*1 they ON FOR REHEARING OR Hall negligent MOTION was but whether would TO TRANSFER COURT understand dif- TO the issues when two such
EN grounds negligence disjunc- BANC ferent
tively being spe- submitted each without cifically as M.A.I. re- conversed 29.04 CURIAM. PER quires. The trial court this fail- considered support in main contention Defendant’s comply ure to with M.A.I. to be directions or to transfer rehearing motion for of its prejudicial agree error we that this jury is that en Banc to the Court reasonable conclusion. not liable was not believed rehearing motion or to transfer De- negligent. employee was if Hall its to the Court en Banc is overruled. in counsel points plaintiff’s fendant out jury “understood agreed his brief its included ‘defendant’ word is in- “it Henry Hall” and said
servant jury believed
conceivable if liable not
somehow railroad However,
Henry negligent.” Hall was this the decisive issue is not Respondent, Missouri, STATE failure “the contention, that Plaintiff’s Henry 4” to mention Hall in Instruction rele- prejudicial, would be could not be MORGAN, Appellant. Howard had submitted if this case been vant No. 54097. de- single negligence claim of Missouri, Supreme Hall, dropping the employee fendant’s No. 1. Division Then handle. hammer brake beam on have been whether July 14, 1969. only question would understand defend- Opinion Own Motion Modified on Court’s em- they its if believed ant liable Sept. 1969. plaintiff’s ployee negligent Hall Rehearing Motion to Transfer to Court However, they agreed would. counsel Sept. En Banc Denied claim plaintiff also submitted provide (failure negligence fendant’s nothing to that had work)
safe methods submitting thus Hall’s conduct
do with
separate acts multiple negligent
disjunctive. 4: says “it of its Instruction
Defendant (M.A.I. out book right of the M.A.I. says However, it does the book
29.02(2)).” states fit this case because book
not con-
such instruction “is suitable submitted multiple negligent acts
versing book directs disjunctive”; and the form suitable 29.04(5)
attention con- trouble with use. The that the case is
tention whether defendant confused
would be about employee its believed
would be liable *2 Gen., Danforth, Atty. C. Jefferson John Erdmannsdorff, Special
City, Max Von Gen., City, Atty. North Kansas Asst. respondent. Louis, Chopin,
George D. fendant-appellant.
HOUSER, Commissioner. appeal
This is an from a of burglary degree conviction of second 560.110, 1959, stealing, RSMo felonious § V.A.M.S., in which concurrent sentences years years burglary five two imposed. stealing Appellant’s only failing erred to sustain his motion for repeated mistrial because references prosecuting attorney closing appellant’s failure to adduce testimony in his own behalf. Section 546.- 26.08, Rule RSMo Criminal provide that if the accused shall V.A.M.R. right himself not avail of his by any not be attor- same shall referred to ney in the case nor be considered court or prosecuting attorney’s open- In the ing argument he outlined the occurred; showing burglary that a encountered witness burglar standing hall of her quarters; living he took her threatened her He recounted left. identification of defendant testimony. Then he corroborating officer’s at the end “Now, said: opportunity to has an any evidence that any witnesses or in its may up able with was the defense was to come discrepancy pre- in the you, positive claim there’s a before identification hearing, proceeding liminary which is Mrs. Green who has seen to see goes just positively after arrest before and identified him here enough your presence, to hold man. testimony there’s *3 said They say hearing at that Mrs. Green of Officer who saw the defend- Jablonski Well, Kensington. driving away 2715 ob- ant from in she at front of Mrs. lived and, further, There’s viously a mistake there. Green’s home the fact there’s from * * City Kensington the that from the defense—* no evi- no 2715 any took reporter forthcoming who dence Either the was to contradict Louis. you by was brought a mistake or Mrs. Green the evidence the made to down I think it but don’t State.” when she said mistaken fact she the any contention over there’s real (3) argument In the the made course of that address It’s from at Warne. lives 2715 defendant’s counsel he stated de- saw the that Officer Jablonski prove did fendant not have to his Now, the defense the radio. leaving with ; prove required the is to nocence that State you which produced no other evidence guilt. the closing his In his summation of the on his side judge can the facts prosecutor, commenting coun- on defense case.” propo- argument, accepted sel’s defendant’s counsel made appellant’s At that sition, stating that the State had shown be- mistrial. and a motion for objection an yond a reasonable doubt that defendant objection, in the the The sustained court apartment “the this burglarized man who a mis- denied jury, the but presence of radio, the after the does and took but State entered and counsel trial. Court anyone charged finish with its case who the hearing of the colloquy outside into a opportunity bring a has to crime the judge the reversed during which jury the evidence in case forth witnesses and discussion concluding after position, Now, you any if are his behalf. argu- this line of cases under the decided charged as as this and with a crime serious the recon- When court permissible. ment is prove you guilty surely you were not of the informed was not jury the vened you bring would evidence to show forth ruling. its