author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Cora R. DRAKE, Respondent, v. Buford W. GREENER and Aliene D. Greener, Appellants.
    No. KCD 26952.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Elliot Norquist, Harlan D. Burkhead, Kansas City (Lathrop, Koontz, Righter, Cla-gett, Parker & Norquist, Kansas City, of counsel), for appellants.
    William L. Pollard, William H. Norton, Jr., Norton & Pollard, North Kansas City, for respondent.

      Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Action in equity by plaintiff-grantor to set aside her deed purporting to convey certain real estate to herself and defendants as cograntees. The court found the conveyance in question was fraudulent, without any consideration, the result of undue influence exercised by defendants over plaintiff at a time when she was sick, ill, and infirm, and was done while defendants were in a confidential relationship with her; set aside the deed, and declared defendants to have no interest in the land in question.

Appellants contend “the judgment * * is not supported by ‘clear, cogent, and convincing evidence’ necessary to invoke the ‘most extraordinary power of a court of equity,’ ” Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59 (1943), and therefore should be reversed.

Appellants argue, on the issue of deference to the trial court’s findings, that “there are * * * no serious conflicts in the oral testimony On the issues which the Court decided”; on the issue of lack of consideration, that “there is no evidence in the record whatsoever as to consideration or the lack thereof,” citing Spaeth v. Larkin, 325 S.W.2d 767, 771[4] (Mo.1959), that a voluntary conveyance, without valuable consideration, is valid as between the parties, and Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69, 70 (1943), that “the deed was one of gift, hence the question of consideration is not involved”; that a confidential relationship per se, even if established, does not warrant the cancellation of a deed unless there is other independent evidence of undue influence, Mintert v. Gastorf, 417 S.W.2d 101 (Mo.1967); on the issue of fraud, that “there is no evidence which even remotely measures up to the required showing for the plaintiff to prevail on fraud,” citing Gibson v. Smith, 422 S.W.2d 321, 327 (Mo.1968), that “the difficulty of proving fraud does not dispense with the necessity of making the required proof. Nor is fraud ever presumed”; and, on the issue of undue influence, “all that the plaintiff by any stretch of the imagination has proved is that * * * she was in a weakened physical condition and therefore perhaps a susceptible target for undue influence.”

Respondent, of course, considers that the evidence sustains her burden of proof and, in particular, shows her deed was obtained without any consideration through both undue influence and fraud, and, therefore, the judgment should be affirmed.

This case is for review upon both the law and the evidence, with due regard to be given to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01, subd. 3(a), (b), V.A.M.R.

Plaintiff Cora R. Drake is the widow of John Drake who died in June, 1967; code-fendant Aliene D. Greener is the daughter by a former marriage of John Drake, deceased, and codefendant Buford W. Greener is the husband of Aliene Greener and Executor of the Estate of John Drake, deceased.

The property in question was purchased by the late John Drake in 1961, prior to his marriage to plaintiff. Cora and John Drake were married in September, 1961, and lived as man and wife in the subject house and property, Lot 58, Hamilton Heights, an addition in the City of Gladstone, Clay County, Missouri, until his death June 12, 1967. Mrs. Drake acquired the property under her late husband’s will which devised his real estate to his wife.

On June 22, 1967, one week after the burial of her husband, Mrs. Drake suffered a heart attack and was hospitalized at North Kansas City Memorial Hospital until July 14, 1967. Mrs. Drake’s medical treatment '¿uring hospitalization, post-hospitalization care during convalescence, and subsequent attention until a second heart attack in January, 1969, was administered by Dr. James W. Hall. Mrs. Drake also had the services of a full-time housekeeper, Harriet Collier, upon her release from the hospital for two or three months or until the latter part of 1968.

On July 30, 1967, plaintiff executed the deed in question purporting to transfer her property from plaintiff to plaintiff and the codefendants in joint tenancy. Although the deed expressed a consideration of “Ten Dollars and other valuable considerations,” there is no evidence or claim that any other consideration moved between the parties. Mrs. Drake was 71 years of age. She never remembered signing the deed or going to the office of the notary public, now deceased, who was purported by the deed to have taken her acknowledgment. She had a period of mental confusion after her heart attack and at times things “went blank.” She never intended to convey any interest in the property to Mr. and Mrs. Greener. Her first knowledge that she had conveyed any interest in her property to defendants was in the fall of 1968 when she received her tax statement showing Mr. and Mrs. Greener as cotenants. She was shocked at this revelation; prior good relationship between her and Mr. and Mrs. Greener came to an end; and, as early as January, 1968, she had retained counsel to assist her with her affairs.

Buford Greener admitted that Mrs. Drake did not ask him to have a deed made. “I suggested that she might do it this way with advice from * s ⅞ Betty Bond [one of Mr. Greener’s attorneys assisting him in the Estate of John Drake, deceased].” Mr. Greener had the deed prepared by Mrs. Bond and took it to Mrs. Drake for execution July 80, 1967. At the same time he presented an “Application of Surviving Spouse For Family Allowance” to Mrs. Drake which also had to be signed and acknowledged in order that she might draw a cash allowance of $3,500 for that purpose from the estate of her deceased husband. Mr. Greener maintained that he explained to Mrs. Drake what the deed meant in that it would put the property “in the name of Aliene Greener, myself and her.” He did not tell Mrs. Drake that in the event she predeceased Mr. and Mrs. Greener that the deed would preclude her blood daughter, although he knew “this would be the normal thing.” Mr. Greener also evidenced some confusion with respect to where and when the deed was acknowledged by the notary public, O. W. Fry, who was deceased at trial time. He denied any intention to take Mrs. Drake’s property from her, but he was also unwilling to deed it back to her.

Aliene Greener gave as her version that Mrs. Drake told her that since the property had belonged to her father, and since her own daughter was in Texas and would not want the house, it should go to her. She also gave as part of her version that she was worried about her dad’s house going into probate and standing vacant for a year if anything happened to Mrs. Drake and conveyed this thought to her. This led to Mr. Greener’s advice that a joint tenancy deed might be the answer.

After the deed was signed, Mrs. Drake continued to live in her house. She made the mortgage payments, paid the taxes and sewer assessments, and paid repair and maintenance costs, all without help from defendants despite their claim of ownership of the property in joint tenancy with Mrs. Drake.

Theresa Lou Roberts, Mrs. Drake’s own daughter by a prior marriage, came to Kansas City following her mother’s heart attack June 22, 1967, and stayed until her mother was released from intensive care about a week later. She then returned to her home and work in Texas, keeping in daily telephone communication with her mother until she left the hospital. She continued her telephone communication on alternate days for several months. She also communicated with Dr. Hall, Kay Mackey and Sue Lett, neighbors of Mrs. Drake. Her mother never mentioned any conveyance of her home to Mr. and Mrs. Greener until 1968 when she received a tax statement with their names on it. She verified her mother’s shock following receipt of this knowledge and advised her mother to get a lawyer. By virtue of her personal observations of her mother and telephone conversations with her, Miss Roberts felt her mother experienced mental confusion and lack of recall during her hospitalization and convalescence.

Katherine Mackey met Mrs. Drake in the summer of 1967, joined Miss Roberts at the hospital June 22, 1967, following Mrs. Drake’s heart attack, visited Mrs. Drake in the hospital once or twice a week after her release from intensive care, and saw her similarly after her release from the hospital. She observed Mrs. Drake’s weakened mental and physical condition, and inability to recall. Mrs. Drake called her in 1968 when she received the tax statement and asked her to explain what was meant by the presence of the Greener names on it.

Sue Lett, a neighbor and friend of Mrs. Drake, first became acquainted with her in June, 1967. She made observations of Mrs. Drake similar in frequency and substance to those made by Mrs. Mackey. She also noted Mrs. Drake’s complete dependency on her housekeeper, Mrs. Collier, following her release from the hospital; confirmed Mrs. Drake’s confusion with respect to the tax statement, and advised her to consult an attorney.

Ernestine Whitters, a neighbor and friend of Mrs. Drake since 1961, saw Mrs. Drake in her home two or three times a day following her hospitalization. She noted her lack of awareness and forgetfulness. She and Mrs. Collier collaborated in an attempt to teach Mrs. Drake to knit but could not accomplish much due to Mrs. Drake’s condition. In her opinion, Mrs. Drake would not have been competent to execute legal documents on July 30, 1967, and not until Christmas of that year did she begin to act like herself.

