author: ODOM, Judge. ONION, Presiding Judge

text:
    Donald Lee PINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50983.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.

      Richard L. Petronella, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Michael Hinton, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of murder; punishment, assessed at death, was subsequently commuted by the Governor of Texas to confinement for life.

In his first ground of error appellant contends the trial court failed to properly admonish him as required by Article 26.13, V.A.C.C.P., before accepting his plea of nolo contendere. The court admonished appellant of the range of punishment but did not inquire whether his plea was influenced by fear, persuasion, or delusive hope of pardon. There is no showing that appellant was prejudiced or injured by the failure of the trial court to make such inquiries, nor was objection made at the time the plea was accepted or by motion for new trial. Gusten v. State, Tex.Cr.App., 522 S.W.2d 494. Neither was there a total failure to admonish appellant as to the range of punishment. Cf. Walker v. State, Tex.Cr.App., 524 S.W.2d 712. Reversible error is not shown. The ground of error is overruled.

In his second ground of error appellant asserts that a new trial is required because other evidence was received by the jury during deliberations, citing Gibbs v. State, 163 Tex.Cr.R. 370, 291 S.W.2d 320, and Baltazar v. State, Tex.Cr.App., 373 S.W.2d 753. In each of those cases the defendant offered evidence in support of his motion for new trial at the hearing thereon. In the instant case appellant failed to offer the affidavits that had been filed with the motion, and also failed to offer any other evidence in support of his motion when it was called for hearing. Not having been presented with evidence in support of the motion when it was called for hearing, the trial court did not err in denying a new trial. Rios v. State, Tex.Cr. App., 510 S.W.2d 326; Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900; Walker v. State, Tex.Cr.App., 440 S.W.2d 653. The ground of error is overruled.

The judgment is affirmed.

ONION, Presiding Judge

(dissenting).

The majority has moved from the sublime to the ridiculous in their interpretation of Article 26.13, Vernon’s Ann.C.C.P., abandoning any pretense of a requirement that there even be “substantial compliance” with the statute which forbode dire consequences for the interpretation to be given the 1975 amendment of the statute passed in an attempt to validate some of their past emasculation of a wholesome statute.

The trial of the instant murder case commenced on January 31, 1972, before a jury on a plea of not guilty. After several days of trial the appellant changed his plea to nolo contendere. The court accepted such plea and instructed the jury to return a verdict of guilty and to assess punishment. The jury assessed punishment at death. Such punishment was later commuted to life imprisonment by the Governor of Texas.

In his appellate brief filed in the trial court in accordance with Article 40.09, Sec. 9, Vernon’s Ann.C.C.P., the appellant complains of the trial court’s failure to properly admonish him as required by Article 26.13, supra, then in existence, and contends the same calls for reversal. Under the provisions of Article 40.09, supra, the trial court, after consideration of the appellate briefs and oral arguments, if any, had the right to grant a new trial. The trial court, however, took no action to pass on this ground of error thus raised in the trial court and the record was forwarded to this court.

The record reflects that after appellant and his counsel indicated to the trial court he desired to change his plea to nolo conten-dere the court advised him of the range of punishment, inquired whether he was of sound mind and if he desired to change his plea. As the majority opinion notes, there was no inquiry as to whether the plea was prompted by any consideration of fear, any persuasion or delusive hope of pardon as required by the statute. Further, there was no inquiry as to “force,” “coercion” or “promise,” which have on occasion been held sufficient to meet the requirements of the statute, see, i. e., Mayse v. State, 494 S.W.2d 914 (Tex.Cr.App.1973). Clearly the court’s inquiry was not sufficient to show that the appellant was freely and voluntarily entering the nolo contendere plea.

Part I

Article 26.13, Vernon’s Ann.C.C.P., in effect at the time of trial, reads as follows:

“If the defendant pleads guilty, or enters a plea of nolo contendere he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”

The statute and its forerunner have been a part of every Code of Criminal Procedure ever enacted in this State and have been in existence since 1857. See Bosworth v. State, 510 S.W.2d 334, 336 (Tex.Cr.App.1974) (Dissenting Opinion). The statute and its forerunners were enlightened statutes designed to provide procedure to prevent a plea of guilty or later a plea of nolo contendere from being entered in a felony case without a determination that the same was freely and voluntarily entered.

The statute, changed little in verbiage over the years, has governed the procedure in accepting such pleas in felony cases, and has until recently been interpreted consistently. Over the years this court has again and again held that the statute was mandatory. See, i. e., Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972); Ex parte Battenfield, 466 S.W.2d 569 (Tex.Cr.App.1971); May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Coleman v. State, 35 Tex.Cr.R. 404, 33 S.W. 1083 (1896); Saunders v. State, 10 Tex.App. 336 (1881). And the court for many years held that failure to comply with the mandatory provisions of the statute may be raised any time. May v. State, supra; Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Battenfield, supra; Ex parte Chavez, supra; Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970) (Concurring Opinion).

Over the years it has been held that statutory requirements “are indispensable to the validity of such plea, and must be shown by the record, to sustain a conviction thereon.” Coleman v. State, supra; Bosworth v. State, supra (Dissenting Opinion) and cases there cited. It was also held that these prerequisites to the validity of the plea cannot be supplied by inference, in-tendment or presumption. Coleman v. State, supra.

With this background and interpretation, the statute up to the date of the instant trial was repeatedly reenacted by the Legislature with little or no change, showing under a well established rule of statutory construction this approval of such interpretation and that the same construction is applicable.

Ignoring such well established rule of statutory construction, the three man majority, constituting itself a three man Legislature and imposing their own views, began an emasculation of the statute in 1973. Their efforts at emasculation have been detailed elsewhere and will not be detailed here. It is observed that in Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973), and Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973), the majority decided to eliminate any requirement that there be any inquiry whether the guilty plea or plea of nolo contendere was prompted by a “delusive hope of pardon.” In Bosworth v. State, supra, the necessity of any inquiry as to “persuasion” was eliminated, although for a while the required inquiry as to “any consideration of fear” seemed alive and well. See Wade v. State, 511 S.W.2d 7 (Tex.Cr.App.1974). See also Ex parte Watson, 508 S.W.2d 399 (Tex.Cr.App.1974); Pigg v. State, 508 S.W.2d 652 (Tex.Cr.App.1974); Cevilla v. State, 515 S.W.2d 676 (Tex.Cr.App.1974).

When confronted, however, with an admonishment that did not include any inquiry as to “fear,” in Guster v. State, 522 5.W.2d 494 (Tex.Cr.App.1975), the majority took a different tack. It will be discussed later.

The majority’s opinion in Ex parte Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975), also represented a significant departure from past decisions concerning interpretations of Article 26.13, supra. Such opinion held that the petitioner was not entitled to relief on collateral attack if the failure to comply with the otherwise mandatory statute did not result in injury to the petitioner such as would deprive him of a fair trial or deny him a constitutional right. Then the majority in Williams v. State, 522 S.W.2d 488 (Tex.Cr.App.1975), extended Taylor and held that if the violation of Article 26.13, supra, was not assigned as error in the trial court under Article 40.09, Vernon’s Ann.C. C.P., it would not be considered by this court as unassigned error “in the interest of justice” under Article 40.09, Sec. 13, Vernon’s Ann.C.C.P. In Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975), the majority further held that unless there is a showing that the accused is prejudiced or injured by the trial court’s failure to fully comply with the statute and there is no objection to such failure at the time of the plea or by motion for new trial, no appellate review will follow even if such failure is assigned as error under Article 40.09, Sec. 9, Vernon’s Ann.C. C.P., by appellate brief filed in the trial court while the trial court still retains jurisdiction and can grant a new trial. Article 40.09, Sec. 12, Vernon’s Ann.C.C.P.

Subsequently in Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975), the failure to comply with Article 26.13, supra, was raised for the first time on appeal in a motion for rehearing in this court after an opinion on original submission had been handed down. In Walker the majority announced that the error could then be raised because the trial court had not fully complied with the statute since there was a total failure to explain or even mention the range of punishment (consequences of the plea), to Walker, although there was compliance with the balance of the statute.

In Walker v. State, supra, the dissenting opinion inquired:

“Is this total failure approach applicable to a total failure to inquire as to whether the guilty plea was prompted by ‘any consideration of fear’? To a total failure to inquire as to ‘any persuasion’? To a total failure to inquire as to a ‘delusive hope of pardon’? Would this new approach apply to a total failure to inquire as to any or all of the three factors above? If it does not, is the majority making the distinction between one portion of Article 26.13, supra, and another? Is the majority giving more weight to one portion of the statute than another? It is observed that the majority opinion, in conclusion, cites with approval the concurring opinion in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974), which favored the semicolon approach, holding in effect that everything in the statute prior to the semicolon in the statute (including the consequences of the plea requirement) was mandatory and the rest was not. Has this approach of one judge now become the majority’s approach since Guster ?”

The instant case answers many of these questions for it is now obvious that more weight is given to the consequences of the plea (range of punishment) than to the balance of the statute. Thus, where there is a total failure to admonish as to the range of punishment, the question of compliance can be raised for the first time at least as late as a motion for rehearing in this court. On the other hand, a total failure to comply any inquiry as to fear, persuasion, delusive hope of pardon, etc., to determine whether the plea was freely and voluntarily entered, which inquiry is the very essence of the statute, cannot be raised by appellate brief filed in the trial court at a time when the trial court can still grant a new trial. See Article 40.09, Sec. 12, Vernon’s Ann.C.C.P. Such approach seems to adhere to the semicolon interpretation espoused in the concurring opinion in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974). Cf. Ex parte Rodriguez, 39 Tex. 705 (1873). See “The Semicolon Court of Texas,” George E. Shelley, The Southwestern Historical Quarterly, Vol. XLVIII, No. 4, April, 1945.

