*1 <46
Mode v. State. 2d 350 W. Opinion 30, 1961. delivered October 4, 1961.]
[Rehearing denied December Brasil Brasil, Holt, & Park & Holt and Hardin, Bar- appellant. Hardin, ton S Attorney Holt,
Frank
Thorp
General,
Thomas,
Attorney
appellee.
Asst.
General, for
Ed. F.
Associate Justice. From a con-
McFaddin,
degree
viction of second
murder for the homicide of
prosecutes
present
D. L.
Lee Mode
appeal.
Russell,
appeal
The first
Mode v.
(cid:127)47 cause remanded an instruction. The concerned error convicted of second again Mode was and, retrial, *2 present appeal. prоsecutes now murder and degree trial not first did in the error instruction trial. in the second occur to he subsequently- a only exceptions,
With few in the for new trial the motion the- noted, assignments in the assignments are .the same as the appeal present since the evi appeal, for new trial motion first practically were rulings offered and the made dence pre rule case” in both trials. The of “law same that was point from now appellant urging any cludes Rankin v. Scho on the first appeal. as error assigned L. I. M. & S. Co. Ry. St. 674; Ark. 98 W. field, 440, 81 S. Ry. L. I. M. S. Hill, St. & Ark. 123 v. 92 S. W. 484, 760; Ford 926; and DeLambert, Co. v. 61, Ark. 178 W. 120 S. In 2d 469. Fish, Motor v. Ark. 346 S. W. Co. 270, 232 State, Bowman v. 80, Ark. 129 this Court 168, 93 S. W. ‘‘ ’’ applicable law of held the rule of the case is also eases as to civil such cases, criminal as well rule in In 24 C. “Crimi 690, other J. jurisdictions. Law” “Former Decision topic, nal under 1840, § are Law from sixteen jurisdictions of Case.” Cases statement: cited sustain this appellate the determination
“Generally, are or as to all record which court within the questions law will be the have been raised might decided that ease in case.” proceedings subsequent The text also : says in the same
“Hence, appeal decision prior to authorize case as to the sufficiency evidence on a subse- the law the case conviction ... is is the same evidence quent appеal, where practically involved.” is appeals
Our established rule in long felony in the motion this will every assignment consider the assignment for new of whether trial, regardless -48
argued in the Martin State, 151, briefs. In 206 v. Ark. 242, 174 2d we said: S. W.
‘‘
brought
For reversal he has
forward in his motion
assignments
for a
trial
new
fourteen
of error. While
appellant,
argues
alleged
in his
but one
error—
brief,
support
evidence is
not sufficient to
the ver-
duty,
appellant
charged
dict—it becomes our
since
felony,
alleged
with a
all
consider
other
errors con-
argued
tained in the motion
new
trial, whether
appellant’s brief or
not. Eveland
use
v.
of Fos-
Helena,
Ark.
sett, 189
W. 2d
Hook
221;
74 S.
Van
v.
Knighton
673;
S.W.
Ark.
S. W.
аnd Babers
*3
1055,
See also Ark. S. W. 2d 623. application foregoing the of rules means that appellant precluded urging any the is now from as error assignment present in the motion for new trial appeal assignment if in contained the motion appeal, trial for new in the first a and based on record exception. prevents appel- This is sound rule:1 it an failing argue point appeal lant from to first the in possible ground order to save it as a reversal for should he at be convicted a second trial, and thus obtain a suc- involving cessive number of with trials, each an identical previous ruling ruling argued a in trial, which was not previous aрpeal. on the comparison assign-
We have made a careful of the present ments contained in the motion new trial the appeal, against those contained in motion the for new appeal. trial in the first Under of the rule “law of the proceed case,” we eliminate all such, and we now to assignments concerning discuss the matters which were by appeal. not foreclosed first particularly This demonstrated at bar the case wherein the opinion appeal language: “Appellant on the first concludes with the argues points, examined, other several error all of which we have but we giving find no other than of Instruction No. 9.”
