but received no response. He and Mrs. Sandler then went to room 233, unlocked the door and entered. Armstrong remained in the room ten or fifteen minutes during which time he examined the grocery-type paper sacks which contained large quantities of drugs as well as the containers on the dresser. He observed that these bottles contained pills and capsules and many had federal warrants on them.

After closing and locking the door, Armstrong returned to his office and called the county police. He told the officers that there was a large assortment of drugs in the room in question. Shortly thereafter, five officers from the St. Louis County drug squad came to Armstrong’s office. He showed them defendant’s registration card, which showed the name Ronald Bradley and gave the license number of his automobile. Armstrong stated that he wanted to show them what he had observed and he then took the officers to room 233. Armstrong unlocked the door and he, followed by the officers, entered. The officers then observed first hand the bottles of pills and capsules on the dresser and in the paper sacks which Armstrong had reported to them. Federal warrants were attached to many of the bottles and one officer estimated that there could be 300,000 pills and capsules. The officers then contacted police headquarters for a check on the license number shown on defendant’s registration card and thereby learned that the car was registered to Ronald Brasel of St. Louis County, not Ronald Bradley of Kansas City.

After their examination of room 233 and its contents, the officers arranged with Armstrong to occupy the adjoining room for the purpose of a stakeout of room 233. They remained there until about 10 o’clock that night when defendant returned to the motel. He was observed parking his automobile and then coming to his room carrying an attache case and some clothes. Shortly after the officers heard defendant enter room 233 and close the door, Officer Zinselmeier knocked on the door of room 233. When defendant opened the door, Zin-selmeier displayed his police badge and asked if he might come in. Defendant, according to the officer, indicated that he could enter and opened the door wider for that purpose. Zinselmeier then entered, as did Officer Reifschneider who had been standing by Zinselmeier. The other officers also had come out of the adjoining room, but it is not clear from the transcript whether they were standing at the door when it was opened by defendant Brasel. In any event they entered defendant’s room shortly after Zinselmeier and Reifschneider entered.

Immediately on entering, Zinselmeier asked defendant for some identification. He produced his driver’s license and stated that he was Ronald Brasel. Officer Zinsel-meier then placed him under arrest on suspicion of unlawful possession of controlled substances and frisked him. When the officer patted defendant’s pants pocket, he felt a large bulge. He reached into the pocket and discovered a quantity of pills. The attache case which defendant had carried as he returned to the room was on a chair about four feet from defendant. It was opened promptly and in that search other pills were found.

Count I of the information on which defendant was prosecuted was based on possession of the pills found in defendant’s trouser pocket. Count II was based on the pills found in the attache case. Defendant was not prosecuted for the possession of the large quantity of pills which were in room 233 and which had been observed there by the motel personnel and later by the officers.

Defendant filed a motion to suppress the evidence obtained by the search of the defendant’s person and his attache case. The court overruled that motion and admitted in evidence the pills found in defendant’s trouser pocket and the pills found in his attache ease. Defendant complains with reference thereto on appeal. Since these searches were incident to an arrest and not pursuant to a search warrant, we must determine first whether the arrest of defendant by Officer Zinselmeier after he entered the room was a lawful arrest, that is, whether it was made with probable cause.

Probable cause was defined in Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) in these words:

“ * * * Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.”

A further explanation of what is necessary for there to be probable cause was given in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949):

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.”

A recent decision by this court involving the issue of probable cause was State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975), wherein the court reviewed the law on probable cause and then considered the validity of a warrantless arrest, as well as the admissibility of evidence seized incident to that arrest. Responding to anonymous tips giving officers the specific location of suspects and specific information indicating that the suspects possessed controlled substances, the officers approached the front door of the suspects’ apartment, announced that they were police officers, arrested the occupants for possession of controlled substances and searched the area which the informer had stated would house the drugs. In considering the legality of the arrest, the court stated, 522 S.W.2d at 287,

“The evidence to be admissible in this case must be the ‘product of a search incident to a lawful arrest, since 'the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists “where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.’’ Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, [555], 39 A.L.R. 790 (1925).’ Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623,1630, 10 L.Ed.2d 726 (1963).
“Whether there was probable cause to arrest the appellant along with others in the apartment depends on the information in the officers’possession prior to the arrest. Of course, all the information in the possession of the officers and all reasonable inferences therefrom are pertinent to determine probable cause. Whether there is justification for probable cause to arrest without warrant must be determined by practical considerations of everyday life on which reasonable men act and is not to be determined by hindsight by legal technicians. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The determination of probable cause depends upon the particular facts and circumstances of the individual case and no ready ‘litmus paper test’ can be applied. Probable cause may be based on hearsay. There is a broad gulf between what is required to prove guilt and the requirement of probable cause. We deal here with controlled substances. In such cases officers may well have to depend on informers, special employees and on their own special experience. United States v. Kancso, 252 F.2d 220 (2nd Cir. 1958).” (Emphasis supplied.)

In deciding whether the officers had probable cause in this case for arresting defendant, we conclude that they could not utilize and rely upon information obtained by their entry into and search of room 233 during the afternoon of April 24. They had no search warrant and they had no consent from defendant to enter and search. The motel personnel could not give such permission. Cases so holding include Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1963), in which the court refused to uphold a police search of a hotel room based upon the hotel clerk’s consent to the entry, stating at 489, 84 S.Ct. at 893:

“It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent.”

To the same effect see United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

However, the fact that the officers made an unauthorized entry and search of room 233 does not make the subsequent arrest of defendant illegal if the officers had sufficient information, received independently of the illegal search, to provide probable cause for the arrest. For the reasons subsequently discussed, we conclude that the officers did receive information from the motel personnel which, without reliance on their own search of room 233, provided probable cause for arrest of defendant.

First, this information, received by the officers from the motel people, came from a reliable informant. Armstrong occupied a position of considerable responsibility. He was the manager of a substantial business. Some of his employees discovered and reported to him large quantities of drugs in one of the motel rooms occupied by a guest. He did what a manager would be expected to do, and notified the police of those facts. The police came to his office and talked to him and were shown the room registration filled out by the occupant of the room in question. Later that afternoon, the officers had an opportunity to verify what the motel personnel had observed when they talked to Mrs. Sandler, the head housekeeper, who also had been in the room and observed its contents.