According to Dr. James Hall, Mrs. Drake’s illness beginning June 22,1967, was a coronary or heart attack. Dr. Hall had little verbal communication with his patient and would not necessarily have noted any nonresponses or confusion on hospital records because he anticipates this with elderly patients and does not consider it a serious medical problem. His records show weakness complaints while his patient was hospitalized, and weakness complaints and leg numbing on August 11, 1967, after her discharge. At this time he prescribed vitamin shots as a psychogenic aid to Mrs. Drake. Medications prescribed by Dr. Hall in the hospital and after discharge, particularly Coumadin, an anticoagulant, related to problems of blood circulation resulting from her heart attack and existent hardening of the arteries. Her arteriosclerosis and heart attack could produce an interference with her mental process. Dr. Hall felt his patient made a reasonably good convalescence, but she was not “the best patient” because she did not follow his prescribed program. She “disappeared” from his practice in September, 1967, until she was readmitted following a second heart attack on January 14, 1969.

Aliene Greener called the ambulance to take her stepmother to the hospital when she had her heart attack. She visited Mrs. Drake daily during her hospitalization and did not observe any mental confusion. Upon Mrs. Drake’s discharge, Mrs. Greener visited in her home approximately three times a week, took her to the doctor on one occasion, and conducted a garage sale with her in the fall of 1967. In her judgment, there was nothing to indicate that Mrs. Drake was not in possession of her faculties on July 30, 1967.

Buford Greener also visited Mrs. Drake in the hospital and observed her at home after her discharge. He “felt she understood” the nature and character of her acts with respect to distribution of her property. He denied any force in causing Mrs. Drake to execute the deed in question.

Fay Collison, an aunt of Aliene Greener, talked with Mrs. Drake after her husband’s funeral and did not feel she exhibited any mental confusion. She did not see Mrs. Drake again until August 24, 1967, at a birthday party. She saw no difference in Mrs. Drake’s ability to speak or converse.

Reverend George Hilbert was the minister of Christ Unity Church in North Kansas City where Mr. and Mrs. Greener and Mrs. Drake are members. He first met Mrs. Drake when her husband died and he conducted the funeral service. He saw Mrs. Drake in the hospital on one occasion for fifteen to twenty minutes of conversation, probably of a spiritual nature, in which she said or did nothing to indicate mental confusion. According to him, Mrs. Drake joined his church in October, 1967, and made contributions from time to time. Mrs. Drake did not recall joining the Unity Church, but did discover she had made some “heavy donations” upon examination of her canceled checks.

The question is whether there was an absence of consideration for the deed in question coupled with undue influence or fraud in its procurement to justify its cancellation by the court.

The general rule is that mere absence of consideration is not sufficient to warrant relief by way of equitable cancellation of an executed contract or deed in the absence of some additional circumstance creating an independent ground for granting cancellation, such as fraud or undue influence. But where a person has been induced to part with a thing of value for little or no consideration, equity will seize upon the slightest circumstance of fraud, duress, or mistake for the purpose of administering justice in the particular case. 13 Am.Jur.2d 516, Cancellation of Instruments, § 21; Meyer v. Schaub, 364 Mo. 711, 266 S.W.2d 620, 624[8] (1954); Radford v. Radford, 388 S.W.2d 33, 39[5] (Mo.1965).

It is equally well recognized that undue influence exists in cases of confidential or quasi-confidential relationship where the power of a person receiving a gift or other benefit has been so exerted on the mind of the donor by improper acts or circumvention that the donor was induced to act contrary to his deliberate judgment, reason or discretion. Factors given careful consideration in determining whether a deed should be canceled on the ground of undue influence include the extreme age of the grantor, his impaired physical condition, his mental debility not necessarily amounting to complete incompetency, and the absence of competent and bona fide independent advice. 13 Am.Ju^.2d 523, Cancellation of Instruments, § 30; Hamilton v. Steininger, supra, 168 S.W.2d l.c. 68[6, 7]; Dingman v. Romine, 141 Mo. 466, 42 S.W. 1087, 1088 (1897); Morris v. Morris, 4 S.W.2d 459, 463[4] (Mo.1928); Wilhoit v. Fite, 341 S.W.2d 806, 813[l-3] (Mo.1960).

Also a court is particularly inclined to cancel a contract (or deed) on the ground of fraud in its procurement where a confidential relationship was involved and instrumental in the execution of the contract. Not only fraudulent or unfair misrepresentation but also fraudulent or unfair concealment may be sufficient ground for cancellation of an instrument if the fact concealed from the party seeking such relief is material and one as to which there is a duty on the opposing party to disclose. 13 Am.Jur.2d 510, Cancellation of Instruments, § 15; Hudspeth v. Zorn, 292 S.W.2d 271, 275 (Mo.1956); Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87, 93 (1948); and fraudulent representations will entitle the aggrieved party to relief where the misrepresentations concern something unknown to the injured party who has been induced to act from some special confidence reposed in the other party, Bailey v. Smock, 61 Mo. 213, 217 (1875).

Although the deed in question recites a consideration of “Ten Dollars and other valuable considerations,” sufficient to support the deed as a conveyance, defendants concede that they paid nothing by way of consideration. Any claim they make that the deed was one of gift or grant in lieu of testamentary disposition is overcome by the grantor’s testimony that she never intended to convey any interest in her property to the defendant grantees. This is reinforced by her retention of counsel to assist her immediately upon learning that such a conveyance existed. Accordingly, the court properly found the deed was without consideration. Frey v. Onstott, supra, 210 S.W.2d Lc. 93.

The relationship between the grantor and her purported grantees was not a classic fiduciary relationship such as that of attorney and client, conservator and ward, trustee and beneficiary, broker and principal, or partners, etc. Mrs. Drake’s husband died forty-eight days before she executed the deed in question purporting to convey an interest to Mr. and Mrs. Greener in real estate which she acquired upon the death of her husband by virtue of his will. Both Mr. and Mrs. Greener undertook to advise her with respect to disposition of her real estate. Mr. Greener was the executor of the will, and he procured her execution of the deed in question at the same time he obtained her signature on the probate form necessary to her claim for family allowance from the estate funds, and she had no other interest in the personal property of the estate. Too, a friendly relationship existed between Mrs. Drake and Mr. and Mrs. Greener throughout her six-year marriage to Mrs. Greener’s father and after his death until the fall of 1968 when Mrs. Drake discovered that Mr. and Mrs. Greener were now cotenants in the title to her inherited real estate. Appellants do not deny the presence of a confidential relationship. In these circumstances, the court properly found that there did exist a confidential relationship between grantor and grantees. Youtsey v. Hollingsworth, 178 S.W. 105 (Mo.1915); Bailey v. Smock, supra. Such circumstances also show the opportunity of the grantees to exercise undue influence on the grantor. Morris v. Morris, supra, 4 S.W.2d Lc. 463[3],

As previously indicated, it is proper to consider physical and mental conditions of the grantor in determining whether she may have been unduly influenced. At the time Mrs. Drake purportedly signed the deed in question, she was 71 years of age, had lost her husband forty-eight days previously, had sustained a heart attack thirty-eight days previously, had been hospitalized until sixteen days before the act, and was infirm in both body and mind at the time of the act. Such a combination of age and physical and mental infirmity is enough that “the suspicions of equity are aroused.” United States v. Pettyjohn, 93 F.Supp. 177, 179-180[1] (D.C.W.D.Mo.1950). In these circumstances, the grantor was susceptible to an exercise of influence.

Another consideration in determining the presence of undue influence is an unnatural disposition of property. Morris v. Morris, supra. This is present in this ease in that the conveyance from Mrs. Drake to Mr. and Mrs. Greener would operate to preclude Mrs. Drake’s natural daughter and heir, Theresa Roberts; and this effect of the deed was known by the grantees and was not made known to the grantor.