I. Testimony Jerry Russell At The Former Trial. Of Jerry transcript testified in first and a trial, Russell testimony present of his was read at the trial after the had offered evidence that witness could not be Appellant found. claims the Court committed error in alloAving transcript testimony read to the jury. The efforts to locate the witness were shown subpoenas considerable detail: were returned “non- est,” the State Police had been unsuccessful in search grandparents for the and the witness, of the witness they testified that did not know where he was. In the light shoAAdng, of such we find no error committed allowing jury Trial the State read given Avitness the former trial. Stats, applicable Section 28-713 is the statute, and says, testimony may alia, inter that such be read former jury any to the “. . . when for reason the former may witness not be available.” There was such show- ing objections in this case. The to the content Jerry the witness, Russell, are foreclosed supra. rule of “law the case,”
II. *4 Relationship Retween Mr. Mode And Mrs. Russell Subsequent Eggle- To The Avitness, Homicide. The Clara pictures (wife ston, introduced of Mrs. Mildred Russell deceased) of the taken in in Sallisaw, Oklahoma, July, and 1960. The Avitnessalso that in June, testified August, going Mrs. Russell was then the under living name of Mildred Mode and was a trailer court in with Lee inMode Oklahoma. Twо other Sallisaw, wit- pictures nesses also as to testified Mrs. Mildred of Rus- sell taken about the same time in Sallisaw, Oklahoma. admitting In such Avitnesses, of these the Trial Court ruled: repeat
“The Avill at court this time that this testi- mony tending togetherness to show or this association parties, the that is, of two Mildred Russell Lee Mode, shedding purpose of is admitted the show, if it does .for upon light, any kill- light, the it shed motive for if does ing the trial of this case and to relation- in the involved prior light, ship parties, to the if it does shed such the of resulting difficulty in the of D. L. Rus- or trouble death any other is not considered and it .be for sell, purpose.” ruling. Hornsby In no in the find error Court’s
We
Hornsby was accused
260 W.
v.
Hоrnsby’s
killing
and infatu
Mr. Fells because of
love
of
allowed
In that case
Trial
ation Mrs. Fells.
for
Hornsby
written Mrs.
had
to be introduced
letters
jail.
they
put
Court affirmed
were
in
This
Fells after
ruling
saying:
Trial Court,
permitting
in
not err
“The
did
court
appellant
to Mrs. Fells after
letters of
introduce the
they
jail.
put
as
letters were identified
in
These
were
dispute
appellant,
and he does not
letters of
the
they
protestations
They
with
were filled
were his letters.
corroborate her
and tended to
Fells,-
love for Mrs.
appellant
was in love with
effect
to the
prove a
Fells,
time he
and tended
her at the
killed
appellant
killing
part
Fells.
motive on the
may show
‘The State
v.
Ill Evidence Good Character Deceased. is This of point 'the that has given us the- most serious concern.2 Assignment No. 43 in the motion for neAv trial reads:
‘‘The court in erred admitting of Ted L. over Welborn, the objection exceptions de- to fendant, the effect of D. L. Bus- sell was good; that he aAvas peaceable, law-abiding citizen; Avhichruling of the court the defendant at the time objected and duly saved his exceptions.” This assignment cannot be disposed of rule “laAv of the case” because, in the first trial, thеre was no objection character of the de- ceased. But in the trial from Avhence comes this appeal, the folloAAÚngoccurred Avhen the Avitness Welborn Avas testifying for State on rebuttal: Did “Q. ybu D. L. Bussell prior to his knoAv death?
A. Yes, sir. Was
Q. he resident of Faulkner County?
A. He was. you reputation among knoAvhis
Q. Did those Avho being him abiding kneAv laAv citizen? MB. HOLT: We object that, as being improper. BY THE COUBT: Your objection avíII be over- ruled.
MB. HOLT: our exceptions. Save point argued appellant’s urged This not in was brief but was argument. previously the oral Because of our rule mentioned —that felony assignments cases this Court examines all in the motion for point properly assign new trial —this before us because it an felony ment in the motiоn for new trial. The rule cases is different cases, from the rule in civil in which we onlv latter consider noints listed the briefs.
52
A. I do. you 1958? 13, him on October know Did
Q. I did. A. reputation you was Oc- his know what
Do Q. being peaceable, law-abiding citizen? a 1958 13, tober yes, sir. I think so,
A. reputation, good or bad? that was What Q. — spot. puts There had me on the A. Well to. I had been called been disturbance reputation, talking Mr. his are about Q. We Welborn. reputation good.
A. His you you testified called, times that were Q. Those yesterday? about those sir. Yes,
A. ‘Mutt’ at the instance of Jones? Q. Once right. A. That Mode? And the instance of Lee
Q.