In State v. Perry, 499 S.W.2d 473 (Mo.1973), this court considered the reliability of an informant who called the police station and, although not giving his name, identified himself as a Bi-State bus driver. He told the answering officer that he had observed the occupants of a car flourishing a weapon, describing and giving the license number of the car. In holding that the informant was reliable, the court said, 499 S.W.2d at 475, 476:

“In the absence of exceptional circumstances not here present a citizen-informant who states that he has witnessed a crime may reasonably be deemed by an arresting officer to be reliable, McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir. 1969), cert. den. 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773; Smith v. Swenson, 328 F.Supp. 747 (W.D.Mo.1971), although his reliability has not theretofore been proved or tested. State v. Whorton, 487 S.W.2d 865 (Mo.1972). The informant in this case was no mere tipster suggesting to police the possibility that an offense may have been committed in the past or might be committed in the future. His report was not based upon suspicion, underworld rumors or hearsay. Nor was he giving mere conclusions with respect to the commission of offense. This informant gave a straightforward eyewitness account of what had happened, of his own personal knowledge. He gave specific information identifying the automobile, in-eluding the license number. ‘There could only be one car in existence that could fit that precise description.’ Conley v. Beto, 328 F.Supp. 49, 53 (S.D.Tex.1971). His information led the police directly to appellant. United States ex rel. Cardaio v. Casseles, 446 F.2d 632, 636-637[3] (2nd Cir. 1971). While the informant’s name was not made known his occupation of bus driver was given.” (Emphasis supplied.)

Applying the tests utilized in Perry, it is evident that Armstrong was a reliable informant.

Second, the protection of the fourth amendment against unreasonable search and seizure does not apply to actions of private individuals not acting pursuant to a request by the police. In this ease there was no contention that the police had anything to do with the entry and search of room 233 by motel personnel. Hence, the information given by Armstrong to the police did not violate defendant’s fourth amendment rights, even though such entry and search were without the consent of the occupant. Therefore, the information derived therefrom and passed on to the police could be relied upon by the police to establish probable cause. In Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921), the Supreme Court enunciated this principle, stating,

“The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.”

In Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971), the court concluded that the fourth amendment exclusionary rule was only applicable to prevent police misconduct and stated,

“But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.”

Other cases which hold that the fourth amendment protections do not apply to private action are Kaufman v. United States, 453 F.2d 798 (8th Cir. 1971); United States v. McGuire, 381 F.2d 306 (2nd Cir. 1967); United States v. Burton, 341 F.Supp. 302 (W.D.Mo.1972); State v. Stark, 502 S.W.2d 261 (Mo.1973); State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878 (1942).

We conclude that the information relayed by Armstrong and that which the officers acquired by checking with police headquarters was sufficient to establish probable cause to arrest. The officers had been told by Armstrong, the manager, that he had observed large quantities of drugs in one of his motel rooms, a place where one is not reasonably expected to be in possession of large quantities of drugs. What he reported caused five drug squad officers to come at once to Armstrong’s office. They talked to Armstrong and were shown defendant’s registration card. They subsequently learned by a check at their headquarters that the automobile license listed by the occupant was registered to Ronald Brasel of St. Louis County, not Ronald Bradley of Kansas City, the name defendant had used in registering. Later that afternoon, as previously noted, the officers also talked to Mrs. Sandler, the housekeeper.

Unfortunately, no one asked Armstrong or the officers to recite the full details of what he told them when he telephoned or when he talked to them shortly thereafter when they came to his office. Whether, in addition to stating that he had observed large quantities of drugs in a motel room, he detailed the fact that there were paper sacks filled with bottles of drugs, as well as many bottles on the dresser, and whether he told them that many bore federal warrants, indicating controlled substances, was not asked. The fact that five officers responded to the call would indicate that substantial information as to what Armstrong had observed with reference to the drugs was given. We conclude and hold that from the above sources, without considering any information the officers obtained by their mid-afternoon search of room 233, Officer Zinselmeier had sufficient information when he arrested defendant to warrant a prudent man, based on “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” to arrest defendant on suspicion of unlawful possession of controlled substances.

This being true, were the searches of defendant’s person and attache case permissible searches incident to the lawful arrest of defendant by Officer Zinselmeier?

The right of an officer to conduct a full search of the person incident to a lawful custodial arrest was discussed at length and clearly delineated in United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), in this language:

“ * * * The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”

Accordingly, we hold that the search of defendant’s person by Officer Zinselmeier immediately after he was placed under arrest was lawful and the trial court properly overruled defendant’s motion to suppress the 162 seconal barbituate capsules.

In Chimel v. California, 395 U.S. 752, 89 5.Ct. 2034, 23 L.Ed.2d 685 (1969), the court recognized that in addition to the right of an officer to search the person of one placed under arrest, the officer may also search for weapons and' evidence of the crime in the area referred to as being within the arrested person’s immediate control. This right was recognized in this language at p. 762, 89 S.Ct. at p. 2040:

“ * * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

The evidence indicates that the attache case was on a chair perhaps four feet from the defendant. It was not locked. It did have a catch but it could be released by merely pushing a button. Officer Zinsel-meier testified that he did not know what was in the case but that he searched it, primarily looking for weapons, but also to ascertain whether it contained drugs. There were other officers in the room at the time, but no evidence was introduced that they were so placed that it was impossible for defendant to reach and enter the attache case. At some point, defendant was handcuffed but the evidence does not show that this had occurred prior to search of the attache case. On the record before us, we cannot conclude that defendant could not, by a quick movement, reach the attache case and obtain a weapon concealed therein or destroy evidence contained in the case. Accordingly, we hold that the search of the attache case did fall within the limits prescribed by Chimel and the amphetamine capsules obtained in said search were admissible in evidence in support of Count II. Judgment affirmed.

MORGAN, HOLMAN, BARDGETT, HENLEY, and DONNELLY, JJ., concur.

SEILER, C. J., concurs in part and dissents in part'in separate opinion filed.

SEILER, Chief Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction on Count I but dissent as to Count II. The state failed to carry its burden of proof as to valid grounds for making a warrant-less search of the attache case, in which were found the drugs on which the conviction under Count II rests.

Who has the burden of proof to show, in the words of the leading case on the subject, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) that the search beyond the person of the arrestee is in an area “within his immediate control”? It is the prosecution, because as that case and many others hold, the burden is on those seeking an exemption from the requirement of a search warrant to show the need for it. “The exceptions are ‘jealously and carefully drawn,’ . . . ‘[T]he burden is on those seeking the exemption to show the need for it.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

It follows that when the search is sought to be justified because it is of an area within the immediate control of the person arrested, the burden is on the prosecution to show that such is the fact if it is to prevail on the motion to suppress. See, for example, United States v. Marotta, 326 F.Supp. 377, 384 (S.D.N.Y.1971), affirmed without opinion, 456 F.2d 1336 (2d Cir. 1972), where the court sustained a motion to suppress over the government’s contention that the seizure was lawful under Chimel, supra, as being in the area within the immediate control of the person arrested, “. the Government not having shown . . . that the search and seizure was within the permissible scope of searches and seizures incident to lawful arrests . . . ” (emphasis supplied). In Scott v. State, 7 Md.App. 505, 256 A.2d 384, 389 (1969), the court says: “We think that Chimel requires that the State show that the search was conducted and items were seized in an area ‘within the reach’ of the arrestee in this concept (emphasis supplied). See, also, United States v. Jones, 475 F.2d 723, 727 (5th Cir. 1973), stating: “Because the search here must now be characterized as warrantless, the government must establish that it is within one of the exceptions to the warrant requirement” (emphasis supplied). The case dealt with the search of a suitcase about a foot and a half away from the head of the bed on which defendant was asleep when arrested.