As earlier noted, there was a total failure of any inquiry as to whether the nolo con-tendere plea was prompted by any consideration of fear, any persuasion or by delusive hope of pardon or anything equivalent thereto. Further, there was no inquiry as to “force,” “coercion” or “promise,” etc. The record clearly shows the court’s inquiry was not sufficient to show the plea was freely and voluntarily entered. For failure to comply with the statute I would reverse and remand this conviction. It never ceases to amaze me that this court will require peace officers, not legally trained, to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann. C.C.P., before confessions can be used and even encourage the use of “blue” and “green” cards containing such warnings, but will not require legally trained judges to properly admonish defendants as to their guilty pleas, even passing the burden on to the unwary defendant to timely call to the legally trained judge’s attention where he has fallen short in his obligations required by law. We have really reached a sad state of affairs.

Part II

“. . .a guilty plea is a grave and solemn act to be accepted only with care and discernment . . . .” Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

Since there was a failure to determine whether the nolo contendere plea was freely and voluntarily given in the instant case, I further conclude that the appellant was deprived of the due course of the law. See Article I, Sec. 19, Texas Constitution.

Parí III

In light of the majority’s interpretation of Article 26.13, supra, there further exists a federal constitutional problem. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), held that it was error, plain error, for a state trial judge to accept a plea of guilty without an affirmative showing that it was intelligent and voluntary. The basic mandate of the Constitution of the United States as interpreted by the Supreme Court of the United States is that a trial court must determine that a plea of guilty is “knowingly, intelligently, voluntarily and willingly entered.” See Goode v. State, 312 N.E.2d 109 (Court of Appeals, Indiana, 3rd Dist. 1974); Branan v. State, 316 N.E.2d 406 (Court of Appeals, Indiana, 3rd Dist. 1974).

The legal effect of a nolo contendere plea is the same as a guilty plea insofar as criminal prosecution is concerned in Texas. See Article 27.02, Vernon’s Ann.C.C.P.; Sowell v. State, 503 S.W.2d 793 (Tex.Cr.App.1974); Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973).

Since this record does not reflect an affirmative showing that the nolo contendere plea was intelligently and voluntarily given, I conclude that Boykin v. Alabama, supra, would also call for reversal.

For the reasons stated, I dissent.

ROBERTS, J., joins in Part III of this dissent.

      . The court, in addition to informing appellant of the range of punishment, ascertained that appellant had conferred thoroughly with his two attorneys before changing his plea, that he agreed with his attorneys on the advisability of changing his plea, that it was his personal desire to change the plea, that he was satisfied with the representation he was receiving from his attorneys, that he understood what he was doing, and that he was of sound mind. Only after this did the court allow appellant to change his plea from not guilty to nolo contendere. At no time were objections or inquiries made by appellant during the proceedings.

      . Article 26.13, Vernon’s Ann.C.C.P., 1965, was amended by Acts 1973, 63rd Leg., p. 968, ch. 399, Sec. 2(A), effective January 1, 1974. It was again amended by Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 3, effective June 19, 1975. Such are not here applicable to this 1972 trial. However, the 1975 amendment reads as follows:
      “(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
      “(1) the range of punishment attached to the offense; and
      “(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
      “(b) No plea of guilty or plea of nolo con-tendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
      “(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

      . The record reached this court on September 15, 1975.

      . Prior to the instant trial there was a separate pre-trial sanity hearing wherein the jury found the appellant competent to stand trial.

      . 53 Tex.Jur.2d, Statutes, Sec. 192, p. 294, states:
      “Where a statute that has been construed, either by a court of last resort or by executive officers, is reenacted without any substantial change of verbiage, it will continue to receive the same construction

      “Where a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one . . .

      . The rule seems to be alive and well as it was recently utilized in Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975), in an opinion authored by Judge Odom. It was conveniently ignored, however, in the new interpretation given to Article 26.13, supra, by the majority.

      . See and cf. dissenting opinion in Coleman v. State, 530 S.W.2d 823 (Tex.Cr.App.1975), by Judge Roberts.

      . See dissenting opinion in Bosworth v. State, supra; Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975); Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975).

      . It now appears possible under this decision that a judge may fail to make any inquiry as to voluntariness and even misinform the accused as to the proper range of punishment and the majority will hold the same a compliance with Article 26.13, Vernon’s Ann.C.C.P. See Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), overruling Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Manuel Laujan CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 50639.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.
    Cleatus M. Phelan, McKinney, for appellant.
    Tom O’Connell, Dist. Atty., and Bill Jouette, Asst. Dist. Atty., McKinney, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for sale of a controlled substance, to-wit: heroin. The jury assessed punishment at 15 years in the Texas Department of Corrections.

The record reflects that David Stallings, an undercover narcotics officer with the Texas Department of Public Safety, purchased a tin foil packet from the appellant on October 16, 1973. The foil packet was found to contain heroin.

Appellant in his brief raises two grounds of error that are closely related and will, therefore, be discussed together. In his first ground of error appellant contends that the trial court erred in overruling his motion for a mistrial, when after the State’s chief witness had testified the court allowed the State to read the indictment to the jury. In his second ground of error appellant contends that there was not enough evidence properly before the jury to support the conviction.

Appellant argues that the order of proceedings set out in Art. 36.01, V.A.C.C.P., is mandatory and that it was not properly followed in his trial.

Art. 36.01 of the Code of Criminal Procedure provides in part as follows:

“A jury being impaneled in any criminal action, the cause shall proceed in the following order:
“1. The indictment or information shall be read to the jury by the attorney prosecuting. .
“4. The testimony on the part of the State shall be offered.” (emphasis added)

In 1884, the predecessor of this Court held that the very first step in a criminal trial after the organization and impaneling of the jury was the reading of the indictment to the jury. This was further held to be mandatory. Wilkins v. State, 15 Tex.App. 420 (1884); White v. State, 18 Tex.App. 57 (1885).

In Essary v. State, 53 Tex.Cr.R. 596, 111 S.W. 927 (1908) this Court held that Art. 697(1) of the Code of Criminal Procedure then in effect was mandatory, and that the first step in a felony trial was the reading of the indictment to the jury. The Court also held that if the error was discovered and the indictment read to the jury the State could proceed to re-introduce its proof unless the defendant waived the re-introduction of the evidence. Messenger v. State, 81 Tex.Cr.R. 465, 198 S.W. 330 (1917). See also Boening v. State, 422 S.W.2d 469 (Tex.Cr.App.1967); Johnson v. State, 118 Tex.Cr.R. 291, 42 S.W.2d 782 (1931); Theriot v. State, 89 Tex.Cr.R. 428, 231 S.W. 777 (1921); 56 Tex.Jur.2d, Trial, Sec. 75.

In Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974) this Court by implication again indicated that the reading of the indictment to the jury as prescribed by Art. 36.01 was mandatory.

The authorities clearly indicate that the order of proceedings set out in Art. 36.01, V.A.C.C.P., is mandatory and must be followed by the trial court. The record in the case before us indicates that the trial court became aware of the error in the proceedings only after the State’s chief witness had testified. The trial court attempted to correct the mistake. The jury was retired and the appellant was formerly arraigned in accordance with Art. 26.01, V.A. C.C.P. Thus the trial court avoided the problem in Wood v. State, supra, of arraigning the accused before the jury.

After arraigning the appellant the trial court brought the jury back into the courtroom. The record indicates the following:

“THE COURT: Ladies and gentlemen of the jury, please be seated. You were selected as the jury to try this case yesterday. And this morning it was raining and I was in a hurry to get to this court some twenty miles away and I’m probably moving a little rapidly. The State did not present its indictment, which will be done at this time. You may present your indictment, Mr. District Attorney.
(The indictment is read to the jury)
“THE COURT: All right. How do you plead to the presentment of this indictment?
“DEFENDANT CASTILLO: Not guilty, sir.
“THE COURT: Not guilty? All right.
“MR. STOOKSBERRY: Your Honor, again I would like to object to the reading of the indictment at the present time in front of the jury after the jury being impaneled and the jury has heard evidence. Again I would like to move for a mistrial in this cause.
“THE COURT: So understood by the Court and your motion is overruled.
“MR. STOOKSBERRY: Note my exception.
“THE COURT (to the witness, Mr. David Lynn Stallings): Mr. Stallings, since the presentment of this indictment, if the State offered the precise evidence and testimony that has been elicited prior to this time, would your answers be exactly and precisely the same?
“WITNESS STALLINGS: Yes. They would.
“THE COURT: And every word you have spoken has been in the presence of this defendant, his counsel and this jury?
“WITNESS STALLINGS: Yes, sir.
“THE COURT: All right, sir. Let your record show, Mr. Reporter, that everything spoken has been done in the presence of this jury and that the Court would feel that it is not consistent practice or common sense to offer the same exact testimony. These people are sitting right in front of me, this jury is, and they’ve heard every spoken word, and the record will remain as stated at this time. O.K. Passing the witness, Mr. Defense Counsel.”

In Johnson v. State, supra, this Court said:

“Until the indictment was read and appellant’s plea entered, no issue was joined between the state and the appellant. . When the indictment was read and appellant pleaded thereto, the evidence should have been reintroduced.”