A confidential relationship has been previously determined to exist between the grantor and grantees. Advanced age and physical and mental impairment of the grantor which made the grantor susceptible to an exercise of undue influence, opportunity in the grantees to exercise their influence, an unnatural and unintended disposition made of the grantor’s property, active participation of the grantees in suggesting that the deed be made and executed, and the absence of bona fide independent advice to the grantor with respect to the deed, are all shown by the evidence. When these factors are coupled with the previously determined absence of consideration, a classic case of undue influence to warrant cancellation of plaintiff’s deed has been made. Morris v. Morris, supra. Accordingly, the court properly found the deed resulted from undue influence.

Appellants cite four cases deserving of distinction. In Hamilton v. Steininger, supra, the unsuccessful plaintiffs were the heirs at law of the deceased grantor who had the deeds in question in her possession for several days at the time of execution, and she was of sound mind and showed no regret, repudiation, or disaffirmance of her deeds during her remaining lifetime. By contrast, Mrs. Drake never had the deed in question in her possession, she never intended to make it, and she took steps to repudiate and disaffirm it immediately upon learning of its existence and effect. In Hedrick v. Hedrick, supra, the trial court found the evidence insufficient to justify cancellation. The grantor was deceased, and the deed in question was made to the benefit of her daughter after independent advice from a lawyer. By contrast, Mrs. Drake’s purported deed was procured for the benefit of Mr. and Mrs. Drake to the exclusion of her own daughter and was procured without giving the grantor an opportunity to seek independent advice. In Spaeth v. Larkin, supra, the plaintiffs were six of the grantor’s daughters and the deed in question was made to the benefit of yet another daughter. Again, by contrast, Mrs. Drake’s purported deed benefited persons to the exclusion of the single natural object to her bounty and she took steps to repudiate it at an early opportunity after learning of its existence. In all three of these cases the deceased grantor was shown to be of advanced age and eccentric, but there was no indication that they suffered impairments which would reduce their competency to make a deed at the time they executed their deeds. In Mintert v. Gastorf, supra, the unsuccessful plaintiff-grantor admitted he had had independent advice of counsel with respect to his deed, and any appearance of undue influence on the part of defendants-grantees was sufficiently rebutted to provide a fact question which the trial court resolved against the grantor.

Similarly, with respect to the presence of fraud, the confidential relationship between grantor and grantees, the absence of consideration, the undue influence exercised upon the grantor by grantees, and the added factor of concealment from the grantor of the effect of her purported conveyance, permit this case to be termed a classic case of fraud in the procurement of a deed to warrant its cancellation on that ground also. Frey v. Onstott, supra; Bailey v. Smock, supra; Holliway v. Holliway, 77 Mo. 392 (1883); Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121 (1912); Morriso v. Philliber, 30 Mo. 145 (1860). Accordingly, the court properly found the deed was fraudulent.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    CITY OF GREEN RIDGE, Missouri, Plaintiff-Respondent, v. Steve E. BROWN and James Lee Carlson, Defendants-Appellants.
    No. KCD 26696.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    James T. Buckley, Sedalia, for defendants-appellants.
    James B. Wilson, Windsor, for plaintiff-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

In these consolidated appeals both defendants were charged with having violated Ordinance No. 138 of the City of Green Ridge, Missouri. Upon conviction in the city police court they appealed to the Circuit Court of Pettis County where, by agreement, a jury was waived and their cases were consolidated for trial. There, each defendant was found guilty as charged and fined $75.00. Each defendant timely appealed and a joint brief was filed.

During the evening of May 26, 1972, and the early morning hours of May 27, 1972, what may be aptly described as an overly exuberant “fracas” occurred in the city park of Green Ridge with “an awful congregation of young people and older people” participating. The “fracas” consisted of loud noises, the throwing of “cherry bombs”, the racing of cars, and “the drinking of beer”. The evidence failed to attribute any particular conduct to either defendant while the “fracas” in the park was in progress. The city marshal, with the assistance of some deputy sheriffs, broke up the fracas and ordered the crowd to disperse and go home. The two defendants were “a part of the crowd” at the scene of the “fracas”, but, instead of going home when the “fracas” was “broken up”, they proceeded over to the front of the city hall. There the defendants became loud and raucous and verbally abused the city marshal by calling him vile names. Thereupon they were arrested. There is no evidence that they were asked or given notice to cease or abate their loud and raucous conduct and name calling in front of the city hall prior to their arrest. They were subsequently charged with violating Ordinance No. 138 of the City of Green Ridge.

Ordinance No. 138 is titled “Nuisances”. It contains seven sections. Only those sections relevant to this appeal will be mentioned. Section Two purports to define and declare what constitutes “nuisances” within the provisions of the ordinance. Paragraph (b) of Section Two reads as follows: “All pursuits followed or acts done by any person to the hurt, injury, annoyance, and inconvenience of the public;”. Section Three requires the city marshal to give notice to any person committing or suffering the continuance of a nuisance to abate the same within the time “limited in such notice.” Section Four provides that any person “who shall not abate or remove such nuisance within the time specified in the notice given him or her by the City Marshal, as specified in the preceding section, shall be deemed guilty of a misdemeanor, and be subject to a fine of not less than One Dollar nor more than One Hundred Dollars.”

The verified informations filed against the defendants were identical. Each defendant was charged as follows: “That the above named defendant did at the City of Green Ridge and within the corporate limits thereof did on or about the 27th day of May, 1972, violate Section 2(b) of Ordinance Number 138 of the Revised Ordinances of the City of Green Ridge, entitled nuisances duly and legally passed by the City Council of the City of Green Ridge, Missouri, by then and there unlawfully and willfully, did create a public nuisance by yelling and name calling of the City Marshal, contrary to said ordinance, and against the peace and dignity of the city.” The informations are silent as to any allegation that defendants were given notice by the City Marshal to abate the alleged nuisance and that they failed or refused to do so within a prescribed time.

This court notes, parenthetically, that any question of whether Ordinance No. 138 was misappropriated as a basis for prosecution of defendants is academic since the infor-mations filed by the city attorney against each defendant were, in fact, predicated solely upon an alleged violation of the ordinance mentioned.

On appeal defendants seek, imperfectly, to raise but one issue — that the ordinance under which they were convicted is unconstitutionally vague. Defendants failed, both at the trial level and in this court, to mention any constitutional section or the substances of any constitutional provision, federal or state, which they claim has been violated, thereby rendering the ordinance in question unconstitutionally vague. Consequently, no justiciable constitutional issue is presented on appeal. See City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (banc 1949), frequently cited regarding procedural requirements to raise, preserve and present constitutional issues for appellate review.

However, this court’s inquiry on appeal is not terminated. Rule 28.02, V.A. M.R., provides, in part, that “[ajllegations of error respecting the sufficiency of the information . . . shall be considered upon an appeal although not raised in the trial court or preserved for review.” This rule has been judicially construed as imposing a duty at the appellate level to determine the sufficiency of an information even though never questioned at the trial or appellate level. State v. Vandergriff, 403 S.W.2d 579, 580 (Mo.1966) and State v. Rose, 428 S.W.2d 737, 741 (Mo.1968). In Kansas City v. Stricklin, 428 S.W.2d 721, 724 (Mo. banc 1968) involving an appeal by a defendant convicted of multiple ordinance violations, the court stated that Rule 28.02 is “substitutional for §§ 512.010 and 547.-270, R.S.Mo.1959” and “[t]his rule [Rule 28.-02] provides that no allegation of error respecting the sufficiency of the information . shall be necessary upon appeal.” City of Independence v. Peterson, 437 S.W.2d 168 (Mo.App.1969) constitutes further authority for the proposition that Rules of Criminal Procedure applicable to appellate courts in criminal cases are likewise applicable at the appellate level in cases involving municipal ordinance violations.

Rule 37.18, respecting initiation of ordinance violations, provides that “[t]he information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” (Emphasis added.) An information purporting to charge a person with violation of a penal ordinance is insufficient and cannot sustain a conviction if it fails to allege facts constituting a violation of the ordinance upon which it is predicated. Kansas City v. Graham, 502 S.W.2d 411 (Mo.App.1973); Kansas City v. Franklin, 401 S.W.2d 949 (Mo.App.1966); and City of Raytown v. Roach, 360 S.W.2d 741 (Mo.App.1962). Although an information charging an ordinance violation is not subject to the same degree of strictness and particularity applicable to testing the sufficiency of indictments and informations in criminal cases (due to the hybrid nature of prosecutions for ordinance violations as civil actions with quasi criminal aspects), they must, nevertheless, set forth facts which if found true would constitute the offense prohibited by the ordinance. City of Kansas City v. Narron, 493 S.W.2d 394 (Mo.App.1973), and cases therein cited.