See, also, State v. Sutton, 454 S.W.2d 481, 490 (Mo. banc 1970) (Finch, J., dissenting), “. . . the burden of proof to establish that some exception is applicable rests on the government . . . ” (emphasis supplied).

In the case before us, the attache case was closed and at least four feet distant from the defendant. The manpower arrayed against defendant was overpowering. One officer, Zinselmeier, had placed defendant under arrest and had searched his person, while defendant was leaning against the wall, facing it, hands up. Another officer, Reifschneider, was in the room, having entered with Zinselmeier. Three other officers were present in the room, but “no evidence was introduced that they were so placed that it was impossible for defendant to reach and enter the attache case”, although Zinselmeier was close enough to the attache case so that he opened it “promptly”, which included undoing the clasp. The defendant was handcuffed, but the evidence does not show when with relation to the opening of the attache case. The principal opinion asserts that “On the record before us, we cannot conclude that defendant could not, by a quick movement, reach the attache case and obtain a weapon concealed therein or destroy evidence contained in the case.” It seems to me this places the burden on the defendant to show that he could not have acted to accomplish the above, whereas the burden to show facts justifying the exemption is on the state, which failed to carry it', although the state had five police officers who should have been able to establish the facts if they in truth existed in their favor.

In my opinion, it is clear that under the circumstances the attache case was not within the immediate control of the defendant. But if I am mistaken, then the most that can be said on the other side of the coin on the evidence before us is that it is unclear and speculative whether the attache case was in the immediate control of the defendant in the sense that he could have gotten to and opened it in time to seize a weapon or destroy incriminating evidence therein. This is not sufficient to carry the prosecution’s heavy burden of proof. In fact, if the situation were such that there was a good chance defendant could have gotten to the attache case and made use of its contents, the action of Zin-selmeier in opening it “promptly” would have enhanced the opportunity. It would have helped defendant do what the police did not want him to do. I do not believe the police officer would have made any such foolish move, had there been any possibility defendant could have taken advantage of it, which further leads me to believe the prosecution had no evidence available which would support the exemption by which they would be entitled to search the attache case.

The holding of the principal opinion is opposed to the basic proposition established years ago that constitutional provisions for the security of person and property should be liberally construed. Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Officer Zinselmeier no doubt was using his best judgment that he should search the attache case, but that does not mean that his judgment is not properly subject to constitutional scrutiny or that he has the right to abrogate the Fourth Amendment.

In my opinion, the search of the attache case was illegal on the record before us and the conviction on Count II should be reversed and I therefore respectfully dissent as to Count II.

      . All statutory references are to RSMo 1969 unless indicated otherwise.

      . There were 162 red colored capsules later determined to be seconal barbituates.

      . There were 31 amphetamine capsules.

      . In this connection see also discussion by court in State v. Cox, 294 Minn. 252, 200 N.W.2d 305, 306-7 (1972), including footnote 1 thereto and the cases cited therein.

      . Brinegar v. United States, 338 U.S. at 175, 69 S.Ct. at 1310.

      . Cases in the federal and state courts considering the propriety under Chimel of searches of the area alleged to be within the immediate control of the person arrested are legion. We see no need to engage in an extended analysis and review of those cases. Support for the conclusion we reach can be found in the following: State v. Henderson, 510 S.W.2d 813, 819 (Mo.App.1974); United States v. Mason, 523 F.2d 1122 (D.C.Cir.1975); United States v. Jones, 475 F.2d 723 (5th Cir. 1973); United States v. Harrison, 461 F.2d 1127 (5th Cir. 1972); United States v. Simpson, 330 A.2d 756 (D.C.1975); State v. Cox, 294 Minn. 252, 200 N.W.2d 305 (1972); State v. Fulford, 290 Minn. 236, 187 N.W.2d 270 (1971); State v. Mayer, 129 Vt. 564, 283 A.2d 863 (1971); People v. King, 5 Cal.3d 458, 96 Cal.Rptr. 464, 487 P.2d 1032 (In Bank 1971); Simberg v. State, 288 Minn. 175, 179 N.W.2d 141 (1970); People v. Doss, 44 Ill.2d 541, 256 N.E.2d 753 (1970).

      . Zinselmeier and the others had seen defendant enter the motel room carrying the attache case and Zinselmeier testified it was his policy as incident to any arrest for him to search “whatever possessions a person has with him.” With this as his guideline, it is not a strained conclusion that once Zinselmeier had defendant under arrest, he would promptly have searched the attache case no matter where it was in the room.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Wayne R. STARR, Jr., Respondent.
    No. 58767.
    Supreme Court of Missouri, En Banc.
    June 14, 1976.
    Rehearing Denied July 12, 1976.

      Thomas A. Sweeney, Kansas City, for informants.
    Thomas M. Sullivan, Downey, Sullivan & FitzGerald, Kansas City, for respondent.
   PER CURIAM.

The Circuit Bar Committee of the Sixteenth Judicial Circuit (informant) initiated this disciplinary proceeding by filing an information in this court wherein Wayne R. Starr, Jr. (respondent), a duly licensed attorney in this state, was charged with professional misconduct. Informant alleged that respondent violated Rule 4 (Code of Professional Responsibility) by conduct specifically proscribed by Sections DR 1-102(A)(4) and EC 8-5 thereof.

In accordance with Rule 5.18, the Honorable Richard C. Jensen was appointed as Master to conduct a hearing as provided in Rule 68.08; and, at the termination of the same he did file findings of fact and conclusions of law with an advisory recommendation that respondent “be disbarred, that his right and license to practice law in this state be cancelled and terminated unconditionally, and that his name be stricken from the roll of attorneys in this state.” Thereafter, the cause was docketed and arguments, both written and oral, were presented to this court.

All of the charges stem from respondent’s participation in the probate of the Last Will and Testament of one Elmer A. Gould in Jackson County, Missouri, wherein he acted as executor (and attorney) for the estate as well as one of three trustees (and attorney) of a testamentary trust created by deceased for the benefit of his minor children. The Master found that respondent sought to “keep hidden” the amount of fees received by him without court approval by (1) filing an inaccurate inventory, (2) failing to report certain transactions involving the estate and trust, and (8) not expending funds therefrom consistent with the applications presented to the court involved; and, that such “deception was practiced or attempted upon the Probate Court, the Circuit Court, the Guardian of the minor children and the Administrator ad Litem of the Estate.”

Nothing would be gained by detailing the volume of evidence heard and considered. Suffice it to say that the record supports the findings, conclusions and recommendation of the Master; and, we do not hesitate to find that respondent’s conduct was totally inconsistent with those professional standards demanded of the members of the bar of this state.

For the reasons indicated, it is the judgment of this court that respondent be disbarred, that his license to practice law in Missouri be terminated and that his name be stricken from the roll of attorneys in this state. Costs are taxed against respondent.

