215 Mo. 58 | Mo. | 1908
This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Monroe county, Missouri, convicting him of murder in the second degree. On the 14th day of December, 1906, the grand jury of Monroe county returned an indictment against, the defendant charging him with murder in the first degree, which indictment, omitting formal parts, was in the following form:
‘ ‘ The grand jurors for the State of Missouri, summoned from the body of Monroe county, being duly impaneled, charged and sworn to inquire within and for the body of said Monroe county, and true presentment make upon their oaths present and charge that John Sebastian, at and in the county of Monroe and State of Missouri, on the twenty-fourth day of October, in the year of our Lord one thousand nine hundred and six, in and upon one Benjamin Sager, in the peace of the State, then and there being feloniously, wilfully, deliberately, premeditatedly and on purpose and of his malice aforethought, did make -an assault, and that the said John Sebastian, a certain revolving pistol, then and there charged with gunpowder and leaden balls, which said revolving pistol he, the said John Sebastian, in his right hand then and there had and held, against, at and upon him the said Benjamin Sager, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did discharge and shoot off, to, against, at and upon him the said Benjamin Sager; and that the said John Sebastian, with the leaden balls*66 aforesaid, out of the revolving pistol aforesaid, then and there by the force of the gunpowder aforesaid by the said John Sebastian discharged and shot off as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did strike, penetrate and wound him, the said Benjamin Sager, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, giving to him, the said Benjamin Sager, in and upon the left side a little under the second rib, of him the said Benjamin Sager, one mortal wound, of the depth of six inches and of the breadth of one-half inch, of which said mortal wound he, the said Benjamin Sager, then and there instantly did die.
“And so the grand jurors aforesaid, upon their oath aforesaid, do say, that the said John Sebastian, him, the said Benjamin Sager, then and there, in the manner and form and by the means aforesaid, at the county aforesaid, on the day aforesaid, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”
To this indictment the defendant waived a formal arraignment; and entered his plea of not guilty, and on the 4th day of January, 1907, the trial of this cause was begun. The testimony introduced on the part of the State at the trial tended to prove that the defendant and deceased were both farmers, residing five or six miles northwest of Paris on adjoining farms in Monroe county. The deceased had a corn field rented from defendant on shares, and there seemed to have been some dispute between them about the division of the corn. Most of the com had been cut on October 24, 1906, when Frank and Claude Sager, both sons
Dr. C. H. Dickson testified that he lived at Holliday and had been a practicing physician and coroner of Monroe county for nine years, About twelve o ’clock on the day of the shooting he was called to the residence of the deceased, and, in company with R. C. Udell, an undertaker, held a post-mortem examination. The doctor testified that he found in the body of the deceased a wound which entered in the upper part of
The testimony introduced on the part of the defendant tended substantially to show the following state of facts:
The defendant testified that he was suffering with rheumatism and sore eyes at the time of the difficulty; that he was 61 years old, a farmer, and the father of twelve children. He testified that a few days before the final difficulty, he and his two girls visited the corn field in question, where the deceased was using a corn binder. The defendant remarked to the deceased that the rows did not come out even, as they should have done if he had correctly counted them. The deceased got mad, said he did not want any of the defendant’s corn, and commenced swearing. The defendant replied that he didn’t say that the deceased wanted any of his corn, but had simply remarked that the rows did not come out even. The defendant then- sent his
In some particulars the defendant was corroborated by his neighbor, Henry Secov, who testified that he was working in an adjoining corn field and saw the deceased riding rapidly toward the corn field, riding his spotted pony and carrying what he supposed was a corn-lmife. He heard the deceased say, “Come up here, I will settle that when I get there.” He also testified that he heard the three shots fired, and that in a little while he climbed on the fence and saw the Sager boys get into the wagon and start away. He also saw the defendant and one of his girls go through the gate going towards defendant’s barn.
The defendant introduced several witnesses who testified that two corn-knives were found on the ground near the pile of corn, the larger of said knives being found near where there was some blood on the ground and on the com stalks. Other witnesses for the defense testified to the bloody condition of the defendant immediately after the shooting, and to the fact that he had one wound on his head and one wound on his ear, both of which were made with some sharp instruments. Hearing of the difficulty, Sheriff Nolen started out from Paris and met the defendant on the road going toward the county seat. He turned and went back with the defendant, and, with some others, visited the scene of the difficulty. He testified to the condition of the ground, the com-knives and the pile of corn. Nolen also testified that, while he was with the defendant that day, defendant took his revolver-out of his pocket and said, “I just stood my ground and shot them (indicating by pointing with his revolver) just as they came to me, or came at me.”