Do the informations filed against defendants set forth the constituent elements of a violation of Ordinance No. 138, thereby legally galvanizing the convictions and imposed fines? No refined exercise in semantics or hair-splitting syntax is required to demonstrate that the informations in question fall woefully short of meeting even the relaxed criterion applicable to determining the sufficiency of informations charging violations of penal ordinances. The informa-tions purport to charge each defendant with commission of a nuisance as defined and declared in “Section 2(b) of Ordinance Number 138” (as previously noted any question as to the “unconstitutional vagueness” of paragraph (b) of Section Two of Ordinance No. 138 is not reached in this opinion due to defendant’s failure to properly raise, preserve or present same for appellate review). Ordinance No. 138 clearly discloses that commission of a defined and declared nuisance, in and of itself, does not invoke the penal provisions of the ordinance. Section Three of Ordinance No. 138 requires the giving of notice by the city marshal to a person claimed to have committed a nuisance within the purview of the ordinance and a time within which to abate same. Section Four of Ordinance No. 138 subjects a person committing or suffering the continuance of a nuisance to penal sanctions only if he has been given notice and has timely failed thereafter to abate the nuisance. An information charging commission or sufferance of a proscribed nuisance, standing alone, is not sufficient. Notice and failure to abate the nuisance within the time prescribed in the notice are conditions precedent to the imposition of penal sanctions under Ordinance No. 138 as written. In order to charge defendants with having violated the ordinance, the informations in question should have additionally alleged that defendants were given notice, verbal or written, to abate the purported nuisance and that they failed to do so within the time prescribed in the notice. Failure to do so rendered the informations fatally insufficient to charge defendants with a violation of Ordinance No. 138. Parenthetically, a careful review of the record fails to disclose any evidence that either defendant was given notice to abate the purported nuisance within a prescribed time and thereafter refused to timely comply (this facet of the appeals in question again raises the spectre of whether or not Ordinance No. 138 was misappropriated as a basis for prosecuting defendants).

The fatal insufficiency of the informa-tions makes it impossible to passively ignore them or relegate them to oblivion irrespective of the rightful indignation and umbrage felt by the city marshal and citizens of Green City springing from the “fracas” and untoward conduct of defendants. Nor can settled and binding rules of procedure be ignored and temporary rules sua sponte improvised to reach a contrary result in this case.

The judgments in both consolidated cases are reversed and each defendant is ordered discharged.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Dwight Eugene COUCH, Appellant.
    No. KCD 26878.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      _ James L. McMullin, Hill, McMullin & Wilson, Kansas City, John J. Cosgrove, Kansas City, of counsel, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J. and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The appellant (hereinafter called “defendant”) was tried on an amended information charging him with assault with intent to rape with malice, and was convicted. The jury was unable to agree upon a sentence and the trial court sentenced him to 25 years in the penitentiary. His motion for a new trial was thereafter overruled and this appeal followed.

The defendant’s pro se brief raised a point not theretofore urged and which is dispositive of this appeal. He asserts therein, as error, the fact that the trial court permitted the state to file at the beginning of the trial an amended information wherein the original charge of assault with intent to rape without malice was amended to charge assault with intent to rape with malice, which he asserts charges a new and different offense carrying a greater penalty. It should be here noted that the amendment by the state was made without objection (and indeed, with the consent of the defendant and his counsel); defendant signed a written waiver of preliminary hearing on the amended information; and no allegation of such error was asserted during the trial nor in the motion for a new trial. Nevertheless, since the point now made is an attack upon the sufficiency of the information upon which the defendant was tried and convicted (and indeed, therefore, an attack upon the jurisdiction of the trial court) the same must be considered upon this appeal. Criminal Rule 28.02, V.A. M.R., provides in pertinent part:

“ * * * Allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be considered upon an appeal although not raised in the trial court or preserved for review. * * * ”

The statutory sections of the criminal code here involved are Sections 559.180 and 559.190 RSMo 1969, V.A.M.S. Section 559.-180 in pertinent part provides:

“Assault with intent to kill. Every person who shall, on purpose and of malice aforethought, shoot at or stab another * * * or by any other means or force likely to produce death or great bodily harm, with intent to * * * ravish * * *, shall be punished by imprisonment in the penitentiary not less than two years.”

Section 559.190 in pertinent part provides:

“Punishment for assaults. Every person who shall be convicted of an assault with intent to * * * rape * * *, the punishment for which assault is not here-inbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years * * * ”

It has been held that the basic distinction between the offenses covered by these sections is the existence of malice, which brings the charge within Section 559.180 RSMo 1969, V.A.M.S., the greater offense which carries a maximum penalty of life in the penitentiary. For an information to fall within the mold of this section, it must allege an assault upon a specified person, the existence of malice, the means used and the intent. State v. Gillespie, 336 S.W.2d 677, 680[3] (Mo.1960); State v. Lane, 371 S.W.2d 261, 264[4] (Mo.1963).

Section 559.190 RSMo 1969, V.A.M.S., is intended to cover a less aggravated assault than Section 559.180 RSMo 1969, V.A.M.S., and carries a maximum penalty of five years in the penitentiary. State v. Hagerman, 244 S.W.2d 49, 51[1] (Mo.1951).

“The two offenses proscribed by §§ 559.-180 and 555.190 are distinct and different, both in degree and in severity and range of punishment.” State v. Gladies, 456 S.W.2d 23, 25[3] (Mo.1970).

While certain amendments to information as to form or substance may be permitted, it has long been held that such amendments are not permissible if the effect thereof is to charge an offense different from that charged in the original information. Cr. Rule 24.02; State v. Thompson, 392 S.W.2d 617, 620[1, 2] (and cases therein cited) (Mo.1965); State v. Gladies, supra, at l.c. 25.

The amended information upon which the defendant was tried in pertinent part charged as follows:

“Amended Information Assault with Intent to Rape With Malice
⅜ ⅜ ⅜ sf: ⅝! *
Now comes James F. Speck Assistant Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the Court, that Dwight Eugene Couch, * * * on the 15th day of July, 1972, at the County of Jackson, State of Missouri, did then and there unlawfully feloniously and of his malice aforethought make an assault, forcible and against her will upon one * * * with the felonious intent the said * * * to ravish and carnally know; against the peace and dignity of the State.” (Emphasis supplied)

This amended information is identical to the original information except for the name of the charging officer and the addition of the words italicized “and of his malice aforethought”. The amendment was intended by the state to charge an offense under Section 559.180 and thus attempted to charge a greater offense, distinct and different from the charge originally lodged under Section 559.190. The state, counsel for defendant, and the court proceeded through the trial, verdict, judgment, allocution and sentencing (for five times the maximum penalty provided in Section 559.190) upon this assumption. It is clear, however, that such alteration of the charge by amendment fell squarely within the proscription of Rule 24.02 and the cases cited supra, and the proceedings were therefore a nullity.

There is a further reason why the amended information is fatally defective. Even if such an amendment were permissible, the information upon which defendant was tried did not properly charge an offense under Section 559.180. An essential element of a charge under that section (in addition to malice aforethought) is the “use of means or force likely to produce death or great bodily harm”. State v. Berry, 361 Mo. 904, 237 S.W.2d 91, 93 (1951); State v. Gladies, supra (456 S.W.2d 23, 25[3] Mo. 1970).

It follows as a matter of irresistible logic that the amended information herein was both basically impermissible (as an attempt to charge a new and different offense) and technically imperfect (as failing to properly hypothesize the necessary elements of the new charge). The trial court thus had no jurisdiction of any charge under Section 559.180, the subject matter of the proceeding, and therefore could not sentence the defendant thereon. “Such lack of jurisdiction of the subject matter may not be waived” by any action of the defendant or his counsel. Montgomery v. State, 454 S.W.2d 571, 575[6] (Mo.1970); State v. Gladies, supra (456 S.W.2d 23, 25[5] Mo.1970).