It was incumbent on the State to re-introduce the testimony of Stallings unless the defendant stipulated to the evidence. In the case before us there was no such stipulation by the appellant. Where the defendant objects to the re-introduction of the evidence as being repetitious and is sustained he will be held to have waived his contention that the evidence was not properly before the jury. Barbee v. State, 32 Tex.Cr.R. 170, 22 S.W. 402 (1893). The record before us indicates that the State wanted to go through the testimony of Stallings again and so informed the court. The trial court, however, felt that it would “not be consistent practice or common sense to offer the same exact testimony.”

The correct procedure to be followed is set out in Trammell v. State, 445 S.W.2d 190 (Tex.Cr.App.1969). In Trammell v. State, supra, at the penalty stage of the trial the State introduced evidence of the accused’s prior convictions without first reading the enhancing portions of the indictment to the jury. When the error was discovered the State was allowed to reopen and read the indictment to the jury. The accused objected that the State had waived the enhancement portions of the indictment. At this point the State proposed to re-introduce the testimony previously offered. The accused with his counsel agreed and stipulated before the jury, in lieu of re-producing the testimony, that the evidence previously offered would be the same and could be considered by the jury. The accused and his counsel having stipulated to the evidence before the jury, this Court held the evidence was properly before the jury. See also Peoples v. State, 459 S.W.2d 868 (Tex.Cr.App.1970).

The record before us indicates that the trial court was trying to move the trial too quickly because of a crowded docket. The trial court took a short cut in attempting to avoid the re-introduction of the State’s testimony. The action of the trial court is not to be commended. The court should have allowed the State to re-introduce the testimony if the defendant would not stipulate to what the testimony would have been. However, in the absence of an objection directing the court to the correct procedure, we hold that the error was not preserved, under the circumstances here presented. Appellant’s motion was for a mistrial and it was properly denied by the court.

Appellant’s first and second grounds of error are overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . Appellant’s contention is that Stallings’ testimony was not properly before the jury since it had been adduced prior to the reading of the indictment.


author: DALLY, Commissioner. DOUGLAS, Judge

text:
    Leslie R. Owens SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 50707.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.
    Terral R. Smith, Austin, for appellant.
    Arthur C. Eads, County Atty., and Ernie B. Armstrong, Asst. County Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of commercial exhibition of obscene material; trial was before the court without a jury; the punishment assessed was confinement in the county jail for 120 days and a fine of $1,000.

The appellant, who was charged by information with the offense of commercially exhibiting an obscene motion picture, challenges the sufficiency of the evidence. We hold the evidence is insufficient to support the verdict and reverse the judgment.

Appellant asserts that the State failed to show that he commercially exhibited the subject film, “Deep Throat.” A summary of the evidence is necessary. On September 19, 1974, Officer Tampio of the Killeen Police Department received a phone call “cordially” inviting the police to a showing of the film “Deep Throat.” Officer Tampio and Officer Draper went to the Roaring Twenties Club in Killeen and there viewed the film. Afterwards, Officer Tampio remained at the club while Officer Draper returned to the police station to prepare an affidavit to obtain search and arrest warrants. After obtaining a magistrate’s signature on the warrants, Officer Draper returned to the club, called Captain Griffin of the Killeen Police Department and the three officers executed the warrants, arrested the appellant and seized the film.

The officers neither paid nor were asked to pay to view the film. Members of the press who saw the film on the day in question were not charged admission. Defense witness Robert Staley testified that he saw portions of two screenings on the day appellant was arrested and that he was not charged admission on either occasion. The appellant stated to the officers that he was presenting a free public screening of the film; he further stated that he would later charge a $5.00 admission fee in addition to a $1.50 minimum drink charge.

Officer Tampio testified that during the time he was in the club he observed a man enter the building, following which the cash register opened and closed; the man then took a seat and watched the film. The officer did not see any money change hands nor did he hear any conversation between the man and the appellant.

Y.T.C.A. Penal Code, Sec. 43.23, provides in part:

“(a) A person commits an offense if, knowing the content of the material:
“(1) he sells, commercially distributes, commercially exhibits, or possesses for sale, commercial distribution, or commercial exhibition any obscene material.”

The new Penal Code does not define the term “commercially exhibit,” but V.T.C.A. Penal Code, Sec. 43.21(5), provides that:

“(5) ‘Commercially distribute’ means to transfer possession for valuable consideration.”

It would follow that “commercially exhibit” would mean to exhibit in exchange for valuable consideration. Cf. Hess v. State, 536 P.2d 366 (Okl.Cr.App.1975); Oden v. State, 401 S.W.2d 254 (Tex.Cr.App.1966). It is clear that no one was seen paying an admission charge. The State contends and we agree that valuable consideration is not limited to money. Stanley v. Schwalby, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960 (1896); 13 Tex.Jur.2d, Contracts, Sec. 40, p. 166. The State then speculates that the appellant hoped to receive preferential treatment from the Killeen Police Department in return for his allowing police officers to view the film free of charge. The record is devoid of any evidence to support this theory. Further, it is difficult to perceive how being arrested would suffice as “preferential treatment” or “valuable consideration.” The State also urges that the appearance of members of the press was consideration flowing to the appellant, inasmuch as local media refused advertising space to movies such as “Deep Throat.” The record does not reflect that the local media refused advertising space for movies shown at the Roaring Twenties Club. Further, in light of the record before us, the mere appearance of members of the press does not present “valuable consideration.” The press did not agree to give coverage of the film in exchange for a free screening; the members of the press did not incur obligations by viewing the film. There is no direct evidence in the record before us that the appellant commercially exhibited obscene material to anyone.

The circumstantial evidence of commercial exhibition is likewise insufficient to support the conviction The record reflects the following:

“Q. [DEFENSE ATTORNEY]: So you saw the negro male walk in and— well, was Mr. Smith operating the projector at the time?
“A. [OFFICER TAMPIO]: No, Sir, he was not. He was down by the cash register.
“Q. Down by the cash register here?
“A. Yes, Sir, he was.
“Q. And you heard the cash register ring but did not see anyone give anyone any money?
“A No, Sir, I did not.
“Q. And you did not hear him say anything to the negro male?
“A. No, Sir.
“Q. So you were just sitting back there and you heard the cash register ring at about the same time you saw the negro male walk in?
“A. The negro male came in, the cash register rung, there where Mr. Smith was at the time, and then he came in and had a seat there.
“Q. Did you ever see anybody pay any money?
“A. No, I can’t recall, Sir.”

A conviction based upon circumstantial evidence cannot be sustained if the circumstances proved do not exclude every other reasonable hypothesis except that of the guilt of the accused. Proof amounting only to a strong suspicion or a mere probability of guilt is insufficient. Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973); Randolph v. State, 505 S.W.2d 845 (Tex.Cr.App.1974); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Gulmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969).

The mere fact that a man entered the club and shortly thereafter the cash register opened and closed does not exclude every other reasonable hypothesis except the guilt of the appellant even though it may cast suspicion upon him. We find the evidence, both direct and circumstantial, insufficient to show that the appellant, knowing the content thereof, commercially exhibited obscene material.

If the appellant had been charged with the possession of obscene material for the purpose of commercial exhibition, the evidence in the record might have supported a conviction for that offense.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority holds that the evidence is insufficient to show that the exhibition of the film “Deep Throat” was commercially done. A showing was made before members of the press and police department as well as what appeared to be a paying guest. One of the viewers went by the cash register. “The cash register rung, there where Mr. Smith [appellant] was at the time, and then he came in and had a seat there.”

The radio and newspaper people were present at the invitation of appellant. Appellant stated that he intended to charge $5.00 for admission to later exhibitions of the film. The film was apparently exhibited in part for advertising purposes. For this he no doubt expected a commercial or monetary gain in the showing of the film. The evidence in this case amounts to a commercial exhibition of the film. I dissent to the reversal of this conviction.


author: McDONALD, Chief Justice.

text:
    Mary S. GUTIERREZ, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 5516.
    Court of Civil Appeals of Texas, Waco.
    Dec. 4, 1975.
    Law Offices of Gilbert Prud’Homme, Elvis G. Schulze, Austin, for appellant.
    Clark, Thomas, Winters & Shapiro, E. Barham Bratton, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment rescinding an order of reinstatement of a compensation case.

On March 4, 1975 the Industrial Accident Board made final awards of $5,603.98 and $1,175.78 to Mary S. Gutierrez, Claimant (and appellant here).

On March 21, 1975 and March 25, 1975 the Carrier (appellee here) filed suits in 200th District Court appealing such awards. By March 28, 1975 Claimant Gutierrez had been served in both cases.

On April 3,1975 Claimant filed her Original Answer in both cases, consisting of a general denial and seeking such other and further relief to which she could show herself entitled. Also on April 3, 1975 Claimant filed motion to consolidate the two causes; and on April 9, 1975 paid jury fees in both cases, and such cases were set for trial for May 19, 1975.

On April 11, 1975 (two days after the time had run for Claimant to file her own lawsuits), the Carrier filed its motion for nonsuits in both cases, and on the same day, April 11, 1975 the trial court granted such motions and dismissed both cases.

On April 17, 1975 Claimant filed motions in both cases to reinstate such cases. On the same day April 17, 1975 the trial court entered orders reinstating both cases. On April 17, 1975, after such cases were reinstated on the docket of the court, claimant filed cross-actions for affirmative relief in both cases. On June 2, 1975 the trial court (acting through a different Judge) entered judgment “rescinding” the April 17, 1975 “orders of reinstatement”.

Appellant Gutierrez appeals on one point contending the trial court erred and abused its discretion in “Rescinding the Orders to Reinstate”.

The two cases have been consolidated upon joint motion of the parties.