All concur.

      . References to rules are to Missouri Supreme Court Rules.

      . DR 1-102(A)(4), in part, provides that: “A lawyer shall not: Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
      EC 8-5, in part, provides that: “Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers.”


author: HOLMAN, Judge.

text:
    STATE of Missouri ex rel. Gary HARDIN, Relator, v. Honorable James L. SANDERS, Chief Judge and Judge of Division No. 1, Circuit Court of the City of St. Louis, vice Honorable William E. Buder, Retired, Respondent.
    No. 59362.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.
    James J. Amelung, Stephen D. Hoyne, Amelung, Wulff & Willenbrock, St. Louis, for relator.
    Stefan J. Glynias, Clayton, for respondent.
   HOLMAN, Judge.

The question for decision in this case is whether there can be a recovery under the Missouri Wrongful Death Act, Section 537.-080, V.A.M.S. for the wrongful death of a viable child or fetus born dead as a result of injuries negligently inflicted en ventre sa. mere. This is a question of first impression in Missouri.

Bobbie Jo and Gerald Holdner filed suit against relator in the circuit court of St. Louis City alleging that Bobbie was injured as a result of relator’s negligent operation of an automobile which also injured Bobbie’s “fetal child” resulting in its death and causing said child to be stillborn; that Bobbie was eight months pregnant at the time of the injury. The suit was in three counts. The first count sought a recovery for the injuries to Bobbie; the second count sought a recovery by Gerald for loss of consortium and the third a recovery by both parents for the death of the unborn child.

Relator filed a motion to dismiss the third count on the ground it failed to state a claim upon which relief could be granted. After the motion was heard the trial judge announced that he would overrule it unless prohibited by an appellate court writ. Upon petition of relator we issued our provisional rule on January 12,1976. We have decided that said rule should be made absolute.

As is customary in cases of this nature the attorneys for plaintiffs in the underlying case have briefed and argued the matter here on behalf of the respondent judge.

At the outset it is contended by respondent that the court had jurisdiction to rule on the motion and hence prohibition is not a proper remedy. In answer relator says that plaintiffs have not stated and cannot state a claim for relief and hence the trial court has no jurisdiction to proceed with the claim. We rule that under the circumstances indicated prohibition is an appropriate remedy. State ex rel. Kansas City Stockyards V. Clark, 536 S.W.2d 142 (Mo.1976).

There was no right of action for wrongful death at common law. Our statute providing for such recovery was originally enacted in 1855 and was modeled after Lord Campbell’s Act which was enacted in 1846. The present statute reads, in part, as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered.

“(1) By the spouse or minor children,

“(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, . . .”

We do not find any Missouri cases that are specifically applicable in deciding the question before us. Both sides have cited Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577 (banc 1953). In that case it was held that where a viable child suffered injuries before birth, was born alive and later died as a result of such injuries, the parents could recover from the tort-feasor for the child’s death. Also, as a matter of dictum, the case held that a viable child injured before birth but born alive could maintain a tort action for the injuries inflicted. While the Steggall opinion is very interesting it is distinguishable from the instant case because the holding is predicated upon the condition that there was a live birth of the fetus — a very important factor in deciding the question before us. The limited extent of Steggall is indicated by the statement that, “We do not desire to go beyond the question for decision in this case. We, therefore, confine our ruling to the facts presented.” 258 S.W.2d 579. We agree with the holding and also the dictum in Stegga.ll but do not find that Steggall rules the case at bar.

In the case of Acton v. Shields, 386 S.W.2d 363 (Mo.1965) the appellants sought an answer to the question before us. In Acton, however, the child left no parent surviving and the case was disposed of by a ruling that the administrator’s petition failed to allege pecuniary damage to the child’s collateral beneficiaries and therefore there could be no recovery.

In looking to the decisions in other states we find that a number of states have decided the question each way. The cases which deny recovery place the decision on a number of grounds. Some of the cases hold that there can be no recovery because a viable fetus which is injured and dies before birth is not a “person” within the meaning of the wrongful death statute. Cases so holding include Kilmer v. Hicks, 22 Ariz. App. 552, 529 P.2d 706[6] (1974); Davis v. Simpson, 313 So.2d 796[1] (Fla.App.1975), and Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221[1] (1958). It is pointed out in those cases that at common law an unborn fetus is not a “person,” Kilmer v. Hicks, supra; also that the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) held that a fetus is not a “person’.’ within the meaning of the Fourteenth Amendment.

Another line of cases holds that there can be no recovery because the unborn fetus could not have maintained an action for recovery of damages at the time of his injury and death and hence under the terms of the statute no right to maintain a wrongful death action is transmitted to the parents. See Lawrence v. Craven Tire Company, 210 Va. 138, 169 S.E.2d 440[1] (1969); Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229[1] (1951) and Howell v. Rushing, 261 P.2d 217[3] (Okl.1953).

A third ground for denying recovery is that any proof of damages in this sort of case is unreasonably speculative. “In the case of prenatal death there is no competent means of measuring the probable future earnings of the foetus. It is virtually impossible to predict whether an unborn child, but for its death, would have been capable of giving pecuniary benefit to anyone. ‘None of the usual indicia such as mental and physical capabilities, personality traits, aptitudes and training of the wrongfully killed are present.’ ” Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425, 428 (1966). See also, Graf v. Taggert, 43 N.J. 303, 204 A.2d 140[3] (1964).

The cases allowing recovery generally adopt the converse of the views set out above. They say that a fetus should be considered a “person” within the meaning of the wrongful death statute when it becomes viable. They also state the view that difficulty in proving damages should not bar recovery but should prompt greater leniency in affording the remedy. Some of those cases also hold that the condition that recovery may be had if the wrongful act would, if death had not ensued, have entitled the injured party to maintain an action is complied with if it be assumed that the fetus had been born alive and then could have sued.

Some of the principal cases allowing recovery are State to use of Odham, etc. v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973) and Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949).

Many of the cases holding that the action may be maintained and those holding to the contrary are listed and discussed in Anno. 15 A.L.R.3d 995,999. Also, a number of the cases heretofore cited list the cases which decide the issue both ways. In view of that there is no need to extend this opinion by copying those lists herein. In that connection see also, Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901, 903 (1969).

We hold that a wrongful death action may not be maintained for the death of an unborn child. It is our view that a fetus is not a “person” within the meaning of our wrongful death statute until there has been a live birth. We think the legislature in enacting the original act and subsequent revisions did not intend to create an action for the death of a fetus never born alive. In view of the common law rule that an unborn fetus was not a “person” we think if there had been an intention to create such an action it would have been specifically so stated. It also seems significant that in giving the right of recovery to the parents the statute used the phrase “if the deceased be a minor and unmarried.” The words “deceased,” “minor” and “unmarried” are words that usually, if not always, refer to one who has had some period of life after birth.

The foregoing observations are supported by a recent decision of the Supreme Court of the United States which states that, “In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad li-tem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.” Roe v. Wade, 410 U.S. 113, 161, 162, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973).