court’s reversal argument that.” To counsel this “Now, continued: prosecutor (2)The request objection fendant an made opportun- every has the defense disregard to it. that the be instructed like any witnesses ity present to objection the sustained and so court present like to they would any evidence or instructed not the defendant prove that you to to (4) argument prosecu- After further not he’s charge, that guilty of “Therefore, following: tor closed with perhaps or crime occurred when evidence, posi- on the based on this based stealing accused of property he’s by the woman, tive identification based has the defense his, in this but testimony of Officer absolutely evidence no put to Jablonski seen fit away defendant had drove in this the defendant all show at to lady’s approximately house about something you That’s guilty. not case is morning time in the same furthermore delibera- your seriously consider should produced fact that by the no tions. any to show that of the State’s run May my objection “MR. CHOPIN: incorrect, respectfully I ask argument, line of whole to this duty you bring your jurors to back as as please? guilty case.” verdict of may. It “THE COURT: objection request No further attorney] : The “[The consists, made.
evidence then Appellant argues that the went witnesses is “uncontradicted” is an im far; proper effect was too its cumulative comment on defendant’s failure defendant; Willis, prejudicial testify, Mo.Sup., that it citing State v. authorities, prosecuting attorney’s “make intention to l. c. capital” Hampton, out of defendant’s failure testi- This was followed fy, prohibited language” Mo.Sup., “skirt around to the same Appellant far as he effect. “go as could.” colloquythe points during out : As to The court sustained prosecutor twice admonished and instructed the to dis respect” any “in on defendant’s comment regard argument. other No or further “at that the requested. relief was indirectly” least referred *4 testify by commenting defend- failure to (4) objection, As : There was to no prove ant’s specific defenses but assuming general that defendant’s ob normally which lie knowl- within the sole jection it, would cover we have said what edge of a defendant. fully (1), supra, general as to answers a objection to this comment. : As The is disallowed. to prosecutor’s The reference to Appellant the argu makes further opportunity present any to witnesses ment that prosecuting attorney’s the com have; may with evidence he his comments were improper ments because the state’s only the de reference to “the evidence case that defendant stole this could radio with,” to up and fense was able come only by have been denied or contradicted produce the failure of the defense to other defendant; charge that it is fail error “to judge evidence from the could which prove ure specific are defenses which defendant, all the favorable to the facts normally within the of de knowledge sole weight the and related to of the evidence fendant.” This is effort to come within permissible the as such were under rule, applied in State Snyder, v. 182 example, there no state the law. For 12, 462, Mo. 82 that where the defend S.W. error in mistrial for refusing to declare a person ant is the only who could or would free to offer arguing that “the defense was have contradicted the evidence offered any they had, that and none was by the that prosecution, statement that Mo.Sup., forthcoming,” Thomas, State v. uncontradicted is refer held to 533, Hodge, [12]; 393 State v. S.W.2d 538 defendant’s failure to and thus is 65, Mo.Sup., [5], or 399 68 improper. Failure See Anno. Accused’s “ ‘The evidence stands uncontradict- II, Testify Comment, 723, A.L.R.3d 14 — in has con ed this case. the State When 4, p. argu- difficulty with this One § case, cluded its was free ment is testi- witness’ ” it v. any chose.’ State offer mony during indicates time defend- 643, Siekermann, 651 Mo.Sup., 367 S.W.2d apartment ant was a car there her rulings similar cited And see five [17]. somebody in front of building “with As quoted pages and 652. and 651 persons else in hear she could whom it”— Michael, Mo.Sup., 361 v. stated State “laughing honking every now 664, prohibition 667, § him to would toot the horn for 546.270, 1959, and Rule Criminal RSMo come down” and that “there some the accused against 26.08 comment laughing talking more when [defend- did that the defendant did not Directly got down in the there- car.” ant] any not offer evidence. police pull after a officer defendant saw Mo.Sup., away in an automobile from front of Craig, (2) :
As to apartment. stopped car He and found [12], held 624 406 S.W.2d defendant, compan- male therein two testmony the state’s comment 494 it
ions, prose has radio identified Nor been demonstrated to our and the property from satisfaction that the cumulative effect of cuting witness as stolen foregoing requires apartment. In other words there the intervention of expressed defend under the apparently witnesses available to caveat Varner, Mo.Sup., conceivably ant who could contradict State v. 329 S.W.2d respect to the ed the state’s witness [18]. person entered manner who The is affirmed. thereto, the apartment gained access identity came downstairs person of the who CC., HIGGINS, WELBORN and con- ownership apartment, from the cur. auto in the happened how to be mobile, In etc. such PER CURIAM: reasonably conclude foregoing opinion HOUSER, C., con who could have person adopted opinion as the of the court. con and the rule
tradicted the state’s
Hamp
inapplicable. State v.