When appeal from the award of the Board was perfected, the award of the Board was “vacated and is no longer in force”, and “the burden of obtaining judgment for compensation in the court . rests upon the claimant.” Zurich General Accident & Liability Ins. Co. v. Rodgers, 123 Tex. 313, 97 S.W.2d 674; Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677.

And claimant’s general denial did not put in issue her claim for affirmative relief, a cross-action being necessary. Hardware Mutual Cas. Co. v. Clark (Waco, Tex.Civ.App., er. dismd.), 360 S.W.2d 921.

The carrier here contends it had an absolute right to a nonsuit under Rule 164 TRCP.

The carrier’s nonsuit was granted on April 11, 1975, without notice to claimant. As soon as claimant learned of such order, April 17, 1975, claimant filed motion to reinstate the cause, vacate the order of dismissal and continue the cases on the docket. These motions were granted by the trial court on the same date April 17, 1975.

The trial court had jurisdiction to reinstate the cases, and under the facts the trial court was authorized to vacate the dismissals and reinstate the causes. Federal Underwriters Exchange v. Read, 138 Tex. 271, 158 S.W.2d 767; Rule 329b par. 5, TRCP.

And on the same date April 17,1975 while such causes were pending on the docket of the trial court, claimant filed her cross-actions for affirmative relief.

Thereafter on June 2,1975 the trial court entered judgments in the two cases rescinding the orders of reinstatement. He entered such judgments while claimant’s cross-actions for affirmative relief were pending. We think the trial court not only abused its discretion in so doing, but did something it was not permitted to do. Rule 164 TRCP.

Appellant (claimant’s) point is sustained. The judgments of the trial court are reversed and the consolidated causes are remanded for trial on claimant’s cross-actions.

Reversed and remanded.


author: TITUS, Judge. BILLINGS, Chief Judge

text:
    Albert Harvey CLARK, Plaintiff-Respondent, v. Thomas P. McCLOSKEY, Jr., Defendant-Appellant.
    No. 9792.
    Missouri Court of Appeals, Springfield District.
    Dec. 5, 1975.
    C. H. Parsons, Jr., Dexter, L. Michael Lorch, Piedmont, for plaintiff-respondent.
    Wendell W. Crow, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Traffic at the intersection where the daylight accident in question occurred was controlled by 4-way stationary stop signs. Northbound plaintiff obeyed the stop sign intended for his observance before driving into the intersection. Eastbound defendant did not heed the sign at the west edge of the intersection, thereby causing the front of his automobile to collide with the left rear wheel of plaintiff’s “bob truck.” Defendant admitted his negligence but has appealed, nevertheless, from the $10,000 judgment entered on the jury’s verdict claiming certain errors to be discussed anon. Because of our disposition of this appeal, we need tend to only two of the six points raised by the defendant.

Defendant initially asseverates that the trial court erred in failing to sustain his motion for judgment n. o. v. (Rule 72, V.A. M.R.) because plaintiff was guilty of contributory negligence as a matter of law. Of course, the burden of proving plaintiff’s contributory negligence rested on defendant. Since the jury could believe or disbelieve defendant’s evidence on that issue, even though it stood uncontradicted, we ignore the evidence favorable to defendant, and observe that proof of plaintiff’s negligence must come from evidence adduced by him or which he conceded to be true, or from proof by defendant which leaves no room for other reasonable inferences, or from a combination of them, to permit a court to properly conclude that plaintiff was contributorily negligent as a matter of law. Davenport v. Wabash Railroad Company, 435 S.W.2d 641, 643[2-4] (Mo. banc 1968). Therefore, we recast the evidence in light of that rule.

After plaintiff halted his truck at the south edge of the intersection in obeyance to the stop sign, he looked to his right (east) and to his left (west) and saw “there wasn’t nothing coming.” Plaintiff opined he could see west down the intersecting east-west highway “probably . . . two or three hundred feet.” While he agreed on cross-examination “[tjhere is a possibility” he could have seen westward “for a distance of half a mile,” plaintiff concluded “I looked down there far enough to see if there was anything coming, didn’t see anything.” Plaintiff, then looking ahead, proceeded northward into the intersection. When the front of plaintiff’s truck was nearing the north edge of the intersection and traveling “between 5 and 10 miles an hour,” plaintiff’s attention was attracted to his left (west) by the sound of tires skidding on the pavement. It was then that plaintiff for the first time saw defendant’s eastbound car “about 12 or 13 feet away” traveling at a speed unknown to plaintiff. The impact of the front of defendant’s automobile with the left rear wheel of plaintiff’s truck, knocked the truck around so it stopped “headed back west.” The tires on defendant’s car left skid marks of “somewhere between 45 and 50 feet,” part of which were “in the proper right hand lane for eastbound traffic [but] right at impact” they veered to the left over the center line. As “admissions against interest,” plaintiff read portions of defendant’s deposition which included the following: “Q. About how fast were you going when this accident occurred . . .? A. . . .1 would say 25 miles an hour. You mean at the time of the actual point of impact? Of course, I had been braking.”

As expected, defendant champions the well-known rule that where a duty to look exists, plaintiff’s failure to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law. This general rule, however, does not alone comport with all the considerations with which a court must contend in determining negligence as a matter of law vel non. What constitutes negligence in failing to keep a lookout in a particular direction at any certain place or time depends upon the then existing circumstances and conditions and is usually a jury question. Hammon v. Gentemann, 423 S.W.2d 5, 7[2] (Mo.App.1967). Moreover, as said in Albert H. Hoppe, Inc. v. St. Louis Public Service Co., 227 S.W.2d 499, 502[3, 4] (Mo.App.1950), affirmed on this point 235 S.W.2d 347, 348 (Mo.1951), “. . . ‘In order for contributory negligence to legally bar the plaintiff’s recovery, it is not sufficient that plaintiff was negligent and that such negligence contributed to the cause, or was a contributing cause, of Ms injury — a contributing cause but for wMch the injury would not have been sustained. The negligence of plaintiff must have been a proximate cause, that is, a “proximate cause” as the term is used in expressing a cause which may be reasonably regarded as a direct, producing or efficient cause; or as entering into and forming a part of the direct, producing or efficient cause of the injury. . . .’ This follows the earlier statement that ‘The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct, producing, and efficient cause of the casualty, and absent which the casualty would not have happened.’ ” See also Meitz v. Garrison, 413 F.2d 895, 898 (8th Cir. 1969), and cases there cited.

In pressing his claim as to plaintiff’s negligence, defendant stresses his own testimony which we are admonished to ignore. Instead, in deciding the issue, we are obliged to take the view of the evidence most favorable to plaintiff. Tribout v. Kroger Grocery & Baking Co., 191 S.W.2d 261, 263[1] (Mo.App.1945). From such a view we find that plaintiff could “probably” see some 200-300 feet westward, that he did “look down there far enough to see if anything was coming” and when he ascertained no traffic was approaching within his view, he directed his attention northward as he drove in that direction into the intersection. The jury had pictorial evidence of the intersection from which it could have determined that plaintiff’s estimate of his sight distance was correct and that the “possibility” of seeing one-half mile to the west from plaintiff’s stopped position was untenable; it also had the right to disbelieve defendant’s testimony to the effect that defendant’s vehicle was within plaintiff’s range of vision when he looked and to believe plaintiff’s version to the contrary. But be all that as it may, the exact question is, “Was the quantum of the contributory negligence charged sufficient to prevent recovery?” We think not. Although plaintiff had a duty to keep a lookout, and albeit one cannot be held to the impossibility of looking laterally and ahead at the same time, it must be remembered that this was a 4-way stop intersection and had plaintiff seen the defendant’s automobile approaching at the speed claimed by defendant, there would have been no reason for him to then anticipate that defendant would not stop in violation of the stop sign. Since any negligence of which plaintiff may have been guilty would also have to be a proximate cause or a producing cause of the casualty, it cannot be held that he was guilty of contributory negligence as a matter of law and under all the evidence it became a jury question.

Defendant’s additional point which we shall discuss refers to the giving of plaintiff’s damage instruction in the exact words of MAI 4.01. It is claimed by defendant that since more than one occurrence was mentioned in the evidence, the word “occurrence” should have been modified to limit the jury’s consideration to the single occurrence produced by defendant as directed in “Notes on Use” under MAI 4.01.

The accident with which we are concerned occurred February 14, 1973. Plaintiff did not complain of injury at the accident scene, but, according to plaintiff, shortly after the collision he “started feeling bad” with pain in the “lower part of my back on the right hand side [which] kept getting worse. Two days later on February 16, plaintiff consulted Dr. Northington who found “spastic, ropy type muscles in [plaintiff’s] lumbar area” which he diagnosed as “acute muscle spasms.” Dr. Northington treated plaintiff in the hospital until February 21 with pelvic traction, “pills and shots.” When discharged from the hospital, plaintiff’s “pain had lessened tremendously.” Following discharge, plain-tiff saw Dr. Northington five times to and including March 19. Plaintiff was examined by an orthopedic surgeon at Dr. North-ington’s request, and save for 5 or 6 chiropractic treatments plaintiff arranged for himself, plaintiff had not received any care or treatment for his injuries for one year before the case was tried on April 5, 1974. Plaintiff returned to his job as brick mason “full time” on April 2,1973. On the day of trial, plaintiff said he still had “sharp pains” in his back “mostly at night” and that “my legs get numb . . . my legs go to sleep over it.” Medical expenses incurred by plaintiff, including “around forty some dollars” he paid the chiropractor, were $381.25.