Bradley Overfe'lt, in many respects, corroborated the defendant. He and the defendant both claimed' that the defendant’s hat was knocked off during the-fight between the defendant and the three Sagers..
The defendant introduced several witnesses, who' testified to the fact that the deceased’s general reputation for peace and order was bad. There was also some evidence tending to contradict Frank Sager in reference to statements made by him on the witness stand. ■
In rebuttal the State offered testimony which tended to prove that the general reputation of Henry Secoy, one of the defendant’s witnesses, for truth and veracity was bad; and that Seeoy and Overfelt made numerous contradictory statements in relation to the homicide. Secoy stated, so several witnesses testified, that he knew nothing about the difficulty and was glad that he did not. The State also proved that the general reputation of the deceased for peace and order was good. The State introduced Dr. F. M. Moss, who testified that on the afternoon of the killing, the defendant was brought to his office by the sheriff, and that he examined and dressed some wounds of the defendant. One wound was a cut on the forehead, and the other one was a small cut in the ear. The latter cut passed through the ear and broke the skin behind the ear. This witness testified that both wounds must have been inflicted by someone in front of defendant, and could not have been inflicted by someone behind the defendant. The State also proved that Bradley Overfelt, one of defendant’s witnesses, made divers statements to the effect that the defendant’s hat was on during the entire difficulty and that his hat was cut full of holes.
' At the close of the evidence the court instructed the jury, covering the offenses of murder of the first and second degrees, as well as manslaughter in the
It is not essential to reproduce at this time all of the instructions given in the cause. Those of them, the correctness of which are challenged, will be given due consideration during the course of the opinion.
A timely motion for new trial, with affidavits in support of it, together with counter affidavits were .filed, which will be given consideration in the course of the discussion of the legal propositions involved. A motion in arrest of judgment was also filed. These motions were both overruled by the court. Sentence and judgment were rendered and entered in accordance with the verdict. From this judgment the defendant prosecutes this appeal, and the record is now before us for consideration.
OPINION.
The record discloses that the defendant duly preserved his exceptions to the giving of all the instructions by the court. However, learned counsel in their brief direct their complaints particularly to instructions numbered 6, 7, 8, 12 and 13. The instructions to which our attention is specially directed are as follows:
“6. The court instructs the jury that if they find from the evidence in the cause, beyond a reasonable doubt, that at Monroe county, in the State of Missouri, on the 24th day of October, 1906, the defendant did wilfully, premeditatedly, on purpose and of his malice aforethought, but without deliberation, shoot Benjamin Sager with a loaded pistol, thereby, then*75 and there inflicting upon said Sager a mortal wound from which mortal wound, if any, the said Sager thereafter, and on said 24th day of October, 1906, at and in the county and State aforesaid died, then you will find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment, in the penitentiary for a term not less than ten years.
“7. The court instructs the jury that if they find from the evidence that at the county of Monroe, in the State of Missouri, on the 24th day of October, 1906, the defendant shot Benjamin Sager with a loaded pistol, thereby, then and there inflicting upon said Sager a mortal wound, if such is the fact, from which said mortal wound, if any, the said Sager thereafter and on said 24th day of October, 1906, at the county and State aforesaid, died, and if the jury further find that the defendant fired said shot while he was in a violent passion, suddenly aroused by insulting or abusive language, if any, spoken by said Sager to defendant, then such killing was not done with deliberation; but although the defendant may have fired the shot, while in a violent passion suddenly aroused by insulting or abusive words, spoken to him by said Sager, yet, if such killing was done by defendant wilfully, premeditatedly and of his malice aforethought as explained in these instructions, the defendant is guilty of murder in the second degree.
“8. The court instructs the jury that if they find from the evidence in the cause that at Monroe .county, in the State of Missouri, on the 24th day of October, 1905', Benjamin Sager, if such is the fact, with a corn-knife, approached the defendant in a threatening manner, and within striking distance, either struck at or struck defendant with said corn-knife, but not under such circumstances as to justify the defendant in shooting in self-defense, as defined in other instructions, and that such assault or striking, if any, by said Sager*76 provoked on the part of defendant a sndden heat of passion, and that in such heat of passion, if any, the defendant shot said Sager, from which said shooting, if any, the said Sager thereafter, on said 24th day of October, 1906, at the county and State aforesaid, died, then you will find the defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for a term of two years, or at imprisonment in the county jail not less than six months nor more than twelve months, or by. a fine not less than $500, or at both a fine of not less than $100 and imprisonment in the county jail not less than three months nor more than twelve months.
