author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Emmett PARKER, Appellant.
    No. 36556.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 10, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Shaw & Howlett, C. Clifford Schwartz, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., James S. Haines Jr., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Emmett Parker was charged as a second offender with setting fire to and burning a building with the intent to injure and defraud the insurance company which had insured the contents thereof.

Appellant first challenges the sufficiency of the information because it did not set forth “the manner and means by which [he] was to have committed the offense.” He asserts that this “created an unfair and prejudicial burden upon [him] in meeting the uncertainty of the charge.” No cases are cited.

The information charged that appellant on a stated day “unlawfully, wilfully, maliciously and feloniously [did] set fire to and burn a certain building of [naming owner] situated at 5716 Dr. Martin L. King Drive * * * with the felonious intent then and there to injure and defraud [naming the insurance company], the insurer of said building which contents-occupied as record stocks of said building was then and there insured unto the said [appellant] against loss and damage by fire in the sum of four thousand dollars * *

Section 560.030 RSMo 1969 provides in its material parts as follows:

“Any person who shall willfully and with the intent to injure or defraud the insurer set fire to, burn or cause to be burned any goods, wares, merchandise or other chattels or personal property of any kind which shall at the time be insured by [the] person * * * against loss or damage by fire shall be guilty of a felony * 4c * »

In Hodges v. State, 462 S.W.2d 786, 789 (Mo.1971) the Supreme Court of this State, in considering the sufficiency of an information charging robbery, stated: “Certain rules have been enunciated for testing the sufficiency of an information, among which are: It must state essential facts constituting the offense charged. State v. Cunningham, Mo., 380 S.W.2d 401, 403[4]; it must adequately notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense, State v. Tandy, Mo., 401 S.W.2d 409, 412-413[3]; and if the information does these things following the language of the statute or words of similar import, poor draftmanship, if existent, will never render it fatally defective, State v. Harris, Mo., 313 S.W.2d 664, 669[3].”

Although poorly drafted, the information in this case followed the language of the applicable statute and set forth all the essential elements of the offense.

Appellant’s contention that the information, as worded, placed a prejudicial burden on him to meet the “uncertainty of the charge” implies a reference to Mo. Const. Art. I, § 18(a) wherein it is provided that an accused has the right “to demand the nature and cause of the accusation.” However, that provision does not require that the State plead the evidence with which it intends to prove the commission of the offense. State v. Spica, 389 S.W.2d 35, 40 (Mo.1965). The statute applicable to this case makes it an offense to burn insured goods with the intent to defraud the insurer. The charge that appellant did burn the described goods with that intent is the “nature and cause of the accusation.” The act of burning may be accomplished in various ways or means, and proof of the particular way or means employed constitutes evidence of the commission of the offense. A comparable situation may be found in State v. McKinney, 528 S.W.2d 1 (Mo.App.1975). It was there held that it was not necessary to set forth in an information charging first degree robbery by means of a dangerous and deadly weapon a definition or description of the weapon employed, but that the information need only allege the language of the statute.

This does not mean that appellant was not entitled to be informed of what the State intended to claim constituted the “manner and means” of committing the charged offense if necessary to prepare a defense. Rule 24.03 provides: “When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars.” Appellant did not request a bill of particulars, and his failure to do so constituted a waiver of the lack of any detail in the information. State v. Davis, 510 S.W.2d 790 (Mo.App.1974).

Appellant’s second point, in its entirety is as follows: “The Court committed prejudicial error in overruling defendant’s motion to suppress and exclude confessions of fact and statements against interest.” This point fails to comply with Rule 84.04(d) in that it fails to set forth wherein and why the action of the court is claimed to be erroneous. In the argument pertaining to the point, appellant contends the he was “neither advised of his rights [presumably “Miranda rights”] nor was he informed that the purpose of Officer Ginther’s conversation with him was for the Officer’s formal report.” No authorities are cited in the argument.

Apparently appellant had reference to a statement made by him to Police Officer Ginther at the time of the fire. Officer Ginther testified at the hearing on the motion to suppress that he arrived at the scene of the fire at about 3:30 o’clock in the morning, and that in making his investigation he talked to appellant. In answer to the question as to what appellant said, Officer Ginther stated:

“He identified himself as Mr. Parker and stated he was the owner of the real estate and he stated he had left and secured the premises about 10:30 p. m. and had driven to Kiel Auditorium to pick up his wife, Gloria. He further stated that while at Kiel Auditorium picking up his wife, a lady known to him as Francine stated she had parked her car in front of the 5700 Martin Luther King address and requested to be driven back to that location which he did; and, on arriving, he found the fire apparatus there.”

Aside from its inadequacy, the point is without merit for several reasons. First, we find nothing in the statement attributed to appellant that constituted a confession or a statement against interest. Second, the questioning of appellant by Officer Ginther was made in the course of his on-the-scene investigation, and it did not constitute in-custody interrogation. As stated in Miranda, v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), “General on-the-scene questioning as to facts surrounding [the] crime or other general questioning of citizens in the fact-finding process is not affected by our holding.” It has repeatedly been held that responses to pre-custodial inquiries are not inadmissible because of a failure to give Miranda warnings. State v. Duncan, 495 S.W.2d 460, 462 (Mo.App.1973); State v. Ralls, 472 S.W.2d 642, 647 (Mo.App.1971). Third, no objection whatever was made when Officer Ginther testified at the trial that appellant made to him the statement referred to above.

We will consider appellant’s third and fourth points together. They are that the trial court erred in denying his motion for judgment of acquittal (Point III) “at the close of the State’s evidence because the finding and judgment of the court is against the weight of credible evidence,” and (Point IV) “at the close of all the evidence because the evidence presented and the hypothesis relied upon by the State in establishing the guilt of the defendant were not consistent with each other.”

We first note as to Point III that appellant did not stand upon his motion for acquittal at the close of the State’s case, but introduced evidence of his own. Therefore, he waived any error with respect to the denial of that motion. State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). In addition, the weight of the evidence is not a matter reviewable by an appellate court, State v. Thomas, 530 S.W.2d 265 (Mo.App.1976), but is an issue for the trial court in ruling on the motion for new trial. State v. Talbert, 454 S.W.2d 1 (Mo.1970). It is reasonably apparent, however, that appellant contends by these two points that the State did not make a submissible case based in part on circumstantial evidence, and we shall so consider the points.

Appellant was the owner of the Dynamic Record Shop located at 5716 Dr. Martin Luther King Drive in the City of St. Louis. The premises were rented from Albert Ei-senberg, and on April 28, 1973, the fixtures and inventory in the record shop were covered by a fire insurance policy issued by the Missouri Property Insurance Placement Facility. Appellant operated the record shop with Gloria Ford, his “common-law” wife. In the nine months they had owned the record shop, it had not been a profitable operation. The shop had only one door and appellant and Gloria were the only persons who had a key, and on the night of the fire each had his or her key. At about 7:00 o’clock, or possibly a little earlier, on the evening of April 28, 1973, appellant took Gloria and two other persons to a show at Keil Auditorium. During the evening appellant’s son was in charge of the record shop, and many young persons including appellant’s other children, were present. Some smoked cigarettes and lit matches while in the shop, and one lit matches and “flipped” or “popped” them at others who were present, but no fire was started. Appellant later returned to the record shop, and after he “ran everybody out” he closed the shop about 10:30 o’clock and locked the door. According to appellant, he then drove to Keil Auditorium to pick up Gloria and her companions, and when he returned to the record shop, where one of the persons had left her automobile, he discovered that a fire had broken out. Patrolman Brennan of the St. Louis Police Department testified that it was “approximately twelve o’clock” when appellant arrived with two other persons.

At 11:17 o’clock of the evening of April 28,1973, Captain Haggard and four firemen responded to a fire alarm and went to the record shop where they observed smoke coming out of the front of the building. All the windows were closed and secured. After breaking the lock on the iron grate in front of the door Captain Haggard forced open the door and entered and observed a “fire burning on the east wall of the front room.” When that fire was extinguished, the firemen looked for an “extension” of the fire into the walls, ceiling, or floor and found none. However, Captain Haggard noticed that there were smoke stains immediately above a drawer in the counter, and when he opened the drawer he found a crumpled newspaper to which had been taped three paper match books and a cigarette. The cigarette had burned and ignited two of the books of matches, and had caused some burning of the paper but the fire had gone out, apparently because of the lack of oxygen. This clearly was an incendiary device which had malfunctioned.