That defendant’s substantial rights were thus affected is obvious, because as noted above, he received a sentence from the court of five times the maximum penalty provided under Section 559.190 and under the information then pending against him.

The only other point urged by the defendant to reverse his conviction relates to alleged prejudicial statements by the prosecuting attorney in his opening and closing arguments to the jury. A proper record was preserved by defense counsel in the trial, after-trial motion and upon this appeal with reference to this point. The record has been carefully studied and the authorities reexamined and the conclusion reached that the arguments both alone and in accumulation were, indeed, improper and prejudicial to the defendant.

Because this case must be reversed and remanded in any event, it would unduly lengthen this opinion to detail the evidence constituting the factual background and excuse advanced by the state to justify these arguments. In summary, however, all of the objectionable arguments dealt with the likelihood of the defendant repeating his alleged crime upon other girls in the future and the danger thus posed to the community if the jury failed to convict him.

The justification for these arguments adopted by the trial court and by the state here is that some two hours after the alleged assault and attempted rape on the complaining witness in this case and her escape from his car, the defendant was apprehended some four or five blocks from the scene of the assault in his car with the motor running and the lights out, parked in the vicinity of an all-night grocery store. From this fact, the state urges that the inference could be drawn in argument to the jury that he was waiting for another victim and would repeat his crime in the future if not imprisoned. This inference was not permissible, the argument about possible future criminal actions of defendant was improper, and the complained of arguments were highly prejudicial. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 527-529[4, 5, 6] (banc 1947); State v. Nickens, 403 S.W.2d 582, 585-589 (Mo. banc 1966); State v. Raspberry, 452 S.W.2d 169, 172-173 (Mo.1970); State v. Heinrich, 492 S.W.2d 109, 113 — 116[7, 9] (Mo.App.1973). The argument in this ease does not fall clearly within the ambit of a legitimate analysis of the evidence, the drawing of valid inferences therefrom, or the general “law and order” argument held not to be prejudicial error.

For the reasons herein stated, the judgment is reversed and the cause is remanded for further proceedings in accordance with this opinion.

All concur.

      . The proscription of Rule 24.02 does not apply where the amended information properly charges a lesser included offense. State v. Gladies, 456 S.W.2d 23, 25[3] (Mo. 1970); State v. Warfield, 507 S.W.2d 428, 430[1] (Mo.App.1974).


author: GUNN, Judge.

text:
    GENERAL AMERICAN LIFE INSURANCE CO., Plaintiff-Respondent, v. Edna V. ISABELL et al., Defendants, Edna V. Isabell, Defendant-Appellant, City of St. Louis et al., Defendants-Respondents.
    No. 36174.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 25, 1975.
    Motion for Rehearing or to Transfer Denied May 19, 1975.
    Hayes & Hayes, James P. Hayes, St. Louis, for defendant-appellant.
    Kortenhof & Ely, Joel D. Monson, St. Louis, for plaintiff-respondent.
    Jack L. Koehr, City Counselor, James J. Gallagher, Associate City Counselor, John

      R. O’Malley, Asst. City Counselor, St. Louis, for defendants-respondents.
   GUNN, Judge.

This appeal arises out of an interpleader action brought by General American Life Insurance Co. (General American), plaintiff-respondent, seeking a declaratory judgment to determine the rights of opposing claimants to certain hospital and medical benefits.

Appellant Edna Isabell makes claim to her husband’s hospital and medical insurance benefits as widow and administratrix of her husband’s estate, her husband being a named beneficiary of the insurance benefits. Appellants Hayes make claim to the benefits through attorneys’ lien as attorneys for Mrs. Isabell and her husband’s estate. The City of St. Louis and the Institute of Medical Education and Research, Inc., respondents, make claim to the benefits as assignees of the insurance policy benefits. Judgment was rendered in favor of the City of St. Louis and Medical Education and Research, Inc., and Mrs. Isabell and the Hayes have appealed. We affirm.

The case was tried on a meager stipulation of facts which provides the following essentials for our decision. Clarence Isabell was an employee of the Alpha Tank and Metal Manufacturing Company, (Alpha Tank). Pursuant to a union contract, Alpha Tank agreed to pay the premiums for hospital and medical insurance coverage for Mr. Isabell and other members of his union working for the company, and for that purpose a group health insurance policy was maintained with General American. On August 30, 1971, Mr. Isabell entered St. Louis City Hospital No. 1 for treatment of an illness. Upon admission to City Hospital, he assigned all his interest to hospital, medical and surgical benefits under the insurance policy to the City of St. Louis and the Institute of Medical Education and Research, Inc. Mr. Isabell died while in the hospital after accruing hospital and medical expenses of $3,686.80. There is no dispute that General American is liable for the full amount of Mr. Isabell’s hospital and medical expenses. However, Mrs. Isabell, in her capacity as widow of Mr. Isabell and admin-istratrix of his estate, filed a claim for the full amount of the insurance benefits. Her contention — as well as the Hayes’ — is that the assignment of insurance benefits executed by Mr. Isabell was void under § 432.-030 RSMo 1969, V.A.M.S. which prohibits the assignment of future wages. Mrs. Isa-bell alleges that the insurance benefits are wages within the meaning of § 432.030 and that their assignment prior to the time the actual hospital and medical expenses became due, constituted an illegal assignment of future wages. We disagree.

The controlling issue of this case is whether benefits arising from hospital and medical insurance policies paid for by an employer are wages within the meaning of § 432.030. We conclude that they are not. In Missouri it has been determined that generally where an insurance policy is not a personal contract and its assignment is not expressly forbidden, the policy and the benefits thereunder may be assigned. Magers v. National Life & Accident Ins. Co., 329 S.W.2d 752 (Mo. banc 1959); Butterworth v. Missouri Valley Trust Co., 362 Mo. 123, 240 S.W.2d 676 (1951); Smith v. Taylor, 289 S.W.2d 134 (Mo.App.1956); Cornell v. Mutual Life Ins. Co. of New York, 179 Mo.App. 420, 165 S.W. 858 (1914). There is no contention that the health insurance policy which we consider here contains any interdiction against its assignment or the assignment of its benefits. However, there is a remarkable paucity of case law on the issue with which we are dealing.

Statutes prohibiting wage assignments are an outgrowth of the philosophy that the wage earner and his family are to be protected from unscrupulous creditors and that the wage earner is to be restrained from brash and imprudent spending of hard earned income. Heller v. Lutz, 254 Mo. 704, 164 S.W. 123, 127 (1914), upheld the constitutionality of restrictions on wage assignments, emphasizing that the bar on assignments of future wages was for the protection of “the unfortunate and improvident from the unscrupulous and overreaching” and was a wholesome exercise of the State’s police power. Service Purchasing Co. v. Brennan, 226 Mo.App. 110, 42 S.W.2d 39, 42 (1931), also comments that the purport of the statute barring future wage assignments was to protect wage earners against their own recklessness and from the avarice of dishonest money lenders.

The purpose of the insurance policy was to pay for hospital and medical expenses, and by the assignment of those benefits to respondents, the intendment of the policy has been accomplished. Denial of the assignment of the hospital and medical benefits to a hospital would frustrate the entire design for which the insurance coverage was intended. Inasmuch as the insurance benefits here have been assigned to be used for the exact purpose for which they were purchased — to provide coverage and payment for hospital and medical benefits — the purpose and philosophy behind the wage assignment prohibition of § 432.030 has no application. Benefits derived from a hospital and medical insurance policy paid for by an employer pursuant to an employment contract do not fall within the term “wages” as used in § 432.030. While premiums paid by an employer for the insurance coverage may constitute a form of compensation for work performed by an employee, such premiums are not used to provide for the day-to-day necessities of life to be purchased by a wage earner’s wages. Thus, trepidation that an assignment of future wages will deprive a family of its livelihood does not exist when an employee assigns to a hospital the benefits to be received under a hospital and medical insurance policy pri- or to the time the actual expenses have accrued, for such assignment of benefits is not an assignment of future wages within § 432.030. The protection of the wage earner from his own folly and the rapacity of others, which is the purpose of the wage assignment proscription of § 432.030, is not at the heart of this case.