On cross-examination plaintiff acknowledged he had been previously injured in an accident on July 16, 1968, when a scaffold fell on him and that he had filed a workmen’s compensation claim by reason thereof. Although plaintiff denied this accident had resulted in any low back injury or leg numbness, in his December 30,1968, deposition taken in the compensation matter, he had testified to the following effect: The falling scaffold had struck plaintiff “in the back of the head . . . across the upper part of [the] back [and] down on his hip.” When asked if most of his pain from the scaffold accident was “in your neck area,” plaintiff answered, “A lot of it was but a lot of it was still down here in my back. ... In the lower part of [my] back . . . that is what bothers me now really worse.” He testified at the deposition that his back “hurts pretty bad . it is just numb back there [indicating around his belt line] and my legs at nights get numb . . just go to sleep and I have to rub them.” From the accident in July 1968 until the time of the December 1968 deposition (about 6 months), defendant related that with the exception of two or three days, he had been physically unable to do any work or to engage in any kind of activity requiring physical exertion. The workmen’s compensation claim was settled for $2,080 and in addition, the employer and insurer agreed to pay $1,262.73 for medical expenses incurred by the plaintiff.

Three doctors testified at the trial. In addition to Dr. Northington, plaintiff’s treating physician, two examining doctors (one each for plaintiff and defendant) related the results of their examinations. Plaintiff’s examining doctor opined plaintiff had chronic myositis of the lumbar paraverte-bral muscles, being somewhat worse on the right side; defendant’s examining physician could not agree to the chronic myositis diagnosis although he found some tenseness in plaintiff’s back muscles. All agreed plaintiff had a spondylosis of the 5th lumbar vertebra with a resulting spondylolis-thesis. This condition, undoubtedly congenital in origin, was of long standing and gives back instability that is subject to pain.

One of the principal issues in the present case was whether plaintiff’s disability resulted from the vehicular accident of February 14, 1973, for which defendant would be liable, or resulted from the scaffold accident of July 16, 1968, or from the congenital condition in his back for which defendant would not be liable. It seems clear from the foregoing statement of facts that the jury could believe that plaintiff’s injuries and damages were produced, in whole or in part, by the two accidents and the congenital defect in plaintiff’s back, or by any one alone, or by any two and not the other. The verdict, when viewed in conjunction with MAI 4.01, does not give us a clue as to what the jury actually believed and found. In such circumstances, it was required that MAI 4.01 be modified in response to its Notes on Use so as to limit the jury to a consideration of the results of the accident which occurred February 14, 1973, the only occurrence for which defendant was liable in determining the amount of compensation. Failure to so modify was error prejudicial to defendant. Russell v. Terminal Railroad Ass’n of St. Louis, 501 S.W.2d 843, 847[2] (Mo. banc 1973); Vest v. City National Bank and Trust Company, 470 S.W.2d 518, 521-522[2, 3] (Mo.1971); Homm v. Oakes, 453 S.W.2d 679, 681-682 (Mo.App.1970); Jurgeson v. Romine, 442 S.W.2d 176, 177-178[4, 5] (Mo.App.1969); Miller v. American Insurance Company, 439 S.W.2d 238, 240[1] (Mo.App.1969). Plaintiff’s arguments in defense of giving MAI 4.01 without modification are answered by the authorities just cited and need not be repeated here.

The other errors claimed by defendant in his points relied on hopefully will not be repeated upon retrial and so do not require attention at this time. For the reasons stated, the judgment nisi is reversed and the cause is remanded for a new trial on all issues except as to defendant’s negligence which has been admitted by him.

STONE, J., concurs.

BILLINGS, C. J., concurs and files separate concurring opinion.

BILLINGS, Chief Judge

(concurring):

In view of the rulings by our Supreme Court in the cases cited in the principal opinion on the issue of modification of MAI 4.01, my concurrence is compelled. However, I want to point out the dilemma facing the trial court in giving MAI 4.01 in a situation such as the present case.

The Notes on Use dictate a modification substituting some descriptive term for the word “occurrence” so as to limit the jury to a consideration of the specific occurrence for which the defendant was liable. But what descriptive term will pass muster on appellate review? Two of the three dissenting judges in Russell v. Terminal Railroad Ass’n of St. Louis, supra, would correct MAI 4.01 so as to require the date of the event in question. Without some guidance from our Supreme Court a trial judge runs the risk of employing an unapproved descriptive term or an unauthorized modification of an approved instruction.

The dissent in Russell also points out that under existing law a party deeming an instruction too general has the obligation to offer a clarifying or limiting instruction in order to preserve error. In the absence of enforcement of this rule the trial court is placed in the unenviable position of being sandbagged by the inaction of the derelict party.

      . MAI 4.01 — “If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the occurrence mentioned in the evidence.”

      . Notes on Use — “The word ‘occurrence’ should be adequate except in cases where there is evidence that two different occurrences produced the injury with defendant being responsible for only one. In such cases counsel will need to substitute some descriptive term which will properly limit the jury to the occurrence produced by defendant.”


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Arthelle McCLAIN, Jr., Appellant.
    No. 27251.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.

      Joseph H. Moore, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals from his conviction by a jury of first degree murder with a sentence to life imprisonment. He does not challenge the sufficiency of the evidence to support the verdict, so only sufficient facts will be stated to place the issues raised on this appeal in proper perspective.

On September 24, 1973, a robbery was attempted at a Safeway store, in the course of which a security guard, Virgil McGee, was shot and killed. Although two eye witnesses testified, neither could identify defendant as the killer. However, police officers testified to an oral confession by the defendant. In addition, one of the State’s witnesses, Linda Johnson, testified that defendant while in her home on the night of September 24,1973, the date of the shooting, stated that he had gone to the Safeway store to rob it and that he had shot McGee. The case was submitted to the jury on the theory of felony-murder under MAI-CR 6.19.

I.

For his first point on this appeal, defendant complains of the admission of State’s Exhibit 1, consisting of a photograph of the upper portion of McGee’s dead body. Defendant points out that his counsel made a formal admission in court that McGee had been killed by a .32 caliber bullet, and defendant now insists that the photograph in question was not relevant to prove anything which had not already been covered by that admission. His argument continues that “the only possible reason for the State’s introduction into evidence and the passing of the photograph to the jury was to enflame them against the defendant.”

Some cases do hold that admission of a photograph of a dead body may be prejudi-cially erroneous if the defendant has admitted all the relevant facts which the photograph has any tendency to prove. State v. Robinson, 328 S.W.2d 667, l.c. 671 (Mo.1959) is the leading case. See also State v. Floyd, 360 S.W.2d 630, 632-633 (Mo.1962) and State v. Parsons, 513 S.W.2d 430, 439 (Mo.1974). However, Robinson and like cases can be distinguished on two grounds. In the first place, the Robinson opinion states that to designate the pictures there involved as being gruesome was “a gross understatement.” That opinion goes on to describe the photographs there as “extremely obscene, offensive, vulgar, horrid, and repulsive.” Exhibit 1 in this case does not begin to meet any of those characterizations, but instead is rather innocuous. Absent any inflammatory nature, the photograph would seem at worst merely cumulative and therefore non-prejudicial.

In the second place, Exhibit 1 does show an important fact not admitted by the defendant. The admission offered by defendant during the course of the trial was simply that McGee had been killed by “a .32 caliber bullet”; that McGee had been killed on September 24,1973, with “a .32 bullets”; and that McGee was killed “by gunshot wound.” The oral confession testified to by the State’s witnesses was to the effect that defendant had shot two bullets at McGee, and the photograph, Exhibit 1, does show two bullet wounds. Thus the photograph corroborates the confession in a significant detail which is missing from the admission offered by defendant in open court. The admission is confined to a singular shot and a singular wound, or at least it is ambiguous with respect to the possibility of there being more than one shot and one wound. The State was entitled to offer and exhibit the photograph in order to prove that defendant’s oral confession to the police corresponded with the physical facts.

II.

Defendant next complains that the State was permitted to cross-examine defendant’s wife beyond the scope of her direct examination, in contravention of § 546.260 RSMo 1969. Defendant had called his wife Leanna McClain as a witness to contradict Linda Johnson who had testified on behalf of the State that defendant had stated in her home in the presence of her and Mrs. McClain that he, the defendant, had shot McGee in the course of an attempt to rob the Safeway store. Mrs. Johnson also testified that on that occasion defendant had a bandaged hand. Mrs. McClain, on the other hand, testified that while she had frequently been in the Johnson home, she had never heard defendant make any such statement nor could she remember him ever being in the Johnson home while having a bandaged hand. In the course of this direct testimony Mrs. McClain disclaimed the ability to remember any specific date upon which she had been in the Johnson home.

The prosecutor after considerable cross-examination succeeded in getting Mrs. McClain to admit that she had been in the Johnson home on the evening of September 24, 1973, but she then claimed that on that occasion she was there alone, unaccompanied by defendant. The prosecutor further attempted, although unsuccessfully, to secure an admission from Mrs. McClain that defendant had an injured hand on the evening of September 24, 1973, and she disclaimed being able to remember whether she had made a statement to the police on this subject.

This probing constituted legitimate subject of cross-examination by the prosecutor. This related to the precise matters disputed by the conflicting testimony of Mrs. Johnson and Mrs. McClain. This cross-examination therefore fell directly within the permission of § 546.260 which provides that if a wife be called to testify on behalf of the defendant then she “shall be liable to cross-examination, as to any matter referred to in [her] examination in chief, and may be contradicted and impeached as any other witness in the case.”

III.

Closely related to the point discussed immediately above, defendant also argues that the State was improperly permitted to contradict Mrs. McClain by a prior inconsistent statement given by her to the police. Defendant says that this prior inconsistent statement was not proper rebuttal and that it went to impeachment on a collateral matter.