A. sir. Yes, Mode? And once the instance of Gerald
Q. right.” A. That is
Appellant reputation general L. of D. insists that the law-abiding being peaceable citizen had Bussell for defеnse, been attacked evidence offered never for the it was error and for reason fatal allow on rebuttal to show Bussell’s the State law-abiding being have citizen. We phases of this a number of cases which deal with various matter, in each there was state of facts different but presented in bar. Some such from those the case at v. State, 29 Bloomer 248; are: Palmore v. Ark. cases Bryant State, 95 v. State, 438; 75 Ark. S. W. Ark. 239, 295; 129 S. W. Shuffield Kelley 650; 179 S. W. 146 Ark. 137; W. Carr v. 227 S. 776;W.
Fisher v. 149 State, 181; S. W. Jett v. Bogue State, 621; State, 151 Ark. 236 W. S. v. Bridges 152 Ark. W. 64; S. 169 Ark. Day S. 671: 335, 275 W. 2d 380;
S. W.
and Burton v.
as to acts of or violence turbulence. These general are the but in the at bar rules, case the defendant, — under his claim of self-defense, showed as was his —right specific a vast number acts of bad on conduct part deceased. This related to shooting, carrying gun, fighting, threats, a etc., concern- ing pеrsonally all of which Mode was aware sowas following specific advised others. We list the in- stances, wherein the defense elicited about the conduct deceased;
(a) year Witness Dave Ward a testified that before shooting, (Russell) fatal Russell told Ward that he gun carrying going was for Mode and that he was conveyed kill that Mode; Ward that threat Mode; got put up gun July, that Ward Russell to his gun; Russell said he could kill Mode without a that hard feelings existed between Mode; Russell and that Ward gun compartment glove saw of Russell’s car “jumped two or three Russell times; on” John got argument McCracken and into a heated with Ward Shop Superintendent, Ryаn, and Elbert in Ward’s office July. to his (b) Roy that Russell came testified Barton day looking was that Russell garage Mode; one kill him. he would that if he.found Mode said “mad” and George (c) .that Russell testified Robinson W. didn’t); (which gun he him if he had asked getting was tired of.Mode he cursed said Russell two coming time or the next house; out to his “picked up gun” and said to town he Russell 'went up get Mr. going kill shells and there and some he was necessary; (Mode) that Robin- D. if both, Mode and J. “to Mode about the threats and told son told Mr. Mode — him.” him to watch out for watch Virgil (d) McCoy that Russell said he testified —(cid:127) going farm that he didn’t want Mode out *8 McCoy there; and him if he came back out to shoot gave the information to Mode.
(e) came that Russell Hartsell testified Charles him to come and told Mode, Mode’s cursed house, kill him if he did that he would out, and then stated come out.
(f) that Russell tried Bruce Henderson testified gun a had to borrow a Russell him; that, later, from jammed gun show him that was asked Henderson to and gun from took the how it would that he said he shoot; kill Mode. Mode and wanted it with which to Looper (g) said he and Leo testified that Russell having said trouble, Mode and Russell cursed and .were if he could kill him. find Mode he would (h) that Russell at- Elmer Swaffer testified Joe — lunge grabbed and tacked Mr. Mode made Mode (at encounter). him around the neck the fatal (i) testified that Russell came to Gerald Mode him; kill Mode’s house cursed him and threatened to and get that that Russell told Gerald downtown he would his Russell Mode, later, Lee sooner father, night two or three came to Mode’s house one and shot times over the house. hold that
We when the defense offered all of the foregoing thereby opened the defense the evidence, door general reputation for the to show on rebuttal law-abiding of the deceased Russell sis a certainly citizen. Such evidence tended rebut the de fendant’s evidence as to acts of bad turbulence conduct, part though and violence on the of the deceased. Even general reputation specific cannot be shown acts of yet misconduct, under of when, self-defense, the claim — — there is offered an as here such abundance of specific present acts of bad as to conduct picture being deceased a violent and turbulent man, then the has, defense effect, attacked reputation opened of the deceased door for and has reputation general the State to show rebuttal on paeceable law-abiding deceased as citizen. In appellant Carr 227 S. W. reputation peace attackеd the of the deceased quietude; the State introduced witness to show deceased, good. Appellant of the at tempted on cross-examination the witness to elicit knowledge part his of acts of violence indicating otherwise. The defense offered to specific show of nine acts of violence, but rejected. holding this evidence was In the Court refusing proffered testimony, was in error we *9 said: question think