The appellant relies on W. W. Cross & Co. v. NLRB, 174 F.2d 875 (1st Cir.1949), which held that group health and accident insurance benefits were a mandatory subject of collective bargaining. The court held that those benefits constituted “wages” within the phrase “rates of pay, wages, hours of employment, or other conditions of employment.” National Labor Relations Act, § 9(a), 29 U.S.C. § 159(a) (1970). The court reasoned that since the phrase included “rates of pay,” “wages” as used therein, must have been intended to encompass forms of compensation apart from rates of pay. It is evident that in holding such benefits to be wages, the court was doing so within the.context of the specific statute it was construing. Both the language and purpose of the National Labor Relations Act differ from those of Missouri’s wage assignment statute. “Wages” as used in the latter statute was intended to have a less inclusive meaning.

We conclude that benefits from hospital and medical insurance are not wages within the meaning of § 432.030, and their assignment to the agency or agencies providing hospital, surgical or medical care before such expenses become due is not a void assignment of future wages within the meaning of § 432.030.

In view of our decision, we need not rule on the point raised by Mrs. Isabell that she was a proper representative for bringing a class action for the collection of medical benefits.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . The City of St. Louis provides the hospital services, and the Institute of Medical Education and Research, Inc. provides the medical and surgical services for City Hospital No. 1.

      . “432.030. Assignment of wages. — All assignments of wages, salaries or earnings must be in writing with the correct date of the assignment and the amount assigned and the name or names of the party or parties owing the wages, salaries and earnings so assigned; and all assignments of wages, salaries and earnings, not earned at the time the assignment is made, shall be null and void.”

      . See also Bond v. Dentzer, 494 F.2d 302 (2nd Cir. 1974); Speilberger Bros. v. Brandes, 3 Ala.App. 590, 58 So. 75 (1912); Downs v. American Mutual Life Ins. Co., 19 A.D.2d 376, 243 N.Y.S.2d 640 (1963); 6 Am. Jur.2d, Assignments § 49 (1963).


text:
    STATE of Missouri, Respondent, v. Paul Francis HANRAHAN, Appellant.
    No. KCD 26566.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Rehearing Denied June 2, 1975.
    Larry 0. Denny, Kansas City, George L. DeLapp, Jr., Cameron, for appellant.
    Robert B. Paden, Pros. Atty., Maysville, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The appellant (defendant) was convicted of operating a motor vehicle while in an intoxicated condition (second offense). Section 564.440(2) RSMo 1969, V.A.M.S. He was found guilty by a jury and his punishment assessed at thirty days in the county jail.

Defendant seeks reversal of this conviction on the sole ground that the trial court erred in allowing into evidence, over objection, the results of a breathalyzer test given to defendant “without first requiring the state to establish that the test was administered in accordance with the methods for operating a breathalyzer promulgated by the state division of health”.

The record evidence pertinent to the resolution of this appeal may be briefly summarized.

The defendant had gone to the American Legion Hall in Cameron, Missouri at about 10:00 o’clock p. m. on May 27,1972. During the evening, he testified, he had consumed five or six beers and left the hall at about 1:30 a. m. on May 28, 1972, driving a 1965 Chevrolet automobile. At about 2:00 a. m., the defendant was observed by Trooper J. W. Martin of the Missouri Highway Patrol, driving northbound on Highway No. 69 in' DeKalb County, Missouri. Trooper Martin pulled in behind defendant’s car and followed it northbound, during which time he observed defendant’s vehicle go into the southbound lane, and at the intersection of Highways No. 69 and 36 it had forced another car off of the pavement. At this time, Trooper Martin stopped the defendant. He asked the defendant for his operator’s license and when he seemed to be having difficulty finding it, Martin asked the defendant to get out of the car. Martin then noticed an odor of alcohol about the defendant and that he was very unsteady on his feet. He gave the defendant the Miranda warning and asked him if he would take a breathalyzer test, to which the defendant consented. During this interval, Trooper S. E. East arrived at the scene and then the defendant was taken by Martin to the Missouri Highway Patrol zone office at the City Hall in Cameron in Martin’s patrol car; where the breathalyzer test was administered by Trooper East about twenty minutes after the arrest. Martin testified that during the period between the arrest and the test, the defendant had nothing to eat or drink. He stated that at the zone office he observed that the defendant’s eyes were bloodshot and watery and that his attitude varied from polite and cooperative to antagonistic.

Trooper S. E. East testified that he was southbound on Highway No. 69 when he observed defendant’s car approaching from the opposite direction, partially in the southbound lane. He radioed Trooper Martin, gave him a description of the car, turned his patrol car around, proceeded north, and came upon Martin and defendant stopped at the intersection of No. 69 and No. 36 Highways, when defendant was getting out of the Chevrolet. The defendant informed the troopers that he was not going with them. He was unsteady on his feet, had difficulty finding his operator’s license, had an odor of alcohol about him, and his eyes were watery and bloodshot. East administered the breathalyzer test to the defendant about twenty minutes later at the Cameron City Hall.

Trooper East had been with the Missouri Highway Patrol for ten years; he had received a forty-hour course in the use of the breathalyzer, including both laboratory work and actual testing; on May 28, 1972 he was licensed by the Missouri Division of Health to operate the breathalyzer machine; and had actually given 45 or 46 tests during his work as a state trooper. His license was made part of the record at the trial.

Trooper East testified that in administering the test, he worked from an “Operational Check List”, as he did in all such tests. This required progressive steps in the use of the machine which Trooper East described in detail to the jury and which procedures he followed in the defendant’s test on May 28, 1972. The technical details need not be here stated, except that the end result was that the instrument gave a reading of blood alcohol by weight. He further testified that each breathalyzer machine used by the Missouri Highway Patrol, including the one used by him in the test on defendant at Cameron, is checked each month to see if it is operating properly and accurately.

All of this testimony as to the procedures employed was admitted without objection. The trial record then discloses the following, during the direct examination of Trooper East:

“Q (By Mr. Paden) And after you balance (sic) the instrument, did you obtain a reading?
A Yes, sir, I did.
MR. DELAPP: Objection, Your Honor. No proper foundation showing the accuracy of the macine (sic).
THE COURT: Overruled.
MR. DELAPP: Your Honor, May I approach the bench.
(WHEREUPON, the following proceedings were had in the presence of but out of the hearing of the jury:)
MR. DELAPP: Your Honor, in accordance with quite a few of the Missouri cases starting with St. Louis versus Becker, the Court of Appeals and the Supreme Court have consistently ruled that it is upon the party offering a measuring device in evidence to prove its accuracy and there is no evidence as to the accuracy of that machine.
V ⅜ ⅜ ⅜ ⅜ ⅜
THE COURT: Objection is overruled.
Q (By Mr. Paden) You may answer the question? (sic)
A Yes, sir. The reading was 0.23% blood alcohol.” (Emphasis supplied)

Also, the defendant’s Motion for a New Trial raises three allegations of error, each of which is leveled basically at the accuracy of the machine and the resulting reading. The alleged error now asserted in defendant’s brief, pertaining to the methods for operating a breathalyzer promulgated by the State Division of Health, emerges there for the first time, and, therefore, is not properly preserved for our review. However, both theories of alleged error can and will be dealt with on this appeal.

The breathalyzer machine is now considered a reliable machine for the measurement of blood content of alcohol by analysis of exhaled breath (alveolar air) from the lungs and the defendant does not contend otherwise. Blydenburg v. David, 413 S.W.2d 284, 288[2] (Mo. banc 1967); State v. Becker, 429 S.W.2d 290, 291—293[2] (Mo.App.1968). The trial position of the defendant (then represented by other counsel than here) was that the particular machine used in the test by Trooper East was not affirmatively shown to be in an accurate condition of repair.

There is not one scintilla of evidence in this record, nor even any doubt or inference raised by examination of Trooper East or otherwise, that the machine was not functioning properly [as was the situation in the case of State v. Beimeke, 500 S.W.2d 257 (Mo.App.1973) relied upon by defendant].