Attending to the latter part of that argument first, the prior inconsistent statement did not go to a collateral matter. Mrs. McClain had been called by defendant for the specific and sole purpose of contradicting Mrs. Johnson who had supplied a major part of the State’s case by testifying to defendant’s admission that he had shot McGee while attempting a robbery of the Safeway store. The State had every right to attack Mrs. McClain’s veracity as to that matter which was the one and only subject for which she had been called to testify by the defense.

Defendant’s major emphasis under this point, however, is that Mrs. McClain’s statement to the police did not really rebut her testimony to the effect that she could not remember a specific date when she was in the Johnson house with the defendant and that she could not recall the date upon which defendant had an injury to his hand. On this point, defendant argues that “the only proper cross-examination of the witness or rebuttal testimony would be that she in fact did remember being at the Johnsons on the 24th or 26th or that she did remember the date of the injury to Appellant’s finger.”

Defendant’s understanding as to the proper scope of cross-examination in this respect is mistaken. If his theory were true, that would permit virtually every witness an easy escape from impeachment. All that a reluctant witness would have to do would be to disclaim an ability to remember, and then the opponent would have the virtually impossible chore of proving that the witness did in fact have a present memory of the fact in question. The law is not so accommodating to evasion. The true rule on this subject is that a witness can escape impeachment by prior inconsistent statement only if the witness makes a clean-cut admission with respect to the fact contained in the prior statement. This firmly established legal principle was well stated in the early case of Peck v. Ritchey, 66 Mo. 114, l.c. 119 (1877):

“A witness cannot avoid contradiction by equivocating, nor is the opposite party to be deprived of the right to show that the witness has made contradictory statements, either by his feigned or real forgetfulness. Nothing but an admission that he made the very statement alleged, will deprive the opposite party of the right to prove it.”

To the same effect: State v. Carter, 259 Mo. 349, 168 S.W. 679, 680 (1914); State v. Douglas, Mo.App., 529 S.W.2d 162, decided October 6, 1975; McCormick on Evidence, 2nd Edition (1971), p. 72.

IV.

Defendant next complains of the trial court’s refusal to declare a mistrial because of an unresponsive statement by one of the State’s witnesses to the effect that defendant on an occasion different from the crime charged “jumped up and pulled a pistol on me.” This statement by the witness came as an unexpected surprise to the prosecuting attorney who requested the court to sustain the defendant’s objection to the statement and to instruct the jury to disregard it. The court did so instruct the jury and overruled defendant’s motion for a mistrial.

Substantially the same situation occurred in State v. Walker, Mo.App., 531 S.W.2d 55, being decided concurrently herewith. The controlling rule there stated is that when a witness unexpectedly volunteers an inadmissible statement, the nature of the action called for rests largely within the discretion of the trial court, that the trial judge has a duty to evaluate the whole situation to ascertain whether some other remedy short of a mistrial will cure the error, and that the appellate court reviews that decision only to verify that there has been no abuse of discretion.

In the present case the trial judge considered the particular circumstances and held a lengthy colloquy with counsel in respect thereto. The record demonstrates a competent grasp by the trial judge of the nature of the problem and the factors to be taken into account. The court said in part:

“The question really gets down to concern, I guess, on Mr. Moore’s [the defense attorney] part as to whether or not a jury can follow the instructions of the Court to disregard evidence that was unexpectedly given in a case. If I didn’t believe they could, I wouldn’t have any hesitation in declaring a mistrial.
“I, personally, at the moment am satisfied that this jury will disregard the voluntary statement that the witness offered; and I am satisfied that this jury will follow any instructions accordingly. If I had any hesitancy or any doubt about that a mistrial would be ordered.”

The trial court had a much better opportunity than this court to evaluate the trial situation, and its exercise of discretion will not be disturbed.

V.

Defendant next complains of a limitation imposed upon his counsel’s closing jury argument. Immediately before closing arguments were to begin the State asked for and received a protective order preventing defense counsel from mentioning the names of Martie Sumner, Floretta Smith or Steven Smith.

The first two of the persons named were Safeway employees who had been interviewed by the police after the McGee killing and whose names had been endorsed upon the information. Steven Smith was an individual named in the statement which the police testified was given to them by defendant, as the driver who had given him a ride from Fairyland Park to 38th and College Streets after defendant had fled from the scene of the crime to Fairyland. Steven Smith had also been interviewed by the police and his name also had been endorsed in the information. None of these three persons had, however, appeared as a witness in the trial.

The State has no obligation to call all witnesses known to it, and this is true even though the prosecution may have endorsed the name of the person in question upon the information as a potential witness. The failure of the State to call such a witness does not give rise to an adverse inference in favor of the defendant. State v. Davis, 504 S.W.2d 221, l.c. 225 (Mo.App.1973).

Defendant does not challenge that principle of law. However, he contends that his purpose in wanting to mention these three witnesses was not to argue any inference that the witnesses would have testified unfavorably for the State. Defendant undertakes to describe a different purpose to be served by the mention of these three individuals, his explanation in his brief being as follows:

“Rather, Appellant sought to hypothesize in closing argument:
‘If Martie Sumner or Floretta Smith could identify my client as the killer in this case, don’t you think they would have been here before you to so state?
‘If Steven Smith, who drove the assailants from Fairyland Park at 77th & Prospect all the way to 38th & College, were able to identify my client, don’t you think he would have been here to do so?’ ”

No one can know what these three individuals would have testified to had they been called as witnesses, since neither side called any one of them. The only possible purpose for the argument which defendant now says he wanted to make to the jury would be an attempt to get the jury to draw an inference adverse to the State from the fact that those witnesses were not called. None of these witnesses were any more available to the State than they were to the defendant, and under the rule already stated, the adverse inference sought to be suggested by defendant was impermissible. No real difference can be discerned between the form of argument which defendant suggests he wanted to make as contrasted to the direct adverse inference argument which defendant concedes to be impermissible.

VI.

Defendant argues next that the case should not have been submitted under the felony-murder rule because there was no showing of “asportation” or attempted asportation and therefore there was no evidence of a robbery or attempted robbery. In support of this contention, defendant cites State v. Adams, 339 Mo. 926, 98 S.W.2d 632 (1936). Rather than being an authority in his favor, Adams holds directly contrary to his present argument at 98 S.W.2d l.c. 637:

“It is held in many jurisdictions, including Missouri, that when the homicide is within the res gestae of the initial crime and is an emanation thereof, it is committed in the perpetration of that crime in the statutory sense. Thus it has been often ruled that the statute applies where the initial crime and the homicide were parts of one continuous transaction, and were closely connected in point of time, place and causal relation, as where the killing was done in flight from the scene of the crime to prevent detection, or promote escape. The same rule has been followed in cases of attempted robbery where there was no asportation, the robbers being compelled to flee without obtaining any property. That this is the prevailing doctrine in this country is shown by the following cases: [Citing many cases]” (Emphasis added).

All that was required to show a felony-murder was that the killing of McGee was committed in an attempt to perpetrate robbery. Section 559.010 RSMo 1969. The evidence abundantly so showed. Both the confession given by defendant to the police and the admission made by him in the presence of Linda Johnson constituted direct proof on that point. As a matter of fact, this was admitted by defendant’s counsel in his closing argument where he stated: “We are not contesting that the man was shot and that he is dead, and that he was killed in the commission of a robbery.”

VII.

Defendant next argues that the verdict directing instruction, Number 6, failed to comply with MAI-CR 6.19 in that the approved form of instruction requires the name of the “victim” in the first paragraph dealing with the shooting and also in the second paragraph dealing with the attempt to rob. Defendant’s objection is that the victim named in the first paragraph of Instruction Number 6 is Virgil McGee, but that the victim named in the second paragraph is Safeway store. The objection seems to be founded upon the mistaken notion that the murder victim must be one and the same as the robbery victim. There is no such requirement. The murder victim in this case was McGee, but the victim of the attempted robbery was Safeway. Instruction 6 was therefore proper and does not depart from the intention of MAI-CR 6.19.

VIII.

Defendant contends finally that Instruction Number 7, the converse of the State’s verdict director, was erroneous because it concluded that if the jury found the facts as there hypothesized then it must find the defendant not guilty “of murder in the first degree.” Defendant argues that the quoted phrase should have been omitted since it could have confused the jury into believing that defendant might be guilty of some other crime even though not of murder in the first degree. A jury of reasonable men would not be so misled. Moreover, Instruction 7 follows precisely MAI-CR 3.06 and was required to do so under Rule 20.-02(c).

Affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Willie E. TYGART, Appellant.
    No. KCD 27293.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Sloan R. Wilson, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

Defendant was charged under the Second Offender Act with unlawful possession of Lysergic Acid Diethylamide, commonly known as “LSD”, a Schedule I controlled substance. Sections 195.017, 195.020, and 195.200, RSMo Supp.1973. He was found guilty by a jury as charged and the court, after making the requisite findings relative to the Second Offender Act, fixed his punishment at nine years confinement in the Department of Corrections. The matter is before this court on a timely appeal taken by defendant.

Defendant has not challenged the sufficiency of the evidence to sustain the guilty verdict and a fairly terse recitation of the evidence demonstrates why he has not done so.

During the afternoon of July 17,1973, an officer (Harman) of the Kansas City, Missouri, Police Department received information from a reliable informant that defendant was driving a truck of a particular description in the vicinity of 41st and Oak Streets, in Kansas City, and was in possession of some “narcotics” and “weapons”. Additionally, defendant was reported to be leaving for Kansas within the next thirty minutes. The police computer terminal disclosed the existence of two outstanding warrants for defendant’s arrest for traffic violations. The information received from the informant and the existence of the outstanding warrants was made available to two officers (Lynch and Chapman) who subsequently apprehended defendant in his truck near the vicinity of 42nd and McGee Streets, Kansas City, Missouri.