It has been suggested that Steggall stated that a viable fetus is a person within the meaning of the wrongful death statute. While there is some indication of that belief in that opinion any such indication was dictum and not a part of the decision and hence need not be followed.

Respondent contends that fixing the standard for recovery for death from prenatal injuries as live birth is arbitrary and unjust; that the test should be viability since there is very little difference in the situation where a fetus dies a short time before birth and where death occurs a few minutes after birth. In discussing that situation one writer has said that, “It is submitted that the viability test is no less arbitrary than the birth standard. The sole difference between viability and non-viability is merely a matter of time. Consequently, the injustice will not be removed, merely relocated. Moreover, the viability test is uniformly criticized by writers as being unworkable, for the time at which a pre-viable foetus becomes viable is indefinite and therefore, incapable of precise determination. Thus, since any limitation will be arbitrary in nature, a tangible and concrete event would be the most acceptable and workable boundary. Birth, being a definite, observable and significant event, meets this requirement.” Wenger, 69 Dickinson L.Rev. 258, 268. In Yol. 2 Harper and James, The Law of Torts, p. 1031, it is stated that, “Few cases have allowed separate recovery where the child is not born alive, and perhaps this is the fairest and most practical place to draw the line. It, too, would make arbitrary distinctions — as between the child killed just before delivery and one who dies just after — but this sort of thing will be encountered wherever there must be a borderline. Perhaps also there should be a qualification that the child be viable at the time of birth.” The views stated in the quoted authorities would appear to answer this contention.

Our statute predicates recovery upon the condition that the party injured would have been entitled to maintain an action if death had not ensued. Respondent contends that Steggall supports the proposition that the fetus in the instant case complied with that condition. We have heretofore pointed out that the holding in Steg-gall is conditioned upon live birth. Respondent apparently thinks that if the fetus in this case could have successfully maintained a suit after having been born alive the condition is complied with. We do not agree. It is our view that the fetus had to be entitled to maintain an action at the time the injury was sustained and not at some later time after there had been another development, i. e., live birth. And it should be obvious that an unborn fetus could not “maintain an action and recover damages” for personal injuries. See, Lawrence v. Craven Tire Company [1], supra, and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964).

Respondent says that if no recovery is permitted in this case we will have a situation where there is a wrong without a remedy. To some extent that may be true. It must be remembered, however, that before the statute was enacted there was no recovery at all for wrongful death. In enacting the statute it was for the legislature to determine the extent to which it would apply. “Statutes are not to be construed as effecting any change in the common law beyond that which is clearly indicated.” Kilmer v. Hicks, supra, 529 P.2d 707. As we have stated we find no legislative intent to include recovery for the death of an unborn fetus. Of course, it would seem unnecessary to mention that the mother can recover for injuries she received at the time of the casualty which fatally injured the fetus. In such an action her recovery would include mental and physical suffering in connection with the miscarriage. Vitale v. Biando, 52 S.W.2d 24 (Mo.App.1932).

As stated, we rule that plaintiffs cannot recover on the third count of the petition in the underlying suit. It follows that the provisional rule should be made absolute.

SEILER, C. J., and MORGAN, HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result.

      . “Having attained such form and development of organs as to be normally capable of living outside the uterus.” Webster’s Third New International Dictionary.

      . “In its mother’s womb. A term descriptive of an unborn child.” Black’s Law Dictionary, Fourth Ed.

      . “Dead at birth.” Webster, supra,


author: HENLEY, Judge. HOLMAN, Judge

text:
    STATE of Missouri, Respondent, v. Jesse BRYANT, Appellant.
    No. 59438.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.

      Allen Harris, Bell, Harris & Kirksey, St. Louis, for appellant.
    John C. Danforth, Atty. Gen. by Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

The main issue presented is whether the court or the jury shall assess the punishment where the defendant, charged with a felony under the Second Offender Law, is found guilty of a misdemeanor, a lesser-in-eluded offense. We hold the jury shall.

Jesse Bryant (defendant), charged under the Second Offender Law with assault with intent to maim with malice aforethought, a felony, was found guilty by a jury of common assault, a misdemeanor, and the court assessed his punishment and sentenced him to imprisonment for six months in the Medium Security Institution of the City of St. Louis. Upon appeal to the Missouri Court of Appeals, St. Louis district, that court reversed the judgment and remanded the case for a new trial, holding that the sentencing procedure of the Second Offender Law is not applicable to a misdemeanor conviction. We ordered the case transferred to this court on application of respondent and review it the same as on original appeal.

There is evidence that defendant and a friend, Tim Yeargin, were engaged in a fight with Edmond Smith late in the afternoon of December 22, 1971, in the city of St. Louis. While Yeargin was striking Smith on the head with “a stick with a little piece of steel on it,” defendant, wearing “brass knucks,” was hitting Smith upon and about his face and head with such force as to break Smith’s jaw. The evidence is sufficient to sustain the conviction. In addition, there was evidence from which the court determined that prior to this felony charge defendant had been convicted of another felony and sentenced, placed on probation, and later imprisoned therefor. Based on that finding the court also determined that if defendant were convicted in this case the court would assess punishment pursuant to § 556.280. Defendant does not question the prior felony conviction.

The court gave verdict-directing instructions submitting (1) assault with intent to maim with malice aforethought; (2) assault with intent to do great bodily harm without malice; and (3) common assault. During the instruction conference and after the court had stated it would give these three verdict-directors, defendant requested, and the court refused to give, an instruction informing the jury of the range of punishment for common' assault and authorizing the jury to assess the punishment if they should find him guilty of that offense.

Defendant contends that the court erred in refusing to give this instruction and in assessing his punishment, because assessment of punishment is the function of the jury exclusively, where, as here, the conviction is of a misdemeanor. He takes the position that for the court to have authority under the Second Offender Law to assess his punishment, he must have been convicted of a felony in this ease. In support of his contention he relies primarily upon State v. Hacker, 291 S.W.2d 155 (Mo.1956); State v. Kiddoo, 354 S.W.2d 883 (Mo.1962); State v. Myers, 470 S.W.2d 803 (Mo.App.1971). Hacker involved both a prior felony conviction and a subsequent charge and conviction of a felony. Kiddoo involved a prior conviction in another state of an offense which would have been a misdemean- or if committed in Missouri (see § 556.290); Myers involved a prior conviction of a misdemeanor and a subsequent charge and conviction of a misdemeanor. Neither of these cases involved a prior felony conviction and a charge of commission of a subsequent felony where the conviction under that charge was of a misdemeanor. Hence, these cases do not support defendant’s position. The issue presented is one of first impression in this state.

The state contends that for the Second Offender Law to be applicable it is not necessary that the defendant be convicted of a subsequent felony; that it is sufficient if he is convicted of either the felony charged or a lesser included offense, even a misdemeanor.