for is
tended
STORCKMAN,
J.,
HENLEY,
S.W.2d,
And
ton,
l.c.
supra,
[3].
Judge,
Alternate
concur.
79, 131 S.W.
Reynolds, 345 Mo.
see State v.
living soul
constitute a reference to
did not enter
2d
is
court found
Sup.,
main opinion. my opinion, complains Appellant further of us approve argument the sort here of used by prosecutor prosecu- “in this invite prosecutor’s statement tors to continue they go to see how far can on abso put fit to has seen the defendant in indirectly calling attention of show at all to lutely no evidence jury the failure of the testify, defendant to anas guilty” is not in this case defendant despite forthright language of Sec. proof of the burden statement incorrect 546.270, RSMo 1959 and our Rule 26.08 presumption and a contravention that no reference shall be made the fact. made objection was No such innocence. recently We held the trial judge could not pre point was trial, no such at the in a civil case doing countenance the trial, hence new motion for served directly which he could knew was waived. directly, be done (Mo.Sup.) v. Will Gilliam time The same the first should be true Finally, appellant in a criminal portion case, where lib- complains of appeal erty is at stake. one in defendant’s No can be so naive the jurors putting argument afterthought, as not prosecutor to know that what the likewise This shoes. really driving at in this kind to raise failure waived testify, failure of the defendant to court. trial him, against which the should consider * * * you charged because “if [were] you a crime as serious as this and prove you surely you were not guilty bring forth evidence to show that.”1 strong against state had a here (as pointed trial court out in
trying prosecutor’s argu- to restrain the
ments) and there I impelling was no need prosecutor
can see to flirt with
the chance of argument. reversible An
examination of the cases where this con-
tention improper argu- has been made of
ment which in effect comments the de- that al-
fendant’s shows exception
most without have been
cases where the strong state had a
Sooner or later a push will
luck far really too there when is no rea-
son to do so.
Renee Lucille WILLIAMSON James L. Friedman, Gray Gray, & Charles E. Williamson, Appellants, Ritter, Robert F. Louis, plaintiffs St. (appellants). WINFREY, A. Arnold Jack Star d/b/a Moser, Mueller, Joseph H. Jaeckel, C. Route, Respondent. Mail J. Marsalek, Carpenter, Cleary Jaeckel, & No. 54060. Louis, defendant-respondent.
Supreme Missouri, Court of Division 2.No. HYDE, Special LAURANCE M. Com- missioner.
July 14, 1969. $17,500.00 personal Action for Rehearing Motion for or to Transfer to Court juries Williamson, to Renee Lucille here- Sept. 8, En Banc Denied 1969. plaintiff, I; inafter called Count and for Opinion Per Curiam Modified on Courts’ $7,500.00 for medical ex- husband Sept. 16, Own Motion penses loss, and consortium II. Count plaintiff Verdict for defendant appealed from the entered. Volkswagen Plaintiff’s was struck making fendant’s truck while she was a left driveway. turn Highway 50 into a argument, 1. The court sustained an to this but it shows what the trying convey