.“12. The court instructs the jury that if they find from the evidence in the cause that defendant sought and brought on or provoked the combat with ■Benjamin Sager in order to have a pretext for killing his adversary, or doing him some great bodily harm, and for the purpose of wreaking his the defendant’s vengeance upon him, and that, actuated by such intent and motive, if such is the fact, the defendant fired the fatal shot for the purpose aforesaid, then the defendant cannot avail himself of the plea of self-defense, however sorely he may have been pressed by his adversary; on the other hand, although the defendant may brought on or provoked the combat, yet, if thereafter, and before the fatal shot was fired, the defendant with the honest purpose of abandoning further combat with said Sager, did abandon the same and withdraw as far as he could, or fled, and that said Sager still pursued defendant, then the defendant had a right, if in self-defense, as hereafter explained', to slay said Sager.
“13. The court instructs the; jury that if they find from the evidence in the cause that at the time the defendant shot Benjamin Sager, if he did shoot him, the defendant had reasonable cause to appre*77 herid a design on the part of deceased, or others acting in concert with him, if snch is the fact, to kill defendant or to do him some great bodily harm, and that there was reasonable cause to apprehend immediate danger of such design, if any, being carried out, and that he shot and killed deceased to prevent the accomplishment of such apprehended design, if any, then such killing was justifiable, unless the jury find from the evidence that defendant provoked the fatal combat for the purpose of killing Sager or doing him. some great bodily harm, and for the purpose and with the motive of wreaking his the defendant’s vengeance upon said Sager, and fired the fatal shot with such intent and purpose and not for. the honest purpose of-defending himself from attack. It is not necessary to this defense that the danger should have been real or actual, or the danger should have been intended and immediately about to fall. If you believe that defendant had reasonable cause to believe these facts and that he shot in self-defense, as herein explained, and to prevent such expected harm, then you should acquit. But before you acquit on the ground of self-defense you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the case, you cannot acquit defendant on the ground of self-defense, even though you may believe defendant really thought his cause of apprehension reasonable.”
It will be observed that instructions numbered six and seven were applicable to the offense of murder of the second degree, and it is earnestly insisted by counsel for appellant that the giving of those instructions constitutes error. This insistence is predicated upon the theory, as claimed by the appellant, that there was
In view of the well-settled law applicable to this subject, we shall not undertake to discuss the question as to whether or not there was any evidence upon which to predicate an instruction on murder of the second degree. In the treatment of this question it may be conceded, for argument’s sake, that there was not sufficient evidence upon which to base the instruction complained of, still, this cannot be of any avail to the defendant, for he is in no position to insist that the court committed error in giving instructions numbered six and seven.
A similar complaint to the one by counsel for appellant was made in State v. West, 202 Mo. l. c. 138. In treating of this proposition by this court, speaking through Judge G-antt, it was said: “It is now objected that the court erred in giving this instruction on murder in the second degree for two reasons, the first being that if the defendant was guilty at all he-was guilty of murder in the first degree and it was therefore reversible error to instruct on murder in tlie second degree. In support of this contention, we-are cited by learned counsel for the defendant to State v. Mahly, 68 Mo. 315, in which it was held reversible-error to instruct on murder in the second degree when the evidence tended to show that defendant was guilty of murder in the first degree.” It is then pointed out that the Mahly case and others were' decided before the revision of 1879, in which it was provided for the first time: ‘ ‘ Upon indictment for any offense consisting of different degrees as prescribed by this law,.
In State v. Todd, 194 Mo. l. c. 394 and 395, Judge Burgess, speaking for this court, expressly held that even if the testimony did not warrant an instruction for murder in the second degree, “the defendant is in no position to complain, for if the court erred in instructing for a lesser degree of murder than that with which the defendant is charged, it was error in the defendant’s favor, of which he has no cause to complain.” To the same effect are State v. McMullin, 170 Mo, l. c. 630; State v. Frazier, 137 Mo. l. c. 340; State v. Scott, 172 Mo. 536; Johnson v. State, 44 Tex. Cr. 332, and State v. Billings, 140 Mo. 193.