There was no heat producing equipment in the area of the fire along the east wall, and there was no indication that the fire was caused by a malfunction of any electrical equipment or defective wiring. There was no direct evidence as to the cause of this fire. However, if an incendiary device such as the one found in the drawer was used it could have been destroyed by fire before the firemen arrived.

Detective Brooks of the St. Louis Police Department, found a small can on a pile of debris behind the counter and along the east wall which contained a small amount of liquid of the same chemical composition as lighter fluid. Nothing else was found that could have caused the fire, but Detective Brooks expressed an opinion as an expert that the fire along the east wall was the “result of arson.” He stated that he based his opinion on the “incendiary device * * * and also the flammable substance in the area of the fire.” Although there was an objection to the question and a motion to strike the answer, there is no point on appeal challenging the reception into evidence of the opinion of Detective Brooks, and therefore for our purpose it constitutes evidence of causation. State v. Paglino, 319 S.W.2d 613 (Mo.1958).

In State v. Jackson, 267 S.W. 855, 857 (Mo.1924), it was stated: “Arson is not a crime which may be expected to be committed openly and in broad daylight. It is a crime usually undertaken in stealth and under cover of darkness and at an hour when few, if any, observers are likely to be about. Unless accused confesses his crime or is caught in the act, guilt must usually be proven by circumstantial evidence.” In determining the sufficiency of the evidence, in this case we observe the rule that “even in cases where the evidence is wholly circumstantial, all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged,” State v. Thompson, 428 S.W.2d 742, 744 (Mo.1968).

The evidence unquestionably is sufficient to establish motive and opportunity on the part of appellant. See State v. Paillou, 321 S.W.2d 445 (Mo.1959), and State v. Ferrara, 320 S.W.2d 540 (Mo.1958). However, in addition “There must be proof of circumstances from which the jury will be authorized to find the further fact that such fire was of incendiary origin * * * [and] that the accused was the incendiary.” State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 155 (1938). Both the incendiary origin of the fire and the guilty agency of the accused may be established by circumstantial evidence. State v. Berkowitz, 325 Mo. 519, 29 S.W.2d 150 (1930).

We have here a combination of circumstances, none alone being sufficient to establish definitely the incendiary origin of the fire along the east wall. But, the store was closed, at approximately 10:30 o’clock; the fire was discovered at approximately 11:00 o’clock; there is evidence that the fire did not result from defective wiring or an overheated appliance; there was an almost empty can of lighter fluid on the debris where the fire occurred; and most important, there was an incendiary device in a nearby drawer of the counter in the store which had ignited, burned a little, and then had gone out because of the lack of oxygen. This device could not have been created by accident or without design to create a fire, and a similar device, if used, would have been destroyed in the fire at the east wall.

• The next issue is whether the evidence authorizes a finding that appellant was the incendiary agency. Appellant cites several cases. What appears to be the strongest case in his favor is State v. Ruckman, 253 Mo. 487, 161 S.W. 705 (1913), where, in addition to the incendiary nature of the fire, there was proof of motive on the defendant’s part and “possible opportunity” for him to have carried out such motive,- and this was held insufficient. However, as pointed out in State v. Ferrara, supra at page 545, the court in the Ruckman case was careful to point out that the State’s own witnesses put the defendant in his hotel room two hours before the fire, and that he did not thereafter leave until awakened and informed of the fire, and in ruling the case the court observed that “the state’s own evidence tends to show that the defendant did not cause the fire.” State v. Dworkin, 307 Mo. 487, 271 S.W. 477, 479 (1925), decided subsequent to the Ruckman case, seems to be more in point on its facts. That was a prosecution for setting fire to goods and merchandise with intent to defraud the insurers thereof. A fire was discovered in a warehouse about 5:00 o’clock one morning burning in a barrel partly filled with straw and emitting a smell of gasoline. It was quickly extinguished, and the firemen found nine large bottles of about five gallon capacity filled with gasoline placed at intervals along the floor. The bottles were uncorked and a “necktie” of excelsior was tied around the neck of each. The primary question was defendant’s agency. The court recognized that arson may be committed by use of some contrivance or means to delay the actual burning, and it was deemed to be of primary significance that no one other than the two owners had access to the warehouse, and the other owner was absent from the city. The court commented: “He [defendant] was the only one who had the opportunity, and, excepting his absent partner, the only one who might have had the motive. These important facts are inconsistent with his innocence and quite consistent with his guilt. The evidence was sufficient to submit that issue [the criminal agency of defendant] to the jury.”

In this case the property was insured and the business was not a profitable enterprise; the building was locked and secured when the firemen arrived, and appellant and his absent partner were the only ones who had a key, which made appellant the only one immediately prior to the fire who had exclusive authorized access; there was no evidence that the fire could have resulted from defective wiring or negligent use of electrical appliance, in fact, the evidence was to the contrary; appellant was at the store and left it within the time that he could have installed a delayed incendiary device, such as the one that was found; and it is most improbable that a stranger could or would have in some way obtained entrance to the building and set the fire. Under these circumstances the evidence meets all the requirements for the proof of a case by circumstantial evidence. The trial court correctly overruled appellant’s motion for judgment of acquittal.

Appellant next asserts that the trial court erred when it allowed, over objection, the testimony of Albert Eisenberg in rebuttal because it “did not tend to explain, counteract, repeal or disprove evidence offered by the defendant.” In this appellant is clearly wrong.

Mr. Eisenberg was the owner of the building from whom appellant rented space in which to operate his record shop. Appellant testified that he paid rent by the month, that he was never behind in his rent, and that at the time of the fire the rent payments were current. As a rebuttal witness Mr. Eisenberg testified that at the time of the fire the rent was eighteen days overdue.

Appellant cites and relies on Bean v. Biddle, 423 S.W.2d 709, 720 (Mo.1968), wherein it was said that if a party is allowed, in the discretion of the court, to introduce rebuttal evidence on Ms case in chief, the party is not entitled as a matter of right to introduce further evidence on the same point in rebuttal of his adversary’s case, but having “elected to rebut it in advance, he should then put in all his evidence on that point.” In this case the State attempted to establish by Mr. Eisenberg in its case in chief the status of appellant’s rent payments at the time of the fire, but was prevented from doing so by reason of the court sustaining appellant’s objection to such testimony. The Bean ease has no relevancy to the issue here presented.

The rebuttal testimony of Mr. Eisenberg did refute the testimony of appellant on a material issue; that of motive. Moreover, a trial court has broad discretion in permitting rebuttal testimony, State v. Adams, 465 S.W.2d 536, 540 (Mo.1971), and there could not possibly have been an abuse of discretion in this case.

Appellant also asserts that it was error for the trial court to permit the prosecution to cross-examine Gloria Ford, appellant’s “common law” wife “as to matters relating to [his] character when in fact no such evidence was presented on direct examination [of this witness] by the defendant.”

At the time Gloria Ford testified appellant had already placed his good character in issue. It is true that when Gloria Ford testified for appellant she was not asked any question on direct examination concerning appellant’s reputation for good or bad character. On cross-examination the prosecutor was permitted to question her relating to appellant’s character. Appellant cites no case holding that this was not permissible.

We first note that Gloria Ford was not charged with any offense, and she was not the wife of appellant. See § 546.260 RSMo 1969. Therefore, any limitation on the cross-examination of those persons because of their status is not in this case.

Second, if the examination had been improper, which it was not, there was no prejudicial error. Gloria Ford testified that “In the community we live, [appellant’s] reputation [for truthfulness, veracity and good moral character] is good,” and his “reputation on the job is especially good.” She further testified that she had not heard reports in the community that appellant had been convicted or arrested.

Third, the cross-examination was permissible pursuant to § 491.070 RSMo 1969, which, in its material part, provides:

“A party to a cause, civil or criminal, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness (except where a defendant in a criminal case is testifying in his own behalf) on the entire case, * *

When appellant, by use of previous witnesses placed his character in issue, that character became a part of “the entire case.” When Gloria Ford was subsequently called by appellant and testified, she was then subject to cross-examination “on the entire case,” which included appellant’s reputation for good character. Although the precise question here presented was not involved, in State v. West, 349 Mo. 221, 161 S.W.2d 966 (1942), the court held that the above statutory provision “undoubtedly entitled the State to cross-examine the appellant’s witnesses [as distinguished from the appellant] as fully as could have been done in a civil case.”