Shortly after defendant was apprehended, Officer Harman arrived at the scene. Defendant was advised by the officers of the two outstanding warrants and was placed under arrest. At the scene defendant’s person was searched by Officer Chapman. The search uncovered two small bottles on defendant’s person containing approximately 150 “tabs” which appeared to the officers to be “narcotics”. While still at the scene of the arrest, Officer Lynch searched the truck defendant had been driving and found another bottle containing approximately 65 “tabs”, which also appeared to the officers to be “narcotics”. Defendant was additionally placed under arrest at the scene for “possession of narcotics”. Subsequent thereto, while still at the scene of his arrest, and after being given a “Miranda” warning, defendant, in response to a question asked by Officer Chapman, said with reference to the contents of the two bottles seized from his person, “It is LSD. Goes for $2.00 a hit.” A subsequent chemical analysis of the contents of the three bottles respectively seized from defendant’s person and the truck he was driving revealed that the “tabs” were Lysergic Acid Diethylamide, a Schedule I controlled substance.

Defendant raises but one issue on appeal — that the trial court erred in refusing to sustain various motions made by him for a mistrial predicated upon the state’s injection before the jury of “crimes” other than the one for which he was standing trial. As hereinafter demonstrated, defendant assiduously pursued the collective aspects of the lone issue raised on appeal from the time the state made its opening statement, thence throughout the remaining course of the trial, and, as well, in his motion for a new trial.

The factual core of the single issue presented, as delineated by defendant in his brief, consists of the following sequential events.

During the state’s opening statement, the assistant prosecuting attorney presenting the case said: “The evidence will be that after the defendant, Willie Earl Tygart, was placed under arrest . he was asked by one of the two patrolman what the two pill bottles contained, that were removed from his left front pocket; and the defendant freely admitted to the officers that it was LSD, two, I think; and that he was selling it for $2.00 a pop or a sale.” Defense counsel timely objected thereto on the ground that the latter portion of the state’s opening statement improperly told the jury that defendant was guilty of selling narcotics, a crime totally unrelated to the one for which he was standing trial. The only relief sought by defense counsel was a request for the trial court to declare a mistrial. The record discloses that defense counsel studiously avoided requesting any relief short of a mistrial because the trial court, of its own volition, before denying the request to declare a mistrial, advised defense counsel that it would entertain an “appropriate motion” regarding the objectionable statement. Defense counsel declined to accept the trial court’s invitation to move for some form of relief less drastic than declaration of a mistrial. Thus, the trial court was effectively precluded by defense counsel from considering any corrective action whatsoever short of a mistrial. A somewhat analogous situation confronted the court in State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972), which involved a response by one of the state’s witnesses which the accused claimed was prejudicial because it assailed his character. There, as here, the sole and only corrective relief sought by defense counsel was a request for a mistrial. In upholding the trial court’s refusal to declare a mistrial the court in Guckovich, 1. c. 24, pungently stated: “We think it is significant that the only relief defendant sought was a mistrial. It is our view that he should have asked also that the statement be stricken and the jury ordered to disregard it. In that way the court could have considered action short of a mistrial.” The court in Cuckovich noted, 1. c. 24, as does this court, that a trial court occupies a position vastly superior to that of an appellate court for evaluating claimed prejudicial matters and the possibility of expunging them rather than resorting to the drastic measure of declaring a mistrial. In the instant case the trial court obviously con-eluded that it was inappropriate to declare a mistrial because expurgatory relief existed to cure any objectionable features of the state’s opening statement. In view of the nature of the matter complained of and defense counsel’s declination to countenance any curative relief short of a mistrial, this court is unwilling to hold that the trial court abused its discretion in refusing to declare a mistrial at this juncture. For reasons later set forth herein, it is worthy of mention that the trial court, in denying defense counsel’s request to declare a mistrial, noted, inter alia, that “. . . such evidence would have to do with the knowledge and nature of the substance that the defendant is charged with possession of at the time . . . .”

During the course of the state’s direct examination of Officer Lynch, the state elicited that defendant, with reference to the contents of the two bottles removed from his person, stated in Lynch’s presence at the scene of the arrest, “It is LSD. Goes for $2.00 a hit.” Defense counsel objected thereto “on the basis that the prosecutor has adduced evidence of crimes not charged against the defendant.” Defense counsel followed up his objection with a single claim for curative relief — a motion for a mistrial. Again, the trial court refused to declare a mistrial. Although all concerned apparently construed “Goes for $2.00 a hit” as meaning “I [defendant] am selling it [LSD] for $2.00 a hit”, it appears equally susceptible of being construed as meaning “I [defendant] purchased it [LSD] for $2.00 a hit.”

During defense counsel’s recross-examination of Officer Harman, the record discloses the following questions asked to which the following answers were given:

“Q. Officer, did you have an opportunity to talk to the defendant at the station?
A. Yes, sir; I did.
Q. Did he tell you what he did for a living?
A. Yes, sir. He stated he pushed narcotics parttime; and I don’t recall what else he said.”

Defense counsel objected thereto on the ground that the answer to the last question constituted evidence of crimes other than the one for which defendant was being tried, and again limited his request for relief solely to declaration of a mistrial. The trial court again denied defense counsel’s request to declare a mistrial. In refusing to accede to defense counsel’s request for a mistrial on this occasion, the trial court (out of the presence of the jury) observed that defense counsel had “opened the door” and he could not find, as claimed by defense counsel, that Officer Harman “took an unfair opportunity to unload” on him. The record is totally devoid of any indication that Officer Harman was acting in bad faith or that he was intentionally bent on injecting prejudice into the case to the detriment of defendant. The record, at best, shows that Officer Harman gave a natural, spontaneous and wholly responsive answer to the precise question posed to him by defense counsel. Such being the case, defendant is in no position to presently drape the responsive answer with a charge of prejudicial error since he “invited” the complained of disclosure. As noted in State v. Brown, 463 S.W.2d 821, 823 (Mo.1971), when defense counsel “gets into deep water” because of a disclosure he himself invited on cross-examination “it will be his own fault.” Any inclination of the trial court in the instant case to declare a mistrial was obviously dulled by the fact that counsel for defendant invited the complained of disclosure. This circumstance, coupled with the fact that the trial court was not presented with a choice of some form of corrective relief short of a mistrial, dulls any inclination on the part of this court to label the trial court with an abuse of discretion for not declaring a mistrial.

Lastly, during the state’s closing argument two incidents of similar import occurred. The assistant prosecuting attorney in his closing argument contended before the jury that “. . . after being asked by Officer Lynch what these two bottles contained, you will recall his — Officer Chapman’s testimony, defendant said ‘They’re LSD and they go for $2.00 a trip.’ . . . or words to that effect; I’m sure you will remember — .” Defense counsel objected thereto — “on the basis that the prosecutor has again told the jury that there may have been a sale of narcotics, which the defendant is not charged with” — and once again limited his request for relief to a mistrial which the trial court denied. Immediately after the trial court’s ruling the prosecuting attorney argued to the jury as follows: “And after numerous questioning by Mr. Wilson, in cross-examination of Officer Harman, where he asked Officer Harman whether he questioned the defendant as to his occupation. I am sure that at the close of last night’s evidence you will remember Officer Harman’s answer that this defendant, Willie E. Tygart, gave: he said, ‘Yes; I’m a parttime narcotics pusher.’ ” Again defense counsel lodged an objection, on the ground that the argument related to a crime or crimes other than the one which defendant was charged with, and his claim for relief was again relegated solely to a request for a mistrial. Consistent with its prior rulings, the trial court declined to declare a mistrial. At this point, however, the trial court, of its own volition, absent objection of any kind by defense counsel, orally instructed the jury as follows: “Ladies and gentlemen of the jury: You are instructed by the Court that this defendant is not charged with the sale of a controlled substance.” Thereafter, the assistant prosecuting attorney continued the state’s closing argument and, among other things, informed the jury that the “State does not wish to imply that he is charged with the sale; and as I said before, the Instruction Number 4 charges this defendant only with possession, knowing possession of LSD;

Both defendant and the state, with unanimity, contend that ultimate disposition of the single issue presented on appeal is controlled by a well settled principle of law obtaining in this state — evidence of separate and distinct crimes other than the one for which an accused is standing trial is inadmissible unless it has some “legitimate tendency” or “logical relevancy” to establish the accused’s guilt of the crime for which he is being tried. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923 (1947); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954); and State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967). The cases just cited characterize evidence of certain extraneous crimes in certain given circumstances as “exceptions” to the obtaining rule. Defendant does not question the legal propriety of the evidentiary matters complained of being the subject of legitimate comment by the state in its opening statement and closing argument if, in fact they had some “legitimate tendency” or “logical relevancy” to establish defendant’s guilt of the crime for which he was charged. However, the state and the defendant are polarized with respect to whether the controversial evidence and comments had a “legitimate tendency” or “logical relevancy” to establish defendant’s guilt of possession of Lysergic Acid Diethyl-amide. Defendant implacably argues that evidence that he was engaged in the sale of narcotics, whether solicited by the state or inadvertently solicited by him, was both inadmissible and immune from comment by the state because (1) it had no “legitimate tendency” or “logical relevancy” to prove his guilt of possession of a controlled substance and (2) it did not fall within any of the recognized “exceptions” to the obtaining rule. With like implacability, the state argues otherwise.