“We of the form the immaterial in specific very the instant case, because the nature of the by acts of violence offered to be established the witness public were of such notorious and nature within them- genеral reputation. selves as would tend to establish Especially great is that true in view of the number of proved, covering violent acts offered to be short a so period time.” subsequent
It is true that in two there cases were attempts by distinguish this to limit lan- the guage are v. State, in the Carr These cases Fisher case. Bridges v. State, 231 S. W. and 169 Ark. In each W. 671. of these cases the factual 275 S. defenses different from and the were those Bridges
situations at bar. In the case also case Carr plea supra, no and no there was self-defense testimony by against the of threats offered the deceased specific appellant, and оf violence no evidence of acts point. Bridges the not in In deceased. So the case is supra, v. State, Fisher about the defense offered evidence pistol, seeking deceased to borrow and the State contended that re such allowed the good buttal, to show But of the deceased. this Court said: proved
“We do not think what the defendant con- cerning equivalent proving gev- the deceased was his quarrelsome eral fighting character as a violent, proof man. It is clear that the made in the Carr case by the defendant as to the character of the deceased from, entirely proоf of an different nature made at case bar . . . The character of the deceased peaceful being quiet presumed to be until contrary appears, and, the of the defendant being general reputation not sufficient show that the respect quarrel- in that was that of a fighting some and man, the State was not entitled to original upon subject.” introduce evidence Bryant case The Ark. 239, 129 S. W. slight 295, shows how need be the evidence offered the defense in order for the State on rebuttal to show general reputation In that case, deceased. speaking Mr. Justice Battle, for the Court, said: cross “On examination of Mrs. Minta Potter, widow of the man killed, witness testified that the quick get fight, deceased ‘was mad and and he was fight drop man, brave would aof hat.’ by many proved witnesses in rebuttal that the The general reputation being quiet of the deceased for good. appellant citizen was contends *10 admitting only the court erred it. It was admissible purpose sustaining reputation for the of the de- ceased after it had been In this case the evi- attacked. by dence adduced the defendant on cross-examination prove aggressive, quick that tended to deceased was unnecessarily. to it with take and resent offense, force The evidence adduced was admissible to State impression. ed.), (3 remove such on Homicide Wharton — cases cited.” 269, and holding, opened that Our Defense the door questioned testimony allow the in accord rebuttal, is jurisdictions holdings with in other and also accord the text writers.3 with Rutledge,
The case of 243 Iowa goes thoroughly 2d into N. W. the matter. Testi- mony quiet was admitted in rebuttal that peaceable citizen, and and the defense asserted that no repu- attack had been made on deceased’s character or tation and that the admission of the evidence constituted complained error. The was to the effect telephone that deceased had made various calls to the accused which he and abused, cursed, threatened hospital up; him come and beat that he bran- talking dished knife while to defendant’s detective and him told to warn defendant he was not doctor but operate; frequently that he could deceased was holding testimony concerning intoxicated. In quiet deceased’s character as citi- zen was admissible in the Iowa rebuttal, Sureme said: pp.