The Second Offender Law was amended in 1959. Before the amendment, it required certain mandatory maximum sentences, and the jury assessed the punishment if the defendant had been convicted of a prior felony and was subsequently convicted of a second felony. The amendment made at least two changes: (1) the provision for mandatory maximum sentences was eliminated; (2) the trial judge, instead of the jury, was authorized to assess the punishment for the second offense.

The state emphasizes the word “charged” in the first or introductory paragraph of § 556.280 and contrasts it with the word “convicted” in the same paragraph before amendment, arguing that under the amendment a defendant need only be charged with the subsequent felony and, of course, convicted, but that the amendment does not specify that he must be convicted of a felony. Therefore, argues the state, defendant may be “convicted” of the charged felony or a lesser-included offense, whether it be a lesser felony or misdemeanor, and in either case the punishment is to be assessed by the trial judge.

Section 556.280 does not state in its introductory paragraph the nature of the “second” or subsequent offense (felony or misdemeanor) of which defendant must be convicted for the trial judge to be empowered to assess punishment, but we believe that that paragraph and subparagraph (1), read together, do. The introductory paragraph requires that the offender be: (1) charged with a felony committed after a prior felony conviction, (2) tried, (3) convicted, and (4) punished; it makes no provision for the nature of the punishment for the second offense or who shall assess it, except by explicit reference to subparagraph (1). Subparagraph (1) authorizes the trial judge to assess the punishment if the second offense is one for which the offender could be imprisoned in the penitentiary, a felony (§ 556.020), but it does not state the circumstances under which it becomes applicable, except by implicit reference to the introductory paragraph of which it is a part. Considered together, however, as they must be, the two paragraphs clearly require that for the trial judge to have authority to assess the punishment, the offender not only must be charged with a felony committed subsequent to a prior felony conviction, but he must be convicted, and the subsequent offense of which he is convicted must be one for which he could be punished by imprisonment in the penitentiary, a felony. A conviction of an offense not punishable by such imprisonment, a misdemeanor, although an offense included within the subsequent offense charged, will not suffice to invoke the sentencing procedure of the Second Offender Law.

In view of the result reached, we need not consider defendant’s second point in which he claims the trial court erred in failing to allow him credit for time spent in jail awaiting trial.

The judgment is reversed and the cause remanded.

SEILER, C. J., and BARDGETT and DONNELLY, JJ., concur.

HOLMAN, J., dissents in separate dissenting opinion filed.

MORGAN and FINCH, JJ., dissent and concur in separate dissenting opinion of HOLMAN, J.

HOLMAN, Judge

(dissenting).

I respectfully dissent. Prior to 1959 in cases proceeding under Section 556.280, proof of the prior conviction was made before the jury and the jury was instructed that upon finding such it should impose a certain punishment, usually the maximum provided in the statute. The main purpose of the 1959 amendment was to provide a procedure under which the jury would not be advised of the defendant’s prior conviction. Under the amended statute it is provided that if a person previously convicted, etc., of a felony is charged with a later felony, tried and convicted, the trial judge shall determine the punishment.

The statute further provides that: “Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases.”

It will be noted that the provisions of the statute are activated in any case where it is alleged that defendant has been convicted of a felony, etc., and is charged with having thereafter committed the felony involved in the ease being tried. It is also significant that the judge, out of the hearing of the jury, should determine the facts concerning the prior conviction, etc., before submission of the case to the jury (usually early in the case). There is no provision in the statute for the jury to fix the punishment except when the finding is against the prior conviction, etc.

At the time this statute was amended the law was well settled that, if justified by the evidence, it was required in many felony prosecutions that lesser-included offenses, some of which are misdemeanors, must be submitted to the jury. The legislature is presumed to have known of that situation and yet it made no provision in the statute for the jury to fix the punishment in those misdemeanor situations. It therefore seems clear to me that the legislature intended that upon appropriate findings the trial judge should determine the punishment as to any offense of which the defendant is found guilty, felony or misdemeanor. My conclusion is further supported by the fact that to conclude otherwise would result in an undesirable and impractical situation where the court would instruct the jurors that if they found defendant guilty of the felony they would simply return a verdict of guilty whereas if found guilty of the lesser offense they should fix the punishment. This would present a very confusing situation to the jury which I cannot believe was intended by the legislature.

I would affirm the judgment.

      . Section 556.280, RSMo 1969. References to sections of the statutes will be to this revision unless otherwise stated.

      . Section 559.180.

      . Section 559.220.

      . Section 556.280 is, in part, as follows:
      “If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows:
      “(1) If the subsequent offense be such that, upon a first conviction, the offender could be punished by imprisonment in the penitentiary, then the person shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.”


author: McMillian, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gilbert CAGE, Defendant-Appellant.
    No. 37010.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 4, 1976.

      Joseph W. Warzycki, Blair K. Drazic, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMillian, Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis on a jury’s verdict finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon.

The court found that defendant was a second offender and sentenced him to twenty (20) years imprisonment.

On appeal, defendant contends that the trial court erred in unduly limiting his cross-examination of a material state witness. We disagree and affirm the judgment of conviction.

Nathaniel Thomas and Ralph Scales identified defendant as one of the persons who robbed the Contessa Motel in the City of St. Louis, Missouri. Nathaniel Thomas, the desk clerk, testified that defendant did not wear a mask, was in his presence for four (4) minutes during the robbery, and that he identified defendant in a police lineup the same night of the robbery.

Thomas admitted that he was a former drug addict; that he lived in a rehabilitation house for addicts until a few days before the trial; that he had previously been convicted on eight occasions, including one for the sale of heroin; that he had used no drugs since December, 1972; and that he had received treatment and counseling for his habit.

After all of the above testimony had been received, defendant asked Thomas the effect that shooting heroin had upon him. The court sustained the state’s objection. Defendant contends, citing McCormick on Evidence, § 30 at p. 58 (2d Ed.1972), that the question was proper to test Thomas’ ability to recall.

Prior to the court’s ruling upon defendant’s objection, counsel informed the court that the purpose of the question was to demonstrate that Thomas could not give an accurate description of defendant if Thomas had been using heroin on the day of the offense. The court inquired of counsel whether he had any evidence to show that Thomas was on heroin. Counsel answered no, and the court thereafter sustained the state’s objection. In this posture, a complete answer to defendant’s claim of error is that he had no evidence to support the question. But, even if we were to assume the question to be proper, nevertheless, the trial court has a wide latitude to control the scope and extent of cross-ex-animation. State v. Winn, 324 S.W.2d 637, 642-43 (Mo.1959). Here, the court permitted defense counsel to develop fully Thomas’ prior record and drug experiences so as to test his credibility and place him in his proper setting. Consequently, we find no abuse of discretion, and thus affirm the judgment.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Dorothy LEE and Edward Lee, Plaintiffs, v. Joseph KNIGHT, Jr. Defendant-Respondent, Alice Coleman, n/k/a Alice Mabry, Defendant, Cross-Claimant-Appellant.
    No. 36849.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 11, 1976.