Nor were the qualifications, by training and experience, of Trooper East to administer the test, ever questioned. He was licensed by the Division of Health and testified with meticulous care and specific detail as to compliance with the operational checklist which was a part of his training and function. His competence as an expert in this field was primarily a question for the trial court, unless a clear abuse of discretion appears. State v. Kramme, 491 S.W.2d 24 (Mo.App.1973). There was no evidence of any kind that in the exercise of his expertise he did not comply with the regulations of the Division of Health.

At the very least, it is apparent that the state made a prima facie case that the machine was operating properly, was used in a standard manner, and that the results were accurate. Also, the results obtained were stoutly confirmed by other evidence of defendant’s condition. State v. Hendel, 468 S.W.2d 664 (Mo.App.1971); State v. Barker, 490 S.W.2d 263, 271-272[9] (Mo.App.1973); State v. Forester, 490 S.W.2d 671 (Mo.App.1973).

The case of State v. Sinclair, 474 S.W.2d 865 (Mo.App.1971), cited by defendant, is clearly distinguishable. There, the person performing the test was shown not to be qualified and the results were stated in terms of alcohol content by volume and not weight, a standard no longer acceptable under the amended statute.

The trial court properly admitted the testimony of Trooper East and the' judgment is therefore affirmed.

All concur.


author: PALMORE, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Gordon C. ENOCH, Jr., Appellee.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Jim Robinson, Dept, of Highways, Frankfort, Kenneth S. Baker, Jackson, Lewis D. Jones, Flemingsburg, for appellant.
    Bruce Stephens, Jr., Hazard, Richard C. Ward, Craft, Barrett, Haynes & Ward, Hazard, for appellee.
   PALMORE, Justice.

This is a highway condemnation case in which the interest of the landowner consisted of mineral rights only. The actual taking embraced 32.52 acres, but this acreage was so located that it separated or “landlocked” another 31.39 acres from the remainder of the owner’s mineral tract. In accordance with the instructions, which by stipulation treated the acreage taken and the landlocked acreage as separate tracts from the mineral tract as a whole, a jury awarded $9,000 as the fair market value of the 32.52 acres of mineral rights taken and $6,000 ($15,000 less $9,000) as the difference in fair market value of the landlocked 31.39 acres of mineral rights immediately before and after the taking, totalling $15,000. The highway department appeals from a judgment substituting $24,000 for the $15,000 awarded by the jury’s verdict.

At the time the instructions were given the landowner made a timely motion that the instruction with reference to the landlocked acreage be confined to its value immediately prior to the taking, because there had been no evidence that it had any value afterward. For purposes of this opinion it may be assumed that this position was correct. Nevertheless, the trial court denied the motion and instructed the jury to find before and after values for the landlocked acreage and to award the difference. The verdict thereafter returned by the jury, finding a before value of $15,000, after value of $9,000, and a difference of $6,000, was unambiguous and entirely consistent with the instructions.

The trial was held and completed on March 19, 1973. On March 27, 1973, the landowner served a “Motion for Judgment N.O.V. and/or To Correct Verdict of Jury” which in substance and effect asked that the 'verdict be amended to reflect an award of $15,000 rather than $6,000 for the diminution in value of the landlocked acreage. In due course this motion was granted and a judgment was entered accordingly. In the judgment it is recited that during the course of the trial the court had refused to permit the parties to stipulate that “this property was a total taking with no after value.”

The only ground on which a motion for judgment n. o. v. can be granted is that the movant asked for and was entitled to a directed verdict at the close of all the evidence. Clay’s Kentucky Practice, CR 50.02, Comment 4. Obviously such a judgment can never be proper in a condemnation case if there is any conflict in the valuation evidence. In this case, there were three estimates of the value of the 31.39-acre mineral rights, ranging from $1950 to $59,191. It would not have been possible for the trial court to direct a verdict fixing this value. Hence there was no sustainable basis for a judgment n.o, v.

Nor was it proper for the trial court to alter the verdict after the jury had been discharged. See Faman v. Lexington Ice Co., 8 K.L.R. 97 (1886); Romans v. McGinnis, 156 Ky. 205, 160 S.W. 928 (1913); Louisville & N. R. Co. v. Far-ney, 295 Ky. 8, 172 S.W.2d 656, 659 (1943). There was nothing wrong with the verdict anyway. The problem consisted of an erroneous instruction, for which a new trial ordinarily is the only remedy. Amending the verdict to reflect what it would or should have been had the instructions been different is not an acceptable method of correcting errors in the instructions.

It may be thought that this result exalts form over substance, because the jury did in fact find the before value of the landlocked minerals, which is all it should have been required to find. We know, however, that jury verdicts generally represent compromises on an over-all figure. A juror who agreed to the before and after figures because he was willing to award $6,000 for this tract may not have been willing to award $15,000 for it. When the instructions assign to a jury the responsibility of fixing the amount of an award there can be no “verdict” unless the jurors arrive at a conscious intent to award a certain amount or amounts of money. Theoretically, placing a value on a piece of property and actually awarding that sum of money to its owner in a condemnation suit ought to be one and the same, but experience persuades us that it is not necessarily so.

The landowner did not move for a new trial. Whether the time has expired in which a new trial may be granted or ordered by the trial court is a question we do not reach. Cf. CR 59.02, 59.04, 6.02.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: GARDNER, Commissioner.

text:
    Alton MOORE, Jr., Appellant, v. COMMONWEALTH of Kentucky.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Rehearing Denied June 27, 1975.
    Geoffrey P. Morris, Staff Atty., Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee.
   GARDNER, Commissioner.

Alton Moore, Jr. and Edward Earl Stover were convicted of the rape of three young girls, and sentenced to life imprisonment without privilege of parole in each case. Moore was convicted also of detaining another girl for the purpose of having carnal knowledge of her and was sentenced to seven years’ imprisonment. Separate appeals were filed.

The court has carefully considered each of the assignments of error and is of the opinion that no prejudicial error was committed by the trial court. Since one of the assignments of error, namely, that the trial was conducted in Jefferson County when the rape, if any, occurred in Oldham County, presents an issue which this court has never directly ruled on, we believe it advisable to discuss the question briefly.

According to one of the victims, appellants abducted the victim in Jefferson County and took her to Oldham County where they forced her to have sexual intercourse with them. KRS 452.550 provides : “Where an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different c-ounties, the prosecution may be in either county in which any of such acts occurs(Emphasis added.) The initial abduction was a sequential part of carrying out the purpose of having carnal knowledge of their victim. Accordingly venue was in either Jefferson County or Oldham County.

The judgment is affirmed.

All concur.


author: RUSSELL, Judge.

text:
    Robert Irwin GWIN et al., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 24, 1975.
    NOTE: Certiorari Denied as to Gwin and Howard only, May 12, 1975.

      Eulyse M. Smith, Memphis, for Gwin.
    Anthony J. Sabella, Memphis, for Par-tee.
    Walker Gwinn, Memphis, for Howard.
    R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Arthur T. Bennett and Leland M. McNabb, Asst. Dist. Attys. Gen., Memphis, for defendant in error.
   RUSSELL, Judge.

OPINION

Plaintiffs-in-error, Robert Irwin Gwin, Floyd L. Partee and Bobby Lee Howard appeal their respective convictions for first degree murder (in the perpetration of a robbery) and one hundred (100) year penitentiary sentences. A fourth accused, Percy Lee James, was granted a severance because mental illness required his commitment to Central State Hospital. Gwin and Partee have retained counsel, while Howard is represented by the Public Defender.

On January 5, 1972, the Silver Saver Grocery Store in Memphis was robbed and a handy man at the store, Jessie Rogers, was shot. He died of his wounds eighteen days later.

Plaintiffs-in-error question the legal sufficiency of the convicting evidence. The State’s evidence included several eye-witnesses who identified Gwin as being a participant in the robbery, and as the one who shot Rogers. Gwin also gave a free and voluntary statement admitting his part in the robbery and fatal shooting. Partee was identified by two witnesses as being an active participant in the robbery, during which he was said to have brandished a gun and demanded money from the cashier, and shot the cashier. Partee also gave a free and voluntary statement admitting these facts. The third plaintiff-in-error, Howard, had his car placed at the crime scene. An eyewitness testified that Howard “looked like” the driver of the car. Howard freely and voluntarily gave a statement in which he admitted that he transported the other participants to and from the robbery scene and that the robbery was his idea. He also admitted sharing in the fruits of the robbery.