In the recent case of State v. Bobbitt, announced at the last sitting of this court, and officially reported ante, p. 10, this subject was again reviewed, and the cases as herein indicated were referred to and expressly approved. Applying these rules of law applicable to this proposition, which have been so- clearly and correctly stated in the cases heretofore cited, we see no escape from the conclusion that the giving of the instructions numbered six and seven did not constitute such' error as would furnish a basis for the reversal of this judgment.
Instruction numbered 8, the correctness of which is challenged by appellant, was one covering the offense of manslaughter in the fourth degree. The general rule is that in order to reduce an intentional killing
Learned counsel for appellant predicate their complaints of this instruction upon the grounds, first, that there is no evidence upon which to base it; second, that it is not in proper form; and, third, that the court did not require the jury to find that the defendant intentionally shot and killed the deceased.
We have in the consideration of this proposition read in detail all of the evidence disclosed by the record, and have carefully analyzed the language employed in the instruction, and have reached the conclusion that such instruction is not open at least to the principal objection urged against it by the appellant. The testimony of the defendant who testified in his own behalf in this cause, clearly furnishes a basis for the giving of this instruction, and in fact the refusal of an instruction upon manslaughter in the fourth degree, under his testimony, would have constituted error. The defendant, in giving an account of this difficulty, referring to the deceased, said: “He picked up a corn-knife and struck at me, I was about ten feet from him and he took after me, and I ran I reckon ten
We have in that testimony an assault and personal violence before the fatal shot was fired, according to the testimony of the defendant. An instruction for manslaughter in the fourth degree, based- upon that testimony, is directly in harmony with the rules of law as announced in the cases heretofore cited, applicable to the subject of manslaughter in the fourth degree. We have in this case a killing done by the use of a deadly weapon, that is to say, a pistol, and, -according to the testimony of the defendant, such killing was not done until after the defendant had received at the hands of the deceased personal violence in the nature of a blow with a corn-knife; therefore, we are of the opinion that it was quite appropriate for the court to submit to the jury, upon the testimony of the defendant, the question as to whether or not the hitting of him prior to the shooting constituted a reasonable provocation, and the sufficiency of such provocation to arouse in the defendant such a heat of passion as would render the killing under its immediate influence simply manslaughter in the fourth degree.
While -this instruction does not fully conform to the precedents indicated in the eases cited, yet in our opinion this failure does not constitute such error as would warrant this court in reversing the judgment. Whatever errors appear in the language employed, did not in any way prejudice the rights of the defendant. It substantially tells the jury that if the deceased, Benjamin Sager, approached the defendant in a threatening manner, and within striking distance, ■either struck at or struck defendant with a corn-knife, but under such circumstances as not to justify the defendant in shooting in self-defense, as defined in
It will be observed that that instruction, in directing the jury as to the violence necessary to reduce the grade of the crime to manslaughter in the fourth degree, tells them that if he struck him, or struck at him, this, with other elements of the offense, designated in the instruction, would authorize the finding of the defendant guilty of manslaughter in the fourth degree. Upon the testimony of the defendant the court would have been warranted in limiting the finding of the jury to the striking of the defendant, and could have very well omitted part of the instruction in reference to the striking at him. The defendant in his testimony said not only that he struck at him, but that he hit him, and that he did not shoot until after he was struck by the deceased.
It will be conceded that this instruction did not in express terms require the jury to find that the killing was intentional, but it will be observed that it did expressly require the jury to find that' the defendant, while in a heat of passion, shot the deceased, Benjamin Sager, and from such shooting that Sager on the 24th day of October, 1906, died. Technically, under the rules announced in the cases heretofore cited, as applicable to the facts of this case, it would have been better form to have followed the precedents and required the finding of an intentional killing. However, we are unwilling to say that this in anyway prejudiced the rights of the defendant, or in the least endangered a fair and impartial trial. The jury were required to find that the defendant shot the deceased,
In State v. Elsey, 201 Mo. 561, it will be observed that this court was content in its criticism of an instruction which did not require the jury to find the defendant intentionally shot and killed the deceased, with simply saying that the instruction was faulty by reason of that fact. Neither that ease nor the cases of State v. Umfried, 76 Mo. 404; State v. McKenzie, 177 Mo. 699; State v. Todd, 194 Mo. 377, go to the extent of holding that the defect pointed out in the
Appellant also insists that instructions numbered 12 and 13 did not properly declare the law. Directing our attention to instruction numbered 12, it is sufficient to say that we have examined it and have given it careful consideration, and in our opinion the challenge to the correctness of that instruction is without merit. It simply tells the jury that if the defendant sought and brought on or provoked the difficulty with Sager in order to have a pretext for killing* him, or doing him some great bodily harm, and for the purpose of wreaking his vengeance upon him, and actuated by such intent and motive, if such was the fact, the defendant fired the fatal shot, then he cannot avail himself of the plea of self-defense, however sorely he may have been pressed by his adversary. Then the court by appropriate directions to the jury added a qualification to such instruction, and told the jury that on: the other hand, even if they should find that the defendant brought on or provoked the combat, yet, if thereafter and before the fatal shot was fired, the defendant, with the honest purpose of abandoning further combat with Sager, did abandon the same and withdraw as far as he could, or fled, and that said Sager still pursued defendant, then the defendant had a right, if in self-defense, as hereinafter explained, to slay said Sager.