“40 Homicide, § 272e, C. J. S. states 1225, 1226, although such evidence cannot be introduced prosecution in the first in a instance, accused, where the up, homicidе case in which self has been set has defense tending introduced evidence to show turbulent, vio- quarrelsome lent character of the deceased, prosecution may in rebuttal introduce contrary. character evidence to the 26 Am. Jur. general section states: ‘No rule can be Homicide, Evidence, enlightening There is an discussion McCormick on pages 339 340. *11 58 down for
laid the determination what will held to by upon constitute an attack the defendant the character reputation open or so as to deceased, the door for according evidence; rebuttal must be decided each-.case to thе thereof.’ . circumstances . . Most authorities hold the attack on the character of the deceased need reputation not be direct as to his character or to render good admissible in rebuttal evidence of his character as being quiet and citizen. the at- Whether by general reputation tack is made evidence of or other- may wise the state meet it evidence of such character. We hold evidence introduced the de- upon fense in this case constituted an attack Hattman’s character within the rule above mentioned.” Sweazy
Another case is 210 Ind. 5 N. E. presented question 2d 511. The was whether general reputation peace as to the of the deceased for quietude Supreme and could be introduced. The Indiana Court said: competent
“We think the evidence and material. Appellant testified in his own behalf and claimed upon the deceased made an attack him. That he was standing doorway gun standing with his beside presence him, and as soon as the deceased observed his he made the remark, ‘There is the so of b’ raised gun appellant. upon his and shot This is direct attack put the character of the deceased his for peace appellant’s in issue. quietude While dеfense yet charged was not self defense, he the deceased as being aggressor making upon the assault him.” quoted The Indiana from Court further Fields v. State (1892), Ind. N. E. as follows:
“ ‘The defendant testified that the deceased as- apprehended great injury him, saulted and that he to life per- or limb from the assault. On rebuttal the court prove peace- mitted the state to that the deceased was a ” quiet man. This was not able, erroneous.’ question Supreme before the New Mexico N. Brock, 56 M. P. 2d 131, specific wherein the acts testified to were as follows: Deceased came defendant’s house and asked to borrow help money pay and was There- rifle, refused. upon, deceased made the statement that if the defendant get didn’t out of there him he would throw out blow *12 repeated him out. same threat on two subse- quent attempting occasions. Later, when the two were things pulled gtm to talk deceased over, on defendant holding and defendant shot first and killed In deceased. testimony concerning that deceased’s for being quiet and man was admissible on re- the New buttal, alia, Mexico Court inter v. cited, Rutledge 28 Todd, N. M. 214 518, P. v. 243 899; State DeWoody 47 N. 21 Iowa, 179, Ariz. W. 2d and v. 251; quoted DeWoody 193 613, 299; P. from the opinion, as follows:
“ ‘It is to be that observed, when the de however, proseсution puts fense in a for the character homicide quarrelsome, deceased as or violent turbulent dangerous support may by man in it issue, state proofs peaceable, quiet, was a law-abiding (3d Ed.) par. man. Wharton on Homicide 269. Furthermore, attack on the character of the general reputation deceased need not be direct as to his good to render admissible evidence of his character on part It the state. is immaterial what manner general repu by the attack is made, whether evidence of by species any tation or other the issue evidence. If by may by is raised the defense it аll, state meet general reputation evidence of as to character. par. People Wharton on Homicide, 270; 3d Ed., Gallagher, affirming N. Y. 66 N. E. 75 App. general Div. 39, 78 N. Y. 5. No rule can laid be down for the determination of what will be to con held stitute an attack the defendant on the character of the “open deceased so as to the door” for rebuttal behalf of the but case must be decided ac state, each cording to its own 13 R. C. L., circumstances facts. par. p. People, supra. Kelly (229 917; Ill. 81. 1169.)”’ 82 N. E. L. R. A. N. S., 198.
CONCLUSION carefully assignments We have all considered find no error. Affirmed. J., dissents.
Johnson, dissenting. Associate Justice, This case Johnsоn, Jim is before us the second time. I was convinced judgment appeal, in the former Mode v. S. W. 2d 88, should have been affirmed and so In
voted. that case I no found reversible error nor Idid any find erroneous extension this Court of the basic procedure. rules of criminal rights I view these rules as sacred belong every person which accused whether guilty any or innocent and consider court’s extension beyond province. of those rules its *13 majority’s appellate procedure The discussion of in felony gives majority cases me much concern. The has applied practice several rules of in a manner which purpose seems inconsistent with the of those rules. statutory equivalent appeals felony I find no in capital appeals. the mandate of Ark. Stats. in § 43-2723 purpose legislature enacting No doubt the in § 43-2723 was to certain make that no of a conviction capital will offense be allowed to stand unless the de- fendant received trial which was consistent with the process procedural fundamental standards of due fairness. The requires statute court to review prejudicial affirming entire record for error before appear conviction. If such error does the conviction must argued by be reversed, whether the error was counsel or not. requirement appeals felony in to review all