      Jack Gallego, Troy, Mo., for appellant.
    Kortenhof & Ely, Frank E. Strzelec, St. Louis, for respondent.
    Glennon T. Moran, St. Louis, for plaintiffs.
   ALDEN A. STOCKARD, Special Judge.

Plaintiff Dorothy Lee was a passenger in an automobile operated by defendant Alice Coleman, subsequently remarried and hereinafter referred to as Alice Mabry, which was involved in a collision with an automobile operated by defendant Joseph Knight, Jr. She brought suit against the operator of each automobile for personal injuries, and in a separate count her husband sought damages for loss of consortium. Defendant Mabry filed a cross-claim against defendant Knight in which she sought damages for personal injuries sustained in the same collision. Before the trial of the Lees’ causes of action, by agreement of all the parties, the cross-claim was severed and a separate trial was ordered.

Plaintiffs’ case was submitted to the jury on the issue of primary negligence on the part of defendant Mabry in failing to keep a careful lookout, and on the part of defendant Knight in failing to yield the right of way. A verdict was returned against each defendant, and judgment was entered thereon.

Thereafter trial was had on defendant Mabry’s cross-claim, and the ease was submitted to the jury on the issue of the failure of defendant Knight to keep a careful lookout, or in driving at an excessive speed, or in failing to yield the right of way. Defendant Knight submitted contributory negligence on the part of cross-claimant Mabry in failing to keep a careful lookout. The jury returned a verdict in favor of cross-claimant Mabry, and judgment was entered thereon. Thereafter defendant Knight filed a motion for “judgment in accordance with motion for directed verdict,” and assigned as a reason therefore that cross-claimant Mabry was “conclusively negligent as a matter of law by reason of the verdict returned in this case in the claim of Dorothy and Edward Lee against Alice [Mabry] and Joseph Knight, Jr., in that, in this case, a jury deciding the Lee claim held that both [Mabry] and Knight were négligent,” and that that “verdict acts as a final determination of the negligence of the parties, becomes the law of the case, and is res ad judicata on the issue of Alice [Mabry’s] negligence.” The trial court sustained this motion and entered judgment for defendant Knight. Cross-claimant Ma-bry has appealed. We reverse with directions.

We consider the issue presented on this appeal to be governed by Page v. Hamilton, 329 S.W.2d 758 (Mo.1959). There the plaintiff obtained a judgment against joint tort-feasors based on humanitarian negligence. As to defendant Crowe the negligence submitted was the failure to slacken the speed of his automobile and to swerve to the right. Defendant Crowe filed a cross-claim against defendant Hamilton, and plaintiff’s cause and the cross-claim were tried together. Cross-claimant Crowe submitted primary negligence on the part of Hamilton in that he failed to drive his automobile as close to the right side of the highway as possible, and Hamilton submitted contributory negligence on the part of Crowe in that he could have seen Hamilton’s automobile enter the travel lane in time thereafter to have avoided the collision by slackening speed and swerving his automobile to the right. The jury returned a verdict in favor of plaintiff and against both defendants in plaintiff’s case, and in favor of cross-claimant Crowe and against defendant Hamilton on the cross-claim. The trial court held the verdict to be inconsistent because the negligent act which the jury was required to find in order to return a verdict for plaintiff against defendant Crowe consisted of the identical contributory negligence submitted with respect to Crowe’s cross-claim against Hamilton. The verdicts of plaintiff for Crowe as to liability were set aside and a new trial ordered. On appeal the Missouri Supreme Court said: “Absent the filing of a cross-claim the right of the defendant inter sese would not have been adjudicated because ordinarily a judgment in favor of a plaintiff does not determine the relative rights or liabilities of codefendants unless their hostile or conflicting claims are actually brought into issue by pleadings and are litigated and determined.” The court further commented: “This points up one of the perplexing questions of the case; that is, whether a result, legally acceptable when achieved by different verdicts in separate trials on the same set of facts, becomes erroneous because of inconsistency when accomplished by a general verdict in a single trial of separate causes of action joined in the same suit * * (Italics added.) The court also stated: “If the same general verdicts had been returned in separate trials of plaintiff’s action and defendant Crowe’s cross-claim under instructions before us [that is, those instructions which were given], there could not be any legal inconsistency; that is, no inconsistency justifying setting either or both of the verdicts aside.” This above result is in accord with the majority rule as set forth in an annotation entitled “Judgment in Action Against Codefendants for Injury or Death of Person, or for Damage to Property, As Res Judicata in Subsequent Action Between Co-defendants as to their Liability Inter Se.” 24 A.L.R.3d 318. See particularly § 10(a) of that annotation.

Respondent Knight relies primarily on McGuire v. Southwestern Greyhound Lines, Inc., 291 S.W.2d 621 (Mo.App.1956), but that case was overruled by Page v. Hamilton, supra.

The rule of Page case was applied in Crystal Tire Co. v. Home Service Oil Company, 525 S.W.2d 317 (Mo. banc 1975), where plaintiff’s cause of action and cross-claims between two defendants were tried together. In that case plaintiff obtained a judgment against Home Service Oil Company and C.E.S. Truck Lines, Inc. for negligently causing a fire. Each defendant filed a cross-claim against the other, and each sought to be indemnified on the basis that its negligence, if any, was passive while the negligence of the other was active. The verdict of the jury was against each cross-claimant. On appeal C.E.S. Truck Lines, Inc. contended that an instruction requested by Home Service Oil Company was “in conflict with the law of the case as declared * ⅝ * in Crystal Tire Co. v. Home Service Oil Co. et al., 465 S.W.2d 531, 533 (Mo.),” the appeal from plaintiff’s judgment against both defendants. The court held that what was said by the court on the earlier appeal in reference as to whether plaintiff made a case against both defendants under the res ipsa loquitur doctrine was “the law of the case as to Crystal Tire’s claim against both defendants. It is not the law of the case with respect to each defendant’s cross-claim against the other submitted on primary negligence. It is not binding on these defendants on the question of which one of them was guilty of active negligence and which passive. A jury could, under these facts, reach a result different from and inconsistent with what [the court said was the law of the case pertaining to plaintiff’s claim against both defendants] in determining the issues involved in the two cross-claims.”

We are of the opinion that the trial court erroneously entered judgment for defendant Knight on Mabry’s cross-claim.

Defendant Knight filed, in the alternative to his motion for judgment, a motion for new trial. He now asserts on this appeal that in the event he is not entitled to judgment as a matter of law, he is entitled to a new trial “because of the erroneous injection of Mabry’s family status in the case.” He refers to two occurrences.

During the direct examination of Alice Mabry she testified that she still had various complaints, that she had difficulty in walking, and that changes in weather adversely affected her. She was then asked: “And how many children do you have at home now?” An objection was made on the basis that “it has no bearing on this ease.” The court agreed, although the witness had during the making of the objection answered, “Three.” Counsel for Mrs. Mabry then said, “All right. Delete that question,” and the court answered, “All right.” No other relief was requested. There was no mention made in the motion for new trial of this incident.