This instruction is in perfect accord with not only the case of State v. Partlow, 901 Mo. 608, but as well with the recent case of State v. Gordon, 191 Mo. 114. In the Gordon case the authorities were exhaustively reviewed, and Judge Gantt, after a thorough discussion of the cases cited, said: £ £ Thus it will be observed that in Partlow’s case this court held that the right of perfect or imperfect self-defense depended upon the intent with which the assailant brought on the
It is, however, suggested by counsel for appellant that there was no testimony upon which to predicate this instruction. In this learned counsel for appellant have certainly overlooked the disclosures of the record. The testimony as introduced on the part of the State shows that when the two sons of the deceased went out in the field to gather corn it was about half past eight o’clock. The defendant in company with Bradley Overfelt came into the field and began working on a fence some thirty or thirty-five rods from the Sager boys. In a short time the defendant came over to where the boys were at work. When he discovered that they had three or four bushels of corn in the wagon, the defendant said: “Say, boys, do you know you are gathering my corn?” Claude Sager replied that they were not. The defendant then said, “Well, you are,” and got up into the wagon and began throwing the corn out. Claude Sager also got into the wagon and tried to keep the defendant from pitching the corn
Recurring to instruction numbered 13, it is only necessary to say that that instruction was one upon self-defense, and it substantially declared the law upon that subject as has repeatedly met the approval of this court. The embracing of the qualification in that instruction, which was practically the same as in instruction numbered 12, did not render it fatally defective. While it may be said that the principal part of the qualification having been given in another instruction, there was no necessity for embracing it in the one upon self-defense, yet the mere fact that it was inserted therein does not constitute reversible error.
n.
It is nest urged that the court committed error in its refusal of instructions, numbered 5, 6 and 6%, requested by the defendant.
nx
It is next insisted in the brief of counsel for appellant that the court committed error in its action refusing to grant a new trial upon the ground of newly-discovered evidence. It is conceded that the newly-discovered evidence, by which it is sought to obtain a new trial, consists of the testimony of numerous witnesses tending to show that Frank Sager, one of the witnesses introduced by the State, had been guilty of the commission of the offense of larceny. The affidavits of the witnesses undertake to set forth in detail all of the acts which were committed by Frank Sager necessary to constitute the offense of larceny. It is clear that had these witnesses been; discovered and introduced upon the trial they would not have been permitted to testify to the details of the commission of any particular offense, but their examination would have been confined and limited to the inquiry as to the general reputation of Frank Sager in the neighborhood in which he resided for honesty and integrity. That this newly-discovered evidence suggested by appellant could have no other purpose or effect than to impeach the character and credit of the witness, Frank Sager, is not disputed.
This subject is by no means a new one in this court. 'It has repeatedly been in judgment before us and the cases are all in harmony that newly-discovered evidence, the object of which is merly to impeach the
It will be observed in- the case last cited that the newly-discovered evidence was distinguished from the facts in the preceding cases. However, it will be observed that in the discussion of the proposition Judge Burgess strictly adhered to the well-settled rule that newly-discovered evidence, which would merely have the effect of impeaching’ the character of a witness, was no ground for the granting of a motion for new trial.
IV. •
This leads us to the final contention of the appellant, which is predicated upon the alleged misconduct of the deputy sheriff, A. D. Buford, who had charge of the jury after the case was submitted to them and they retired to consider of their verdict. The record discloses that the alleged misconduct of the deputy sheriff in charge of this jury consisted of a response made to an inquiry by one of the jurymen. The juryman said to the sheriff, “Can we go before the judge and tell him how we stand?” and the sheriff, it is said, responded, “No, you are expected or supposed to have a verdict of some kind before you go into court.” In support of this ground embraced in the motion for new trial the defendant filed affidavits of some of the jurors. It is only necessary to