Denominating the admissibility of certain extraneous crimes in given circumstances as “exceptions” to the obtaining rule is somewhat of a misnomer. What have been denominated as “exceptions” more appropriately lend themselves to being characterized as extraneous crimes that have a “legitimate tendency” or “logical relevancy” to prove an accused’s identity or some or all of the elements of proof of the crime for which he stands charged. A similar observation was made by Division One of this court in State v. Randall, Mo.App., 530 S.W.2d 407, handed down November 3, 1975.

With the above in mind, this court’s attention now logically focuses on the scope and nature of proof relative to a charge of possession of a controlled substance in violation of Section 195.020, RSMo Supp.1973. The sufficiency of the proof necessary to sustain a conviction for actual or constructive possession of a proscribed controlled substance is tested by whether “ ‘the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it.’ ” (Emphasis added.) State v. Young, 427 S.W.2d 510, 513 (Mo.1968); and State v. Burns, 457 S.W.2d 721, 725 (Mo.1970). MAI-CR No. 1410, given by the trial court in compliance with the mandate of Rule 20, required the jury, among other things, in order to find the defendant guilty as charged, to find and believe beyond a reasonable doubt “that defendant was aware of the character of the drug and intentionally and knowingly had it in his possession”. This court encounters no difficulty in perceiving evidence of sales of narcotics by defendant, or evidence susceptible of being construed as sales of narcotics by defendant, as being fraught with a “legitimate tendency” or “logical relevancy” to show that defendant was aware of the “character” of the drug contained in the three bottles seized from him and that he “intentionally and knowingly had it in his possession”.

Although never broached by defendant, evidence and comments restricted to defendant’s acknowledgment that the “tabs” seized from him were LSD, standing alone, could conceivably be argued as adequate to show defendant’s awareness of their “character” and that he “intentionally and knowingly had [them] in his possession”, and therefore evidence and comments regarding the sale of narcotics by defendant was cumulative and for this reason took on an aura of error it otherwise might not have had. Any qualms concerning this un-broached argument are effectively dissipated, however, when the undeniable “legitimate tendency” and “logical relevancy” of the complained of evidence and comments to prove and show the crime with which defendant was charged is viewed in conjunction with the total circumstances previously iterated surrounding each of the sequential events relied on by defendant. When so viewed, this court is unwilling to stigmatize the trial court’s refusal to abort the trial as an abuse of discretion.

Judgment affirmed.

All concur.

      . On appeal defendant has not questioned the constitutionality of either of the searches or seizures mentioned.


text:
    STATE of Missouri ex rel. Fred DOYLE and Judy Doyle, Respondents, v. C. E. LITTRELL et al., Appellants.
    No. KCD27330.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Roger Guy Burnett, Liberty, for appellants.
    Thomas E. Allen, Liberty, for respondents.

      Before WASSERSTROM, P. J„ and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Relators sought a writ of mandamus in the circuit court to force the Board of Directors of Smithville R 2 School District (“Smithville”) to call a special election for a change of its boundaries. From the grant of a permanent writ as prayed, Smithville appeals.

Relators previously lived on a tract of land within the Kearney School District and their four children attended school there. More recently, Relators have moved to a different tract of their land lying within the Smithville School District. Their present home is approximately ten miles from the Kearney school and approximately fifteen miles from the Smithville school. By agreement with Kearney, the Relators were allowed to enroll their children in the Kearney District with the understanding that they would petition both school districts to change the boundary so that Rela-tors would then reside in the Kearney District.

Pursuant to that understanding, Relators obtained the necessary number of signatures to a petition for a change of school district boundaries under the provisions of Section 162.431, RSMo Supp.1973, and filed the petition with both districts. Kearney accepted the petition, included the issue on its ballot at the next general election, and the Kearney voters did approve the boundary change.

Smithville, however, refused to submit the issue to the voters in that district. The reasons given for that refusal were: 1) that the petition was defective in its description of the territory to be affected; and 2) that the petition was defective in that it consisted of two pages stapled together with all signatures appearing by themselves on the second page. The trial court found both of those objections to be without merit. On this appeal, Smithville assigns each of those rulings as error.

I.

Sufficiency of the Description of Territory Affected

The petitioning portion of the document filed by Relators with Smithville reads as follows:

“We, the undersigned qualified votes [sic] of the Kearney School District No. R 1 of Clay County, State of Missouri, hereby petition the boards of education of the school election [sic], as herein to submit to the voters at the next annual school election, as provided by law, a proposition to change the boundary line between the Smithville School District No. R 2 of Clay County and the Kearney School District No. R 1 of Clay County so that the following described land area now in the Smithville District No. R 2 will be detached therefrom and made a part of the Kearney District No. R 1.
“(Description of land area)
“[Here follows the legal description by metes and bounds of five separate tracts.]”

The complaint made by Smithville focuses on the description given with respect to the fifth of those tracts. The evidence stipulated by the parties shows that this fifth tract is presently owned in its entirety by one single owner, but for some reason unexplained by the record the description of this tract as set forth in the petition refers to a fractional ownership. The precise wording of this description which is now in dispute reads as follows: “An undivided V21 interest in the east half of the Southwest quarter and the North 55 acres of the West half of the Southeast quarter, all in Section Two, Township 53, range 32, all in Clay County, Missouri.”

Smithville contends that this description fails to describe a definite territory to be lost by Smithville and to be gained by Kear-ney. More specifically, its brief argues that “it is wholly impossible to change Vfeist interest in real estate from one school district to another.”

By this argument Smithville seeks to test the petition for boundary change by the same rules which would apply to a deed of conveyance. The two situations are not at all analogous. The purpose of a deed is to convey an ownership interest. Therefore the key question in that situation is what quantum of ownership is described by the deed. On the other hand, the purpose of a petition under § 162.431 is to change the physical boundary of a school district. The title to the land to be shifted is not affected, and the nature of rights of private ownership therein is completely immaterial. The sole question of concern is what physical property is to be shifted from one school district to the other, and it is a matter of indifference by whom the property is owned or how that title may be divided between multiple owners.

The description here of the fifth tract does sufficiently meet the purpose for which it was used. The requirement to be met is simply that the petition state “what changes are requested or what territory the districts affected are to gain or lose, or where the new boundary would be.” State ex rel. McGuire v. Hermann, 403 S.W.2d 1, 6 (Mo.App.1966). As stated in the early case of Mason v. Kennedy, 89 Mo. 23, 14 S.W. 514 (1886): “The important thing for the voter in each district to know was how his district was to be affected by the creation of the new district, and what particular territory his district would lose in the creation of the new one.” Those cases, as well as the other Missouri decisions on this subject, direct attention solely at the adequacy of defining a physical territory, without regard to the ownership rights therein. This objective, that of defining the physical tract of land to be affected, is fully met by this petition.

The phrase “[a]n undivided V21 interest,” at which Smithville aims its attack, relates solely to rights of ownership. As already stated, the question of ownership is immaterial for present purposes and this phrase should therefore be regarded as purely sur-plusage. Furthermore, the use of the word “undivided” in the challenged phrase emphasizes that the entire physical tract was intended to be included and forecloses any thought that the petitioners might have intended to detach from Smithville only a fractional geographic portion of this fifth tract.

The court decisions of this state have stressed that § 162.431 and its predecessors contemplated use of the statutory procedures by laymen not necessarily learned in the law and that therefore these procedures are to be liberally construed and applied. State ex rel. Fisher v. Fisher, 433 S.W.2d 63, 65 (Mo.App.1968). In the present situation Kearney and the trial court were of the belief, in which this court joins, that the intention of the petitioners with respect to the fifth tract was abundantly clear to the effect that this piece of land as one single physical entity was to be detached from Smithville and added to Kearney. If the Smithville board had any concern about voters possibly being confused by the surplus phrase “[a]n undivided V21 interest” the board had the power to cure any possible problem by striking this phrase from the notice to be given to the voters and the proposition as stated on the ballot. England v. Eckley, 330 S.W.2d 738, 746 (Mo. banc 1959; State ex rel. McGuire v. Hermann, supra.

II.

Separation of Signature Page From Body of the Petition

Under this point, Smithville contends that the separation of the signatures on a different page from the petitioning language renders the entire petition invalid. In this connection, Smithville argues, “there is absolutely no way it can be determined that the persons whose names appear on the second page in fact signed a petition for a change of boundary, or whether this was a piece of paper on which someone had simply written a number of names, or whether it was a piece of paper on which a number of people had written their names for any purpose, totally unconnected with any petition for change of school boundary.”

In evaluating this argument by Smith-ville, it should first be noted that § 162.431 states merely that ten percent of the voters “may petition” the district boards of education, without specifying any particular form which the petition must take. Indeed this court has intimated that the petition need not even be in writing or signed. State ex rel. Fisher v. Fisher, supra. However that may be, the petition here is in writing and has been signed by the requisite ten percent.

There is no evidence in this record to show nor is there any indication that Smith-ville had any reasonable ground to suspect that the signatures to this petition were in any way fraudulent. Even if there were some basis upon which Smithville could have entertained suspicions as to the genuineness of these signatures, then it would be under a duty to conduct some reasonable investigation rather than to dismiss the petition out of hand. State v. Tillatson, 312 S.W.2d 753 (Mo. banc 1958).

Smithville’s objection, based on the separation of the signatures on a page different from the one stating the changes desired, is hypertechnical and flies in the teeth of the accepted rule that these petitions are to be treated liberally. State v. Tillatson, supra; England v. Eckley, supra; State ex rel. Fisher v. Fisher, supra; State ex rel. McGuire v. Hermann, supra.

Affirmed.

All concur.