The other incident occurred during the examination of Mrs. Mabry’s treating doctor when he was relating her past medical history as related to him by her. During that testimony the doctor stated that “There was a history of treatment for a broken rib received from a. fall from a horse in 1956 with normal recovery. She had the following surgeries: In 1957 a tonsillectomy —” Counsel for defendant objected that “the tonsillectomy would [not] have any relevance to any injuries in this accident,” and that “the past history would not be relevant if she was free of any back problems or neck problems but the other problems that she did have I don’t think would be relevant.” The court said: “Overruled.” The witness then continued: “Well, her— she had four children by cesarean, all living. They were in ’59, ’61, ’63, and ’65. ’66 she had a tubal ligation and this was her medical history up until the time that she received her injuries in this accident * There was no objection to the reference to the number of children she had had by cesarean, no motion to strike, and no request for any relief.

Defendant Knight cites and relies on Donze v. Swofford, 368 S.W.2d 917 (Mo.App.1963), in which it was forcefully stated that “it is improper to inquire of a plaintiff as to the number of children there are in his family.” We can assume that the question in the first incident was improper, but the question was “deleted,” no relief was requested such as the answer be stricken and disregarded by the jury, and there is no reference to the incident in the motion for new trial. It serves as no basis for sustaining the motion for new trial.

As to the second incident, defendant Knight presents no issue as to the propriety of the doctor relating the medical history of cross-claimant Mabry, and the cesarean operations were a part of that history. But, of more importance, there was no objection to the testimony, no motion to strike, and no request for other relief. In these circumstances the second incident presents no basis for sustaining the motion for new trial.

The judgment is reversed and the cause remanded with directions to reinstate the judgment in favor of cross-claimant Mabry and against defendant Knight as of the date it was originally entered.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: TITUS, Judge. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Edward FIELDS, Jr., Appellant.
    No. 10099.
    Missouri Court of Appeals, Springfield District.
    June 8, 1976.
    Motion for Rehearing or to Transfer Stricken on June 28, 1976.

      John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Paul Crider, Jr., Public Defender, Rolla, for appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Defendant, a soldier stationed at Ft. Leonard Wood, was charged with rape committed in Waynesville on 21 September 1974. He now appeals from judgment of conviction and sentence to 25 years’ imprisonment entered on a jury verdict finding him guilty.

The sole point relied on is: “The court erred in overruling appellant’s motion to suppress evidence and admitting evidence at trial sought to be suppressed by said pre-trial motion, since such evidence was procured in violation of appellant’s rights to due process, assistance of counsel and right against self-incrimination under the Fifth and Sixth Amendments to the United States Constitution.”

This “point” is yet another illustration of the continued utter disregard by lawyers of the mandatory requirements of Civil Rule 84.04(d), V.A.M.R., made applicable to criminal cases by Criminal Rule 28.18, V.A.M.R. State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971). Without resorting to the transcript on appeal or the argument portion of defendant’s brief, which we are not obliged to do [State v. Freeman, 489 S.W.2d 749, 752[2] (Mo.App.1973)], we are not told by the “point” what evidence was sought to be suppressed nor “wherein” and “why” the admission thereof allegedly violated defendant’s constitutional rights. But while the “point” does not preserve or present anything for appellate review, we will briefly, nevertheless, consider it to ascertain if plain error affecting substantial rights was committed (Criminal Rule 27.-20(c), Y.A.M.R.) because of the contention that defendant’s federally guaranteed constitutional rights were violated. State v. Coyne, 452 S.W.2d 227, 228[1] (Mo.1970).

Following defendant’s release on recognizance and after he had engaged defense counsel of his own choosing, defendant discussed with his attorney and a military lawyer the advisability vel non of submitting to a polygraph examination. It was decided he should take the test. Defendant’s company commander notified the Criminal Investigation Division (CID) at Ft. Leonard Wood of defendant’s desire. The examination was conducted 4 December 1974 without defendant’s counsel present or having been notified when the test was to be administered. Upon arriving at the CID office, defendant was given and signed a written consent document to take the polygraph test. The document also informed defendant “of his rights under the Uniform Code of Military Justice and Fifth Amendment of the Constitution of the United States.”

Before embarking upon the examination, the special agent who was to give the test read to defendant his “rights.” At the hearing on the motion to suppress, defendant testified: “I understood it to be that I didn’t have to make any statements, do anything without my counsel being present.” When the test was completed and defendant was advised that there “had been some deceit” evidenced by the examination, defendant was asked if he wanted to discuss the matter further with another CID agent and the Chief of Police of Waynesville. Defendant assented and acknowledged he “voluntarily made the statements” sought to be suppressed to the second agent and chief of police. Although the chief of police did not testify at the hearing, it was stipulated that if he had been present the chief would testify that before he and the second special agent interrogated defendant, the chief “gave a Miranda Warning to defendant.”

There was no error in overruling defendant’s motion to suppress the testimony of the two special agents and the chief of police. It is obvious from what we have recounted of the evidence that defendant had been repeatedly and amply advised of his rights and that he voluntarily, knowingly and intelligently waived his rights. “If an accused can voluntarily, knowingly and intelligently waive his right to counsel before one has been appointed [or employed], there seems no compelling reason to hold that he may not voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed [or employed].” Moore v. Wolff, 495 F.2d 35, 37[2] (8th Cir. 1974.) In an excellently written case most similar to the one now at bar, State v. McConnell, 529 S.W.2d 185 (Mo.App.1975), all of the points and arguments advanced by defendant on this appeal are exceedingly well met and properly dispatched. It would be sorely amiss for us to plagiarize the efforts put forth in preparing the McConnell opinion. The judgment is affirmed.

All concur.

On Motion for Rehearing or to Transfer

PER CURIAM:

The opinion in this case was filed June 8, 1976. Motions for rehearing must be filed within 15 days after the opinion of the court shall be filed and applications for transfer to the Supreme Court of Missouri must also be filed within 15 days of the filing date. Rules 84.17 and 83.02, Y.A. M.R. Defendant’s pro se motion for rehearing or transfer “out of time” was received and filed by the clerk of this court on June 28, 1976, well beyond the prescribed time. The 15-day limitation for filing defendant’s motion is cast in mandatory language, and neither counsel nor this court is at liberty to ignore or wink at that limitation. The order of this court should be and is that defendant’s purported motion for rehearing or to transfer be stricken. Hood v. M. F. A. Mutual Insurance Company, 379 S.W.2d 806, 813[13] (Mo.App.1964); Hoevelman v. Reorganized Sch. D. R2 of Crawford County, 452 S.W.2d 298, 303[9] (Mo.App.1970), and Adams v. White, 488 S.W.2d 289, 294[15-17] (Mo.App.1972).

      . “Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used as evidence against you in a criminal trial. You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he’s reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?” Defendant answered, “No.”