Appellant’s seventh point is that the trial court erred in overruling his motion for a mistrial when Officer Kelfisch, a witness for the State, “testified to the alleged statement made by the defendant when in fact the statements were different from those supplied to the defendant’s attorney * * pursuant to the court order of July 25, 1973.” By that order the court sustained “Defendant’s Motion to Inspect” wherein appellant requested to be permitted to “inspect and copy or photograph any relevant written, oral or recorded statements or confessions made by the Defendant, or copies thereof, which are known by the Circuit Attorney to be within its possession, custody or control.” The court “Sustained Defendant’s Motion to Inspect Recorded Statements against Interest and Confessions of Fact.”

On May 1,1973, Officer Kelfisch, a detective assigned to the Bombing and Arson Section, interviewed appellant at the record shop. At the time he made handwritten notes as to the statements made by appellant. He thereafter prepared a typewritten report, a copy of which was furnished by the Circuit Attorney to appellant pursuant to the Order to Inspect. The handwritten notes were retained by the officer, or at least were not given to the Circuit Attorney until during the trial, and the notes or a copy thereof, were not furnished to appellant prior to trial. Appellant now asserts that the notes were, in one respect, different from the typewritten report, and that he was prejudiced by not receiving in advance of trial the information contained in the handwritten notes.

In the typewritten report prepared by Officer Kelfisch, which was furnished to appellant, appears this statement which purports to be based on statements made by appellant to the officer: “He [appellant] then returned home to 5551 Cabanne, where he ate and took a bath. He continued that he then returned to the record shop. This was about 10:00 p. m., and while he was gone, his sons * * Although this statement and the handwritten notes were introduced in evidence as exhibits neither has been filed with this court. From the record it appears that the handwritten notes, as we have been able to reconstruct them, are as follows: “I [appellant] went back home — took a bath, etc. It was about 10:00 p. m. There was a lot of kids in the shop and I ran them out and closed the shop.”

We first note that appellant’s basis for a mistrial, as stated to the trial court, was that he “did not have the information contained” in the handwritten notes, and that by failing to provide him with the handwritten -notes there was a noncompliance with the Court Order sustaining the Motion to Inspect. At one time, in argument, counsel asserted that “nowhere [in the typewritten report] appears the statement made at the trial of this cause just a few minutes ago by Mr. Kelfisch, that [appellant] said that he returned to the store at about 10:00 o’clock p. m.” We also note that appellant’s point in his brief is directed to the fact that Officer Kelfisch “testified to the alleged statements” made by appellant “when in fact the statements were different” from those furnished to him. The point clearly asserts error in permitting testimony brought out by appellant on cross-examination to which no one made an objection; not to an alleged failure of the Circuit Attorney to comply fully with the Motion to Inspect. But in argument appellant asserts error because the handwritten notes were not furnished to him, and he relies on Rule 25.32. We note, however, that Rule 25.32 did not become effective until after the trial of this case, and the applicable rule is that stated in State v. Aubuchon, 381 S.W.2d 807 (Mo.1964). It was there stated that the issue is whether the withholding of material in the possession of the prosecutor resulted in appellant’s trial being “fundamentally unfair;” an issue which rests, in the first instance, in the discretion of the trial court, and which is reviewed on appeal to determine whether there was an abuse of that discretion.

The trial court examined the handwritten notes and the typewritten statement and ruled that they were “consistent with each other,” and that the Circuit Attorney had complied with the Motion to Inspect. We agree with these conclusions. In addition, appellant has not demonstrated wherein or how he was prejudiced by failing to receive the handwritten notes during the trial when they first came into the possession or custody of the Circuit Attorney.

Appellant’s final point is that prejudicial error resulted when the trial court refused the following requested instruction:

“You are instructed that because of the State’s failure to call all of their witnesses in this cause, you can presume that the evidence they would give would be unfavorable to them.”

The total argument is that “Detective Gary Fuhr, 7th District [and] B. E. Meredith” were endorsed as witnesses, and “clearly these witnesses were not equally available to the defendant.”

Appellant cites only State v. Wallach, 389 S.W.2d 7 (Mo.1965), and State v. Davis, 504 S.W.2d 221 (Mo.App.1973). Neither of these cases support his contention. They hold only that it is permissible to argue the adverse inference theory when witnesses available to the State but not equally available to the defendant are not called if it can reasonably be expected their testimony would be more than mere cumulative testimony. Neither case discusses whether a defendant is entitled upon request to such an instruction as requested in this case, and we have found no case which in any way supports appellant’s contention.

Aside from the question of whether the State’s failure to call an endorsed witness may authorize an argument to the jury concerning an adverse inference, this is not a proper matter for an instruction by the court to the jury. Such an instruction would be a comment on the evidence, and would be comparable to instructions pertaining to an inference to be drawn from flight by the accused, but which, by reason of MAI-Cr 4.00, may not now be given. The refusal of the requested instruction was proper.

The judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James A. MICHAELS, Appellant.
    No. 36636.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 10, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Irl B. Baris, St. Louis, for appellant.
    Courtney Goodman, Jr., Pros. Atty., George F. Meyer, Jr., Asst. Pros. Atty., Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant James A. Michaels was found guilty by a jury of operating an automobile while intoxicated, a misdemeanor, and was fined $500. We affirm.

We first note that a representative of the Prosecuting Attorney for St. Louis County did not file a brief or appear before this court at oral argument of this case. We recognize that under the present Supreme Court Rules there is no penalty for such failure, Shephard v. Hunter, 508 S.W.2d 234 (Mo.App.1974), but the practice has repeatedly been condemned by the courts. Superior Loan Corporation of Buffalo v. Robie, 476 S.W.2d 144 (Mo.App.1972); McCutchen v. Moore, 494 S.W.2d 684 (Mo.App.1973). These citations are to civil cases where only private rights were involved, but this is a criminal case and it ill behooves a public official to fail to see that the State is adequately represented throughout the entire proceedings.

Appellant admits in his brief that for “purposes of this appeal * * * the State’s evidence made a submissible case.”

Appellant first asserts that the trial court erred “in failing to make any inquiry as to irregularities in the jury, including a private investigation by one juror and prejudicial newspaper publicity * *

The Juror Incident

On the second day of trial, in response to an inquiry from appellant’s counsel, the court stated: “At the noon recess, Juror No. 9 * ⅝ ⅜ came up and * * * said he had written down some items for the direction of the jurors in their work and that he had given it to the bailiff and asked the bailiff to have it typed up. It is handwritten on a piece of scratch pad starting with P-9 which evidently refers to paragraph 9, an item which, if it is agreeable, we can have the court reporter copy into the record.” Counsel for appellant suggested that the paper be made an exhibit and it was marked as “Court’s Exhibit No. 1.” What was written on the paper was not copied into the record. The trial court stated that it had “secured this item from the bailiff and exhibited it to counsel for both the State and defendant,” and the court then commented as follows: “[I]t appears to be some type of notation and copied by the juror from some manual in regard to qualifications for jury service, with the inference drawn by the Court — well, maybe we shouldn’t draw any inference. It apparently relates to qualifications for jury service in some form.” The court then advised counsel that it had “told the juror at the time that jurors were not permitted to take notes or write matters and were not permitted to submit written suggestions to other jurors; that they could under proper precautions, ask questions of the Court out of the hearing of the rest of the jury, [and that the court would] take the matter up with him before we resumed, after the noon recess.”

Counsel for appellant indicated that he was concerned about the juror “apparently [feeling] the necessity of doing some independent research,” and he requested “an investigation be made at this point, as to what activities this juror has engaged in with reference to any independent research as to what the law is or should be.” The court commented: “This appears to be entirely unrelated to any issue in the present lawsuit and it would be the Court’s feeling before we reconvene, the Court will instruct the juror that he is to be guided by the evidence he hears from the witness stand and the instructions of the Court; that he is not to undertake any writings either to himself or to the other members of the jury. At the conclusion of the case, if it is pertinent, we can examine the juror as to any collateral activities. There has been no evidence of any such before the Court at this time other than this apparently a copy of some item, apparently related to jury service and designated ‘Federal Code of J.P.’ ” Counsel for appellant again stated that his concern was that “the juror is attempting to glean some outside knowledge of the law,” and he expressed the view that “to instruct the juror that he cannot put anything in writing to be distributed to other members of the jury, is not sufficient,” but that the juror should be instructed that he “cannot communicate in any way with the jurors concerning any of this independent knowledge.” Counsel also referred to what he characterized as “this research which has been reduced to writing.” The court interrupted to say that it did not know “if you could categorize this as research,” and further commented: “For the moment at least, it is the Court’s feeling rather than highlighting it in any manner with this particular juror, it would be well to proceed and then if pertinent, if at all pertinent, later to take the matter up and see if there has been any activities performed outside of the scope of the evidence and instructions. The Court’s reason for not doing it at this time is not to highlight the matter with this particular juror at this time. In the Court’s discretion, we think the better procedure in view of the fact that we regard it, at least at this moment, a rather minor item, to explore the matter at a later date and not highlight, not to run the risk of highlighting, or getting the matter out of context.”