errors in contained the motion for new trial, whether or appellant’s argued not in the brief is an extension in imposed duty by § case law of the 43-2723. The same underlying presented considerations the statute are appeals. felony duty my that the it is view instances
In both when at an end for error is record to examine court may court wish course, found. Of error is reversible finding assignments after other to examine to continue 341 W. Rand v. reversible error. assignments are dis- and those If is done 2d 9. this agree findings I that on made, actual are cussed and points binding a sub- determination. On therе is these pre- normally appeal sequent would defendant assignments arguing of error those cluded from same passed actually for this The reason been on. which had supported by simply assignments, the same is proof, that those exceptions, objections would be with the same appeal as on the on the second as much without merit first. appeal appellant argued only previous nine
theOn opinion thoroughly points in its in his brief. This Court points generally only two dis- discussed of these following points remaining lan- seven cussed the points, guage: “Appellant argues all of several other no other which we have but we find error examined, giving Yet the record than the of Instruction No. 9.” assign- appeal that no less than 64 the first reveals motion for new ments of error were contained argued my assignments not trial. It that those view passed points upon actually this Court the nine which do not “law of the case.” become the *14 majority heading “Evidence Good under the of major portion itsof Character Deceased” devotes the of opinion assignment was contained an of error which to appeal. appellant’s trial in the first motion for new re-reading that case I briefs in After careful of the argument of relative have been unable to find one word upon points assignment in the nine to this contained Except actually passed. dis- for the which this Court objection covery of the of an of the absence appeal, good ac- on the first character of the deceased opinion, cording majority this consideration of to the assignment under their have been foreclosed also would of “the law of the case.” rule my assignment properly
Under view this is before regardless objection this Court of the absence an .of previous pass actually trial, since this Court did not upon appeal. point this matter on the first With the properly majority before us I am convinced that opinion effectively entry plea has held that the aof of self-defense in a homicide case is sufficient to allow the prosecution repu- to introduce evidence of the deceased’s peace -quiet tation for in rebuttal.
It has never been the rule in homicide
in this
cases
prosecution
allow the
to introduce evidence of
deceased’s, reputation
peace
quiet
when the
issue of
self-defense
raised. As was said in Bloomer
v. State,
That rule was reaffirmed in
State,
Carr v.
63 language upon facts of that torney the case, which the At- only general General relies meant the reputation peace quiet of the deceased for and was ad- testimony missible in evidence the to rebut given by in which an attach had been defendant upon reputation, made such and thеrefore Carr harmony case is not out of with our former decisions.” [Emphasis supplied.]. agree majority
I do not with the in their conclusion plea Bridges that a of self-defense was not entered supra. may, my Be that it case, view neither Bridges nor Carr case case, as to the facts contained deciding present appeal therein, aid the it since was in both assumed instances that the defend- testimony attack, ant’s was not an on the reputation peace quiet. deceased’s for Certainly right upon entry aof defendant of a plea of self-defense show that deceased was dangerous questioned. violent and man can not be State, Palmo re v. Ark. 248; v. Edwards every S. W. 2d 556. In case where the support plea defendant has introduced evidence in of his the issue remains to be decided whether that evidence reputation constituted an attack on the deceased’s for peace quiet prosecution that would allow the to offer good reputation evidence of the deceased’s in rebuttal. supra; Bridges supra. Carr v. State, In the case bar the defendant’s evidence was not general sufficient to constitute a attack on the deceased’s peace quiet prosecution to allow thе Although offer evidence in rebuttal. the incidents that period were related in the did occur over time, each instance the tended show only feeling animosity the ill of the deceased toward the defendant. Bryant
Under this view distinguishable present W. 295, from the case. portion opinion quoted by majority As that indicates the widow of the deceased testified on cross- *16 ‘‘ quick get that the to mad
examination deceased was fight fight, at the man, he was brave and would testimony clearly drop was a a hat.” direct This of the deceased, attack on the testimony whereas feeling ill of the this is evidence case the deceased toward the defendant and aggressor. foreign opinion majority from cases cited in the contrary jurisdictions announcing to our own, a doctrine might persuasive first this a matter of to me if were be impression such is above, this as indicated but, state, long recognized the writers have not the case. The text placed minority and have never rule, existence Wigmore, group. 63§ Evidence, in that Arkansas (1949); (3rd 1949); Anno., L. 3 Ark. Rev. Ed., Note, opinion my (1954). it is Therefore, 34 A. L. R. 2d ruling may elsewhere, I consider whatever party to be a our own cases and here refuse sound, procedure. rules criminal the extension of our basic respectfully For the I dissent. above, reasons stated Mantooth. Nuckolls 2d 512 350 S. W. 5-2392& 5-2393 Opinion 30, 1961. October delivered