We hold that the convicting evidence is legally sufficient, and the total evidence does not preponderate against the verdict and in favor of innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); State v. Grace, Tenn., 493 S.W.2d 474 (1973).

Error is assigned upon the trial court’s denial of severances. It is clear from this evidence that each of the plaintiffs-in-error was involved in the planning and consummation of this robbery-murder, and that there was such an overlapping of the proof as to make a joint trial desirable as a practical matter. Unless clear prejudice resulted to one or more of the defendants, so that an abuse of the trial judge’s discretion in the matter is made to appear, we will not disturb his action on appeal. Gant v. State, 3 Tenn.Cr.App. 658, 466 S.W.2d 518 (1969); Williams v. State, Tenn.Cr.App., 491 S.W.2d 862 (1972). We find no such prejudice, and overrule the assignment.

The third assignment of error, also commonly assigned by all three, complains of the admission into evidence of the incul-patory statements, on the ground that this was a violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1969). That rule is that an accused’s right of cross-examination secured by the confrontation clause of the Sixth Amendment to the federal constitution is violated where, upon a joint trial with a non-testifying co-defendant, the co-defendant’s confession inculpating the accused is admitted into evidence, even though the trial judge instructs the jury not to consider the confession against the accused but only against the confessor.

In the case sub judice, only Gwin failed to take the stand. Hence, it is only the plaints of Partee and Howard as they go to the admission into evidence of Gwin’s statement that facially raise a Bruton question. To further bring the question into focus, not only did the trial judge instruct the jury that they could consider the respective statements only against its maker, but each was redacted to substitute “blank” for the names of the other participants. It is also relevant to reiterate that all had given statements, not just Gwin.

While it is arguable that Bruton violations occurred as to Partee and Howard, despite the redaction of the statements, Taylor v. State, Tenn.Cr.App., 493 S.W.2d 477 (1972), we have held that where all three co-defendants confessed and there wasn’t even a redaction but only a proper instruction from the court to consider each confession only against its maker that no Bruton violation occurred. O’Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597 (1970). In the case sub judice, we had both a redaction and individual confessions. Additionally, the U.S. Supreme Court has held that a Bruton violation does not call for a reversal where such incompetent evidence was merely cumulative and the other evidence was so overwhelming that the court could conclude beyond a reasonable doubt that the error was harmless. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L. Ed.2d 284 (1969). We do not find a Bru-ton violation, in the total context of this case; but even if we did, the error would obviously be harmless beyond a reasonable doubt.

Plaintiffs-in-error contend that the trial judge improperly interrupted them during opening statements and cross-examination. We have examined this assignment of error and find it to be wholly without merit. The trial judge sometimes interrupted in a quest for clarity, but quite properly so. The assignment is overruled.

The fifth assignment of error is grounded upon the overruling of the pro se preliminary motions, writs and pleas of plaintiffs-in-error, the evidentiary record of which fills five volumes. Habeas corpus was properly denied, a motion to suppress evidence was correctly granted in part, and a plea in abatement bottomed upon an alleged systematic exclusion of minority groups from the grand jury was found not to be supported by the facts. State v. Johnson, 220 Tenn.'49, 413 S.W.2d 694. A “change of venue” to another division of the Criminal Court of Shelby County) was denied, and we find that this was neither arbitrary nor prejudicial. Francis v. State, Tenn.Cr.App., 498 S.W.2d 107 (1973). This assignment is without merit.

Next, the contention is made that the trial court erroneously interrupted defense counsel’s cross-examination of Mrs. Leon Grusin. The record reflects that this witness was extensively cross-examined, requiring thirty-six (36) pages of transcript to record. There was no denial of the fundamental right of cross-examination. The trial judge did not abuse his large discretion in the control of cross-examination. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1962).

Gwin assigns as error that his arrest was illegal. It is a sufficient answer to say that the arrest without a warrant was permissible under T.C.A. § 40-803, upon quite adequate probable cause. Gwin also complains of not receiving a prelimi-ary hearing. The record does not show that he sought a preliminary hearing prior to indictment. The statute which gives the right to a preliminary hearing, T.C.A. § 40-1131, expressly qualified the right with the necessity for a request “prior to presentment and indictment”, and this language controlled when this indictment was returned on February 25, 1972. (A subsequent 1974 amendment adds language which enlarges the right and permits the abatement of an indictment in some circumstances where no preliminary hearing was held.) Gwin also complains of not having counsel for the preliminary hearing that he did not have, an obviously meritless assignment. While our Supreme Court has recently made clear that there is a statutory right to a preliminary hearing in Tennessee and that such a hearing is a critical stage of the proceedings against a defendant entitling him to counsel at that time, McKeldin v. State, Tenn., 516 S.W.2d 82 (filed at Knoxville, November 12, 1974), the statutory right was not as broad when this prosecution was commenced and it cannot be said that Gwin had such an absolute right. Certainly if he had no right, in the context of this case, to a preliminary hearing, then he had no right to counsel to represent him at a proceeding not held.

Finally, Partee assigns as error that State’s witnesses who were in a position to identify the robbers did not identify him. He was identified by two witnesses. The assignment goes to the weight of the evidence, and this has been resolved by the jury’s verdict.

We affirm all three convictions.

MITCHELL and DWYER, JJ., concur.


text:
    William R. CARTER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 14, 1975.
    Certiorari Denied by Supreme Court May 12, 1975.
    Richard R. Clark, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for appellee.
   RUSSELL, Judge.

OPINION

Appellant, William R. Carter, appeals from the dismissal of his petition for the writ of habeas corpus, filed in Davidson County where he is incarcerated in the penitentiary under sentences pronounced in the Criminal Court of Shelby County. While technically no evidentiary hearing was held upon the petition, a hearing was held in which Carter’s counsel elaborated upon the facts alleged in the petition and petitioner’s theory of the facts was accepted as true and found by the learned trial judge to constitute an insufficient basis for relief. We concur and affirm the dismissal of the petition.

Habeas corpus relief is sought upon these facts: that Carter was convicted of burglary in the Criminal Court of Shelby County on February 1, 1960, and sentenced to not less than nor more than three years; that he escaped from the workhouse on April 22, 1960, and left the State; that he served a six months sentence for burglary in California beginning August 26, 1960; that he served one year in Oregon beginning September 1, 1961, for assault and battery; that he served another year in Oregon beginning September 29, 1962, for grand theft; that he was convicted five or six times in the State of California on misdemeanor charges and served these sentences in the workhouse in the State of California; that he went to Oregon in 1964 and 1965 and there served two different workhouse sentences for misdemeanors before returning to California; that in 1965 or 1966 he moved to Washington State and maintained a clean record until returning to Tennessee in 1972; that in 1973, in a routine check by his new employer, the City of Memphis, his fugitive status was uncovered and he was summarily reincarcerated; that about two weeks later he again escaped; that he was subsequently captured and convicted of felonious escape for the most recent escape and given an additional one year penitentiary sentence and sent to the penitentiary, from which incarcerations he now seeks release. He contends that Tennessee authorities had constructive notice of his incarcerations in California and Oregon, that he should have been extradited back to Tennessee, and that the sentences there effectively paid his incarceration debt in Tennessee by being concurrent as a matter of law, and that his last escape should not be considered a crime since under his reasoning he was being illegally held.

There is no valid speedy trial issue here, since Carter was not tried for the first escape. In the initial case that we are dealing with Carter had been tried and simply voluntarily escaped punishment. Tennessee never waived its right to exact the balance of the sentence by failing to catch up with the escapee, who had traveled about as far from Tennessee as he could go and still remain in the contiguous United States. The fact that he was convicted in those states under his correct name is not constructive notice to Tennessee of his availability and whereabouts, as there undoubtedly are hundreds of William R. Carters in this country. Service of jail time in another jurisdiction during a fugitive status certainly does not double as service of the punishment escaped from. There is no contention that he ever, even after returning to this State, gave himself up.

We hold that Carter has not yet served his consecutive Tennessee sentences, and affirm the denial of his petition for the writ of habeas corpus.

WALKER, P. J., and MITCHELL, J., concur.