The exhibit is not before us. Counsel for appellant has advised this court that the exhibit apparently has been lost.

The Newspaper Incident

Immediately before the Instructions to the jury were read, counsel for appellant offered for identification a copy of the St. Louis Globe Democrat for June 20, 1974. He then advised the court that he had observed “one juror in this case reading the Globe Democrat,” but that he did not know what article the juror was reading. Counsel then called the attention of the court to four articles in the paper as follows: (1) An article on page one entitled “60 percent of drunk drivers still on streets,” (2) An article on page 3-a entitled “Woman, 76, Killed by car; driver allegedly drunk.” and two articles on page 10-a entitled (3) “Wehrle case thrown out; test results barred,” and (4) “More women patrol officers recommended.” Counsel admitted that the article on page 3-a was “a factual report of an accident that took place in Caseyville, Illinois,” and that he had “no quarrel with the newspaper printing it,” but he considered it “as an unfortunate incident being in the newspaper today.” He added that he was “particularly concerned” about the article on page one which was “basically in the nature of an interview and statements” made by the prosecuting attorney who “ought to [have known] of the trial of this case.” Counsel stated that this “is a matter this court ought to investigate to determine the surrounding circumstances as to the giving of an interview and making of such statements which can have a prejudicial effect upon cases pending and prejudicial effect upon the system of justice generally.” Appellant’s counsel moved “for a mistrial in this case and ask[ed] the Court to conduct an investigation,” and if the court found this publication “was deliberately placed by the prosecuting attorney’s office,” the charges be dismissed. Appellant also requested the court to “determine precisely the extent to which the jurors have been exposed to these articles.”

The court stated: “I will reserve ruling on your motion for mistrial at this time,” and it further commented: “of course the articles in question, while they deal with the general subject of driving while intoxicated, are neither the first nor the last that have appeared in any of the papers, local, national or otherwise, and there are almost, if not daily, frequent news articles dealing with the subject matter. I don’t think, per se, the printing of articles on the subject of driving while intoxicated is all that unusual however. Under the circumstances we will proceed to conclude this matter and then if any further action, and if it develops any action is indicated then we will meet that situation when we get to it.”

Following this, the instructions were given to the jury, the case was submitted, the verdict rendered, and motion for new trial was filed and overruled, but there is no indication, directly or by inference, that either of these two matters which had expressly been reserved for subsequent consideration, again be considered and an investigation be made.

We have set forth in detail the discussions between counsel and the court. It is clear that the trial court, who viewed in camera the writing prepared by the juror, considered it to be “entirely unrelated to any issue in the * ⅞ * lawsuit,” and that it pertained in some way to “qualifications for jury service.”

It is equally clear that the court considered the newspaper articles to have been of the same nature as those that appear with frequent regularity in the newspapers. None pertained to appellant or to this case. There is no indication that the jurors had been instructed not to read newspapers, and we note that the members had gone to their respective homes between the first and second day of the trial.

The trial court had observed the trial, and could evaluate the effect, if any, of these two incidents, and in the absence of an abuse of discretion its judgment in the matters ordinarily would not be disturbed. Appellant’s complaint, however, is that the trial court was not entitled to evaluate the situations without making a further investigation as to the effect, if any, on each juror. Appellant cites several cases, including Mares v. United States, 383 F.2d 805 (10th Cir. 1967), and United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974), which hold that when a jury is exposed to potential prejudicial information the court must, at least upon request, attempt to determine “the extent and effect of the infection, and thereafter, in its sound discretion, take appropriate measures to assure a fair trial.” We do not disagree with this general proposition. But the factual situation in this case, does not make the rule applicable.

Contrary to appellant’s assertion that the trial court “refused” to take any action in the matters, it expressly stated, as to the juror incident, that in its discretion it would be “the better procedure” to “explore the matter at a later date” if it were then considered to be “at all pertinent,” and as to the newspaper incident, it “reserved ruling on the motion for a mistrial,” and “if it develops any action is indicated * * * we will meet that situation when we get to it.” But, no further mention was made of either incident by appellant until after the jury was discharged, and then the jury was not subject to an interrogation of its members to determine whether some remedial action was required.

The soundness of this exercise of discretion on the part of the trial court is readily apparent. For example, if a jury had returned a verdict of acquittal, the prejudicial effect, if any, of either incident would be immaterial. But if the verdict was guilty, which it was, before the jury was discharged the court could then upon request have interrogated each member, if deemed advisable, and determine, as stated in United States v. Hankish, supra, “the extent and effect of the infection,” and take the “appropriate measures to assure a fair trial,” such as setting aside the verdict and granting a new trial. We cannot assume, contrary to what it said, that the court would not, if requested, have conducted the investigation. It was a reasonable and proper exercise of discretion on the part of the trial court to delay the requested investigations, and appellant cannot now complain on appeal, after it is too late to conduct an investigation of the individual jurors, that the trial court did not do what appellant did not request to be done.

Appellant has furnished us by mail a copy of the opinion in United States v. Main Lobster Co., Inc. (1st Cir. 1976), in which “In the exercise of [the court’s] supervisory power” a judgment was reversed because of a newspaper report of an interview with a United States Attorney in which no direct mention was made of the pending case and the subject of which pertained to a function of the court, punishment, as distinguished from a function of the jury, and which the court expressly held was not “sufficiently prejudicial to cause the trial to be constitutionally unfair.”

This opinion, as are all opinions of lower courts of other jurisdictions, is entitled to respectful consideration, which we have carefully afforded it, but it is not binding on this court, Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783, 784-5 (Mo.1973), and we do not agree with its rationale. In the exercise of our “general superintending control,” Mo.Const. Art. V, § 4, ¶ 1 (as amended 1970), assuming this presents a permissible area for the exercise of such control, we decline to consider the’ drastic action of a reversal of the judgment when appellant declined to request any further relief when the court expressly ruled that the matter could be pursued “if it develops that any action is indicated,” and when there is no demonstration of prejudice, which if it existed could have been shown if appellant had followed through as proposed by the rulings of the Court. As we observed in another case, State v. Brauch, 529 S.W.2d 926, 930 (Mo.App.1975), we gather the impression that appellant preferred to preserve a contention of error rather than have the jury interrogated at the time suggested by the Court.

Appellant next asserts that it was error to permit the arresting officer to testify that in her opinion appellant was intoxicated. He cites two cases, State v. Scaturro, 509 S.W.2d 491 (Mo.App.1974), and State v. Edmonds, 468 S.W.2d 685 (Mo.App.1971). He asserts that he does not quarrel with the officer’s testimony “as to what she observed of the defendant,” but he contends that she was not “qualified to express an opinion of intoxication.”

The police officer testified to actions of appellant in operating his automobile and his conduct subsequent to the time she stopped him which clearly indicated abnormal conduct, or conduct which was that of a person under the influence of alcohol or some other stimulant. For example, she testified that his car was weaving on the road; that when she stopped him he gave her an erroneous address; that his clothes were disarranged, he swayed when he walked, she smelled the odor of alcohol, his speech was not clear; and that he slept in the police automobile when on the way to the police station.

The complete answer to appellant’s contention is found in State v. Edmonds, supra at page 688 where it is said:

“It is clear that a lay or non-expert witness may testify as to his opinion of the intoxication of another. The fact of intoxication is by its nature ordinarily a matter of opinion which must be shown by men not expert in such matters. * * Normally, where the witness is testifying that the person involved was intoxicated the opinion must be preceded or at least supported by the evidentiary facts of conduct or appearance upon which the witness bases his opinion. We have found no case in Missouri on what evidentiary facts must appear when the witness is testifying to non-intoxication. We believe, however, that the evidentiary rules dealing with opinion testimony of sanity or insanity are equally applicable to testimony of sobriety or drunkenness. A lay witness when giving an opinion that a person is of unsound mind must state the conduct or actions upon which he founds that opinion in order that the jury may determine whether the abnormalities testified to justify the opinion. Such factual basis is not required where the witness expresses an opinion of sanity, for there the opinion is based upon the absence of abnormalities. The opinion is not based on concrete facts demonstrating insanity but on the absence of such facts. * * The same is true in the area of intoxication. An opinion of intoxication is based upon actions and appearances not normal, whereas an opinion of non-intoxication is based upon the absence of such actions and appearances.”

Appellant’s final point is that the court erred in permitting the prosecuting attorney to comment in argument “on failure of [appellant] to testify or produce evidence * * * »

The police officer stopped appellant on Telegraph Road in South St. Louis County. She testified that when she asked appellant where he was going, he replied “Home,” but at the time he was not proceeding in that direction. In oral argument the prosecutor said: “He started to leave the scene. He gets into his car and starts to drive away. The man obviously wasn’t aware of what was going on; he gets into his car and started wandering off. When he was asked where he was going at the time of his arrest he said he was going home. You would assume he lived in that area. He lives one mile to the east and five or six miles south of there [the place of arrest]! He’s wandering around, he doesn’t know where he is! There is no evidence of where he is going or anything — .” Appellant’s objection, in its entirety, was: “I object to that comment and move for a mistrial. I ask the jury be instructed to disregard that. I move for mistrial.”

It thus is clear that the basis of the objection at the time was not, as now contended on appeal, that the argument constituted a comment on the failure of appellant “to testify or produce evidence.”

We first note that in certain circumstances the prosecutor may comment on the failure of the accused to present evidence, but when the accused elects not to testify he may not comment on the failure of the accused to present evidence by his own testimony. Rule 26.08, and § 546.270 RSMo 1969. From appellant’s argument it is reasonably clear that his contention is that the statement “There is no evidence of where he is going or anything” amounted to a comment on appellant’s failure to testify. In addition to the inadequacy of the objection, the argument of the prosecutor was self-contradictory. He first said that there was evidence that appellant was going home and he then said there was no evidence of where he was going. This leaves to speculation the reason the court overruled the objection.

No reasonably intelligent juror could have construed the statement of the prosecutor as a comment on appellant’s failure to testify. It certainly was not a direct or certain reference to such failure. The comment was to the effect that the evidence, whether offered by the State or by appellant, did not show where he was going because he was not, at the time of the arrest, going in the direction of his home. That was a permissible and proper comment. For cases announcing the rule forbidding comments on an accused’s failure to testify, and in which comments similar to or more questionable than the one here were approved, see State v. Baker, 439 S.W.2d 515 (Mo.1969); State v. Varner, 329 S.W.2d 623 (Mo.1959); State v. Hardy, 365 Mo. 107, 276 S.W.2d 90 (1955); State v. McDaris, 463 S.W.2d 809 (Mo.1971); State v. Jackson, 444 S.W.2d 389 (Mo.1969) and State v. Michael, 361 S.W.2d 664 (Mo.1962).

In addition to the fact that appellant did not object at the time on the basis that the argument constituted a comment on his failure to testify, for which reason alone the point could and probably should be overruled, the statement did not in fact violate the rule prohibiting a comment on appellant’s failure to testify.

The judgment is affirmed.

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


text:
    STATE of Missouri, Respondent, v. Bobby Ray SPEEDY, Appellant.
    No. 36101.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 17, 1976.
    Motions for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      William J. Shaw, Public Defender, Howard Schainker, Dennis Smith, Asst. Public Defenders, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Shelia Hyatt, Asst. Attys. Gen., Jefferson City, Gene McNary, Pros. Atty., Courtney Goodman, Jr., Thomas E. Dittmeier, Asst. Pros. Attys., Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Bobby Ray Speedy, charged by indictment in two counts, was found guilty by a jury of the first degree murder of James Gordon Meek for which he was sentenced to life imprisonment, and the second degree murder of Clark Milo Brown for which he was sentenced to imprisonment for a term of thirty years, the sentences to be served concurrently. He has appealed from the ensuing judgment. We affirm.

Appellant does not challenge the sufficiency of the evidence. We need only state that on March 10,1973, while James Gordon Meek was entertaining friends in his apartment, one of whom was appellant’s divorced former wife, appellant entered with a shotgun and shot and killed Meek and also Clark Milo Brown, one of the guests.

Appellant first asserts that “the trial court erred and its decision must be reversed because the State failed to prove that venue was proper in St. Louis County.”

Absent a waiver, venue must “be proved because the accused, under the Sixth Amendment to the Constitution, is guaranteed the right to a public trial by an impartial jury in the state and district wherein the crime shall have been committed.” Dean v. United States, 246 F.2d 335, 338 (8th Cir. 1957), and State v. Garrett, 416 S.W.2d 116 (Mo.1967). See also § 541.033 RSMo 1969. But, as held in numerous cases, including Eicheiberger v. State, 524 S.W.2d 890 (Mo.App.1975), venue is not an integral part of a criminal offense and need not be proved beyond a reasonable doubt or by direct evidence, but it may be inferred from all the evidence.

Appellant does not assert that the alleged offenses occurred in any place other than St. Louis County, and there is sufficient evidence from which it may be inferred that the offenses were there committed. In State v. Valentine, 506 S.W.2d 406, 410 (Mo.1974), the court recognized that evidence supporting an inference of the place of the commission of a crime was the fact that “Seven police officers who were engaged in one or more phases of the investigation of the shooting * * * identified themselves as officers of the police department of the city of St. Louis.” In this case three police officers who investigated the shootings identified themselves as officers of the St. Louis County Police Department. Another witness, who made various tests pertaining to the shootings, identified himself as the person in charge of the St. Louis County police laboratories, and the doctor who performed the autopsies was the pathologist for St. Louis County. There was no police officer participating in the investigation that was not with the St. Louis County Police Department. Also, when Mrs. Speedy called the Creve Coeur police after the shootings she was told to call the St. Louis County police. Shortly before the shootings appellant was with Karen Jackson at the Marriott Hotel, á well-known landmark near Lambert St. Louis Airport and in St. Louis County. He then had a shotgun and he told her that he was going to Gordon Meek’s apartment. From these facts and circumstances the jury reasonably could find, which it did, that appellant killed Meek and Brown in the County of St. Louis.

Assuming the above conclusion could be subject to question, appellant waived the issue of venue. The indictment alleged that the offenses of which appellant was charged occurred in St. Louis County, and he went to trial in that county without objection and with no challenge to the venue. It has long been established that an accused’s right as to the place of a trial arising under statutory or constitutional provisions is a personal privilege which may be waived. 21 Am.Jur.2d Criminal Law § 401; Annotation, 137 A.L.R. 686. Under the factual circumstances of this case appellant waived the issue of venue. State v. Page, 186 S.W.2d 503 (Mo.App.1945); Harper v. United States, 383 F.2d 795 (5th Cir. 1967).

Appellant next challenges Instruction No. 1 on the ground that “it required an affirmative finding by the jury that the appellant was guilty of murder in the first degree on both counts as a condition precedent to consideration of whether appellant was not guilty by reason of mental disease or defect as to either count.” This case was tried before the mandatory use of MAI-Cr. The language of Instruction No. 1 material to this issue was that if the jury found that appellant “did make an assault upon one James Gordon Meek as mentioned in Count I of the Indictment, and upon one Clark Milo Brown as mentioned in Count II of the Indictment, with a loaded gun, as mentioned in the evidence, and did then and there discharge and shoot said gun at and upon the body of James Gordon Meek and Clark Milo Brown, thereby inflicting a mortal wound upon James Gordon Meek and Clark Milo Brown, from which mortal wound James Gordon Meek and Clark Milo Brown died on March 10, 1973, * * * it would then be your duty to determine whether or not at the time of such conduct the defendant was ‘not guilty by reason of mental disease or defect excluding responsibility,’ under instructions of law which will not [now?] be given to you.”

Appellant argues that the instruction requires that prior to reaching the question of whether appellant was not guilty by reason of mental disease or defect, it requires that the jury find the appellant committed murder in the first degree in connection with both counts, but since the jury did not find appellant guilty of first degree murder as to Count II, it never considered the question of whether appellant was not guilty by reason of mental disease or defect as they were bound to do under the law.

The instruction did not require a finding of murder in the first degree as to both homicides or as to either. It required a finding of “an assault * * ⅜ as mentioned in Count [I or II] of the indictment.” We note that these references to the indictment had no place in the instruction. An indictment is not shown to the jury, or at least there is no occasion for it to be shown, and the jury would not know what language was there set forth. The reference to the indictment was surplusage and of no meaning to the jury. Therefore, the only message to the jury, and what any reasonable member of a jury would understand, was that if the jury found that appellant made an assault on Meek and on Brown and inflicted a mortal wound on each, it would then consider the defense of mental disease or defect. This did not require a finding that the assault constituted murder in the first degree, but only that an assault was committed which resulted in a homicide.

Appellant also challenges the conjunctive submission. The use of the word “and” in this situation was improper. But, in view of the verdict of the jury the error was not prejudicial. The instruction, when read alone, did submit that before the issue of mental disease or defect be considered the jury should find that appellant committed an assault on Meek and also on Brown which in each case resulted in a mortal wound. But, the jury found that both assaults were inflicted, and the instruction plainly told the jury that in such event “it would then be [the jury’s] duty to determine whether or not at the time of such conduct” appellant was not guilty by reason of mental disease or defect excluding responsibility. The error in the instruction was cured by the verdict and therefore was harmless. For a somewhat similar case, see State v. Niblack, 256 S.W. 769 (Mo.1924).

Instruction No. 1 was introductory in nature. Each verdict-directing instruction on murder in the first degree, murder in the second degree, and manslaughter was submitted individually with respect to each victim, and each was qualified by the phrase, “unless you find and believe from the preponderance or the greater weight of the evidence that the defendant is not guilty by reason of a mental disease or defect excluding responsibility as submitted in Instruction No. 1.” When these instructions are read together the jury was not precluded from considering the defense of mental disease as to each victim and as to each degree of homicide submitted.

Appellant next asserts error resulted because the trial court failed to instruct the jury as required by § 552.030(6) RSMo 1969.

Appellant entered a plea of not guilty by reason of mental disease or defect as authorized by § 552.030. Par. 6 of said section provides that “No statement made by the accused in the course of any [psychiatric] examination and no information received by any physician or other person in the course thereof, * * * shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding then or thereafter pending in any court, state or federal. The statement or information shall be admissible in evidence for or against him only on the issue of his mental condition, * * *. If the statement or information is admitted for or against the accused on the issue of his mental condition, the court shall both orally at the time of its admission and later by instruction inform the jury that it must not consider such statement or information as any evidence of whether the accused committed the act charged against him.” (Emphasis added.)

The State did not present any evidence from a psychiatrist in its ease in chief. Appellant presented evidence from two psychiatrists, and then the State, in rebuttal, presented evidence from one psychiatrist. Appellant made no request for and the trial court did not give the oral instructions provided for by § 552.030(6), but as stated in appellant’s brief, “the proper instruction was * * * given * * * at the close of all the evidence.” The first mention by appellant that the court should have given the oral instructions was in the motion for new trial.

When an accused enters a plea of not guilty by reason of mental disease or defect he waives his privilege under § 491.-060 RSMo 1969 to exclude testimony of doctors who have examined him for that purpose, and he also waives his privilege against self-incrimination in some respects. State v. Swinburne, 324 S.W.2d 746 (Mo. banc 1959). However § 552.030(6) purports to remove a compelling reason for an accused to be reluctant to enter such a plea by providing that the jury be instructed that it is not to consider statements by the accused to the doctor or information obtained in the course of a psychiatric examination as evidence of whether the accused committed the acts charged against him. It thus is clear that the protection of § 552.030(6) is personal to the accused, and may be waived by him. There is nothing in that section which indicates that the failure to give the oral instruction prior to the testimony of an examining psychiatrist is prejudicial error per se. The proper test is whether the failure was in fact prejudicial, and under the circumstances of this case we conclude that appellant could not have been prejudiced. First, the “proper instruction” was given to the jury orally and in writing at the end of the case and before the jury started its deliberations. We cannot assume that this instruction was ignored by the jury or that the jury was composed of persons who could not receive the intended message unless instructed on the subject more than once. Second, the purpose of the statutory requirement that the jury be orally instructed as provided for in § 552.030(6) is to protect the accused from a finding by the jury that he “committed the act charged against him” by reason of statements made by him to the psychiatrist or information obtained during an examination. But there was, in fact, no issue as to whether appellant “committed the act[s] charged against him.” In his brief he admits that he did not “contest the fact that a shooting occurred,” and in the voir dire examination and in oral agreement to the jury he stated, in effect, that he did not contest the issue whether he shot and killed the two persons. But, he argues, an admission that he committed the homicides was not an admission that he was guilty of murder in the first degree because he did not admit the necessary intent. We note, however, that in appellant’s point on argument he does not set forth or refer to any statement made by him and related to the jury by an examining psychiatrist which he contends constituted evidence that he was guilty of intent, deliberation or malice in the commission of the homicides. As a precaution, we have read the testimony of the psychiatrists, and we find no direct reference to statements by appellant which could be construed to show deliberation or malice. The nearest reference perhaps is that of Dr. Shuman, called by the State, who did not testify on direct examination to any statements by appellant indicating deliberation or malice, but on cross-examination testified that appellant said he “didn’t give a damn.” Basically, the testimony of all the psychiatrists was directed to the issue of whether at the time of the offenses appellant had a mental disease or defect.

In view of appellant’s failure to request the oral instructions or object to the failure of the court to orally instruct the jury prior to the testimony of each psychiatrist; the fact that at the end of the case the “proper instruction” was given; that there was no issue as to whether he committed the homicides; and that appellant does not point to any testimony of any psychiatrist which contained statements by him or information obtained directly tending to show that he committed murder, we conclude that the failure of the trial court to give the oral instructions called for by § 552.030(6) was not prejudicial, and that a reversal of the judgment for that reason is not called for or required.

The final point of appellant is that his conviction “was unconstitutional in that he was deprived of due process of law” because he was “unable to assist in his own defense.” This assertion in the point does not prove itself, and the point is inadequate to present an issue for appellate review. But we shall attempt to determine the real complaint rather than overrule the point because of counsel’s inadequate presentation.

Appellant argues that the conviction of a person “while he is legally incompetent violates due process of law,” and he cites Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), and § 552.020 RSMo 1969. He then contends that “when there is some evidence which would cause the court to have a bona fide doubt” that an accused could waive a hearing as to his competency, the court must order a hearing sua sponte, citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). It thus appears that appellant’s contention is that the trial court should have, sua sponte, conducted a hearing on the issue of his competency to stand trial.

The record discloses that on June 25, 1973, appellant withdrew his previously entered plea of not guilty and entered pleas of not guilty by reason of mental disease or defect excluding responsibility, and a psychiatric examination was requested. This request was sustained and the court appointed Dr. John F. Bergman to conduct an examination and report his findings as provided in § 552.020. This report is shown to have been filed. Within five days thereafter and on July 5, 1973, the State requested, pursuant to § 552.020(4), the court to order a psychiatric examination of appellant by Dr. Joseph S. Shuman. The record does not affirmatively show that a report by this doctor was filed as contemplated by § 552-030(3), but Dr. Shuman testified for the State in rebuttal, and in that testimony he referred to the report he had made. Neither the report of Dr. Bergman nor Dr. Shuman is in the record before us. Neither report was contested by appellant. Although represented by competent and experienced counsel, he made no request to the court for a hearing on the issue of his competency to stand trial. It was not mandatory under § 552.020 for the trial court to hold a hearing on that issue unless it had reason to believe it necessary to do so. Jones v. State, 505 S.W.2d 96 (Mo.App.1974).

The order of the court setting the case for trial, entered after the report of Dr. Bergman was received and presumably after the report of Dr. Shuman was received, was that appellant was fit to proceed to trial. Jones v. State, supra; Miller v. State, 498 S.W.2d 79 (Mo.App.1973). The fact that appellant had some mental problems does not establish ineompetency to stand trial. Appellant points to nothing which should have caused the trial court to have reason to believe that a hearing on appellant’s competency to stand trial should be held, and our review ofdhe record discloses nothing. We find no basis for appellant’s contention that the trial court should have acted in this respect sua sponte.

The judgment is affirmed.

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


author: TURNAGE, Presiding Judge.

text:
    Carroll L. ZAHORSKY, Respondent, v. Loween K. ZAHORSKY, Appellant.
    No. KCD 27207.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      James R. Hunsucker, Kansas City, for appellant.
    James C. Wirken and Laurence R. Tucker, Morris, Mitchel, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Loween Zahorsky filed a motion which appears to be in the nature of a writ of error coram nobis to set aside a decree of divorce granted to her husband Carroll Za-horsky. The court denied the motion and this appeal follows.

On appeal Loween contends Carroll was not a resident of Missouri at the time his petition for divorce was filed in 1967 and necessarily had not been for one whole year next preceding the filing of his petition. She contends further this totally deprived the court of any jurisdiction to grant Carroll a divorce and for that reason the decree is void. Affirmed.

Carroll filed a petition for divorce in Jackson County, Missouri in November, 1967, in which he alleged he was a resident of Missouri and had been for more than one whole year next preceding the filing of the petition. Shortly thereafter Loween filed a general entry of appearance in which she acknowledged having received a copy of the petition and agreed the court could take up the petition for divorce without further notice to her. The entry did request the court to grant custody of the minor son born of the marriage to her.

In February, 1968, Carroll appeared in court and testified he was a resident of Missouri and had been for more than one whole year next preceding the filing of his petition. He testified to further facts showing his entitlement to a decree of divorce. The court granted a divorce with a finding the allegations in Carroll’s petition were true, granted custody of the minor son to Loween, together with a judgment against Carroll for child support.

In accordance with the. divorce decree, Carroll paid Loween child support, and in 1972, Loween filed a motion asking the court to increase the amount. Subsequent thereto, Loween participated in an extended trial of a motion to modify by which Carroll sought to obtain custody of the minor son. As result of this trial, the court ordered custody changed from Loween to Carroll. During all of these proceedings, there was no question raised by Loween concerning the validity of the divorce decree.

In May, 1973, Loween filed the motion giving rise to this appeal in which she stated that Carroll had falsely stated in his petition for divorce that he was a resident of Missouri and that Carroll was guilty of perjury in the hearing on his petition by reason of the false statements which he made to induce the court to grant him a divorce. In that motion Loween requested the decree of divorce be vacated on the grounds it was void ab initio for lack of jurisdiction.

On the hearing of Loween’s motion to vacate the divorce decree, she testified she had remarried in 1972, but upon being advised there might be some question concerning the validity of her divorce from Carroll, she obtained an annulment of this marriage in the State of Kansas.

The trial court made extensive findings of fact and found that Carroll in fact was not a resident of the State of Missouri at the time he filed his petition for divorce. However, the court concluded that in order to prevent the uncertainty which would follow if parties were permitted to retry factual issues under the claim of jurisdictional defects, a party is precluded from showing that such facts did not exist except upon proceedings by appeal. The trial court relied for this statement of the law upon Hansford v. Hansford, 34 Mo.App. 262 (1889). The trial court further concluded Loween had not been diligent in seeking relief and for those reasons the court denied the motion to vacate the divorce decree.

It should be noted the finding of the court at the time the divorce was granted that “the court finds that the allegations in plaintiff’s petition are true” encompasses a finding that plaintiff had complied with the statutory residential requirements. Gomez v. Gomez, 336 S.W.2d 656 (Mo. banc 1960). The record, therefore, shows the requisite jurisdictional facts of the residence of Carroll. There is nothing in the record to indicate any jurisdictional infirmity in the divorce decree.

On this appeal, Loween contends it is necessary for Carroll to have been a resident of Missouri at the time of the filing of his petition and to have been for more than one whole year next preceding in order for the court to have jurisdiction to grant a divorce decree. She relies upon a statement in Smethers v. Smethers, 263 S.W.2d 60[5] (Mo.App.1953) in which this court stated that when a judgment is rendered by a court without jurisdiction, the judgment is void ab initio and may be attacked by anybody at any time.

The frailty in Loween’s argument is the distinction drawn in Hansford between those cases in which the record reveals an infirmity in the court’s jurisdiction and those in which the record gives no hint of any lack of jurisdiction in the court to render the judgment. In Smethers the court held the judgment was void on its face because it was clearly beyond the power of the court to enter such judgment.

The distinction is clearly drawn in Hans-ford when the court stated “where the necessary jurisdictional facts appear by the record, and are found by the court to exist, the opposing party in a divorce suit, is precluded from showing that they did not exist as a matter of fact, except upon proceedings by appeal or writ of error.” 34 Mo.App. 271. The court went on to say the prevention of perjury must be sought in the enforcement of the criminal law. In short, the court held that when a person commits perjury and the court makes a record entry which on its face shows a valid judgment, the remedy can be only by appeal, or by writ of error, or by resort to prosecution for the perjury committed.

Under this well established rule in Missouri, the judgment granting Carroll a divorce is valid upon its face and no appeal having been taken, it remains valid unless set aside in a proper action in the nature of a writ of error coram nobis.

The requirements of a writ of error coram nobis are set out in City of St Louis v. Franklin Bank, 351 Mo. 688, 173 S.W.2d 837, 846[13 — 15] (banc 1943). The court there stated the writ lies for errors of fact. The court further stated “[t]he facts must be such as affect the power and right of the court to render the particular judgment— facts which, if known, would have prevented its rendition. In a sense they must be directed against what would have been either a want or abuse of jurisdiction — at least, not mere error — if the facts had been known to the court.”

In Sigwerth v. Sigwerth, 299 S.W.2d 581 (Mo.App.1957) the court held the writ of error coram nobis was the proper remedy to be pursued when a divorce had been granted upon a finding that both the plaintiff and defendant were residents of Missouri when in fact they were not. The court stated that such fact of non-residency, had it been known to the court at the time it granted a decree of divorce, would have prevented the granting of such decree.

From the foregoing it is clear Loween followed the proper procedure by bringing a motion in the nature of a writ of error coram nobis to set aside the divorce decree. However, the trial court correctly found Loween had waited too long to bring such motion. An integral part of the rule surrounding the writ of error coram nobis was stated in the Franklin Bank case. “And the further rule is that if the facts were known to the complaining party at or before the trial, or might have been discovered by the exercise of reasonable diligence, the writ cannot be invoked.” 173 S.W.2d 846.

There is no question in this case but that Loween knew, or had information readily at hand from which she could determine that Carroll had filed a petition for divorce in Jackson County, Missouri, and was alleging the fact to be that he was a resident of the State of Missouri and had been for more than one year next preceding the date he filed his petition. Thus Loween knew in December, 1967, the false statement which Carroll had made in his petition for divorce. She further admitted she knew the divorce had actually been granted to Carroll within two or three months after it occurred in February, 1968. As noted above, Loween accepted child support payments pursuant to this decree, filed a motion to increase the allowance of child support, and engaged in a lengthy motion to modify with respect to the custody of the minor child. It was not until the custody of the child was taken from her and vested in Carroll in September, 1972, that she undertook an investigation as to validity of the divorce decree which culminated in the filing of this motion in May, 1973.

It is apparent the facts stated in the motion now under consideration were either known fully to Loween in December, 1967, or she had information readily available from which all of the facts could have been determined concerning Carroll’s claimed residence in Missouri. Obviously Loween had ample opportunity at that time to make the true facts known to the court, or at the very least, could have promptly done so within two or three months after the divorce was granted when she admits she learned the divorce had been granted.

Because these facts were known, or at the very least could have been discovered by the exercise of reasonable diligence prior to the time the divorce was granted, the writ of error coram nobis is not available to Loween in this case. However, there is a further reason expressed in Pike v. Pike, 239 Mo.App. 655, 193 S.W.2d 637, 641[10-11] (1946) as to why the denial of this motion was proper. There this court stated, “[t]he writ in the nature of a writ of error coram nobis is discretionary.” The court went on to explain it is in the public interest that any doubt concerning the validity of a divorce decree be settled as soon as possible. The court listed several reasons for this policy, including the possibility that delayed action might involve the legality of subsequent marriages and possible legitimacy of children. The court further pointed out it could unduly unsettle title to real estate and contractual rights.

It is apparent Loween waited until she was deprived of the custody of her son before she took any action to question the validity of the divorce decree. Because of her delay of five years to bring this action, she is not entitled at this time to have such divorce set aside.

Judgment affirmed.

All concur.


text:
    Champ W. ROGERS, Appellant, v. Donald Kirk PIPER, M.D., et al., Respondents.
    No. KCD 27324.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Joseph S. Levy, Joseph M. Lapin, Richard M. Shteamer, Kansas City, for appellant.
    John R. Gibson, Michael J. Jerde, Kansas City, for St. Joseph Hospital; Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, of counsel.
    Dean F. Arnold, B. William Jacob, Jr., Bagby, Benjamin & Arnold, Kansas City, for Drs. Peril and Piper, Inc., Donald Kirk Piper, Maurice F. Peril and James H. Garner, Jr.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Plaintiff, Champ W. Rogers, filed suit against Drs. Piper, Peril and Garner, and St. Joseph Hospital for alleged negligence in the treatment of injuries Rogers had received in an automobile accident. The court granted a summary judgment on behalf of all defendants on the basis that Rogers had received full satisfaction for all of his injuries from Lemmons, the other party to the accident.

On this appeal Rogers claims: (1) the physicians did not plead the affirmative defense of release; (2) the court erred as a matter of law in granting summary judgment because the modern trend in this type of case is to look to the intention of the parties rather than to the language of the release; and (3) the court erred because there were questions of fact to be litigated. Affirmed.

Rogers filed his suit against the physicians and the hospital alleging negligence in treatment given to him between November 30, 1970, and March 29, 1971. No negligence on the part of any of the defendants was alleged to have occurred after March 29, 1971, nor was any change in Rogers’ condition pleaded to have occurred after March 29, 1971.

In his petition Rogers alleged he had been involved in an automobile accident in the spring of 1970, and the negligence by the defendant physicians and hospital aggravated the injury sustained in such accident.

On January 27,1973, Rogers and his wife executed a release upon payment of the sum of $17,000. Such release stated it was to “RELEASE AND FOREVER DISCHARGE Jack T. Lemmons, his agents and servants, and all other persons, firms and corporations of and from any and all liability, actions, claims, demands or suits whatsoever, which claimants now have or may hereafter have, on account of or arising out of personal injuries or damage to person or property, or impairment of or damage to any right, including loss of time, loss of services of society, and expenses, or other damage sustained by or accruing to the undersigned as the result of an accident, casualty or event which occurred on or about the 26th day of June, 1970, at or near 10300 South 71 Highway in Kansas City, Jackson County, Missouri.” Such release further stated “that the above mentioned sole consideration is accepted in full compromise, settlement, accord and satisfaction of all the aforesaid claims and demands, including all consequences thereof which may hereafter develop as well as those already developed or now apparent.” The release continued “and it is fully understood and agreed that this agreement is in compromise and settlement of all claims of every kind.”

After the execution of such release, Rogers’ attorney entered into a stipulation for dismissal of Rogers’ suit against Lemmons with prejudice.

In the instant suit the physicians pleaded that Rogers, by a prior action, had received full and complete satisfaction for any and all injuries alleged in his petition. The physicians and the hospital thereafter filed a motion for summary judgment in which it was claimed the court should enter summary judgment because Rogers had received full accord and satisfaction and was thereby barred from any further action. In connection with this motion, request for admissions were filed, to which were attached a copy of the release executed by Rogers and his wife and a copy of the stipulation for dismissal of the suit by Rogers against Lemmons executed by the attorneys in that case. The existence and genuineness of these documents was admitted by Rogers.

Rogers first claims the granting of the motion for summary judgment was erroneous because the physicians had failed to plead the existence of a release. However, the physicians did plead that Rogers had received full satisfaction for his injuries through his settlement with Lemmons. The theory upon which the physicians and the hospital proceeded in their quest for a summary judgment was that Rogers has been fully compensated for all of his injuries, including any injuries he may have received as a result of any negligence on the part of the physicians and the hospital. The release was evidence of the settlement entered into by Rogers and the fact he had received full satisfaction for all of his injuries. The pleaded theory of full satisfaction and the same theory presented in the motion for summary judgment were consistent. All of this was fully before the court in the pleadings and admissions on file which the court is authorized to consider under a motion for summary judgment. Rule 74.04. The theory presented in the motion was pleaded and was, therefore, properly before the court.

Rogers next makes the point the granting of the motion was erroneous as a matter of law. In this point Rogers makes some contention that under Staehlin v. Hochdoerfer, 235 S.W. 1060 (Mo.1921) and Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239 (banc 1923) the court should not have granted summary judgment because Rogers still had a cause of action against the physicians and the hospital despite his release of the original tort-feasor. An examination of those cases reveals the court in Parkell found the plaintiff had not received full satisfaction for all of his injuries. In Staehlin the court found from the language of the release a cause of action against the physician had been reserved. Parkell is not applicable if Rogers in fact acknowledged he had received full satisfaction for all of his injuries. Such was the finding by the trial court which was correct. Staehlin is not applicable because the release here did not reserve any cause of action against the physicians or hospital.

It is well established in Missouri that a party may receive full satisfaction for his injuries only once. Hanson v. Norton, 340 Mo. 1012, 103 S.W.2d 1[4] (1937). Thus, if Rogers received full satisfaction from Lem-mons, there remains nothing for him to recover in this case.

The language used in the release executed by Rogers brings this case within the rule announced in McQueen v. Humphrey, 421 S.W.2d 1 (Mo.1967). In that case the court held a settlement with the original tort-feasor with nothing in the record to indicate the plaintiff did not consider the settlement as complete satisfaction for her injuries or that she intended to make a claim against anyone else constituted a full satisfaction for all of her injuries. As a result the court held a subsequent suit against physicians who had allegedly negligently treated the plaintiff was barred.

Likewise in this case there is nothing in the record nor in the release executed by Rogers to show that Rogers did not consider the settlement to be full and complete satisfaction for all of his injuries or that he intended to hold anyone else responsible for any injuries he received as a result of the accident with Lemmons.

This court has held in State ex rel. Blond v. Stubbs, 485 S.W.2d 152[3] (Mo.App.1972) that “[t]he original negligence is to be considered as a proximate cause of aggravation due to negligence in the furnishing of the medical services, and the medical treatment is not considered to be an insulating intervening cause.” Therefore, the injuries alleged by Rogers to have been inflicted by the physicians and the hospital as an aggravation of the injuries received in the accident proximately resulted from the original negligence in the accident. In that circumstance, when Rogers released Lemmons and all other persons, firms and corporations for all liability and claims rising out of personal injury suffered in the accident of June 26, 1970, the physicians and hospital were included within the phrase “all other persons, firms and corporations.” Further, when Rogers acknowledged that he received the consideration recited in full compromise, settlement, accord and satisfaction of all such claims, then it must be held that Rogers had received full satisfaction for all injuries received in the accident, including such, as were alleged to have resulted from the negligent treatment rendered by the physicians and hospital.

This conclusion is reinforced by Liberty v. J. A. Tobin Construction Co., Inc., 512 S.W.2d 886[5-9] (Mo.App.1974) in which this court stated “[i]n determining whether a release is general and disposes of the whole matter, on the one hand, or limited, on the other hand, it seems that the deciding factor of interpretation is what is released not who is released by the document. The fact that only one tortfeasor is named in the release is not conclusive as to its character. Each tortfeasor is liable for the whole damage.” There can be no doubt the release Rogers signed was general and that he acknowledged satisfaction in full for all of his injuries which included those allegedly received at the hands of the physicians and the hospital.

Rogers impliedly concedes the law is against him as it presently exists in Missouri, but urges this court should adopt the modern rule which would look to the intention of the parties to determine is an intent actually existed to release the physicians at the time the original tort-feasor was released. There does seem to be some change in the law in this situation, as noted in 39 A.L.R.3d 260. However, the view adopted herein is the firmly established law in this State which this court is bound to follow.

Rogers next contends the entry of summary judgment was erroneous because there were remaining fact questions to be determined, such as the intention of Rogers to release the physicians and hospital; whether the physicians treated some other injury not related to the accident; whether part of the consideration flowed to the wife; and whether the consideration received constituted compensation for the malpractice claims presented.

Most of these questions have been decided by what has heretofore been stated. On the remaining question of an independent and separate injury being treated, Rogers, in his petition, stated the treatment given by the physicians was such that it aggravated the condition existing as the result of the accident. With reference to part of the consideration going to the wife, the release was a release of her claims as well as those of Rogers. However, the release was general in its terms and stated it was in full accord and satisfaction of all claims which would include both the claim Rogers had and that of his wife.

Finally Rogers did not avail himself of the right to file affidavits or present any other matter to the court which would be proper under Rule 74.04 in order to show the existence of any fact issue. Absent a showing of any fact issues, the question here presented as to the effect of the release on whether or not Rogers had in fact received full satisfaction for all of his injuries, including the alleged medical malpractice, was a question of law which was properly and correctly decided by the court.

The judgment is affirmed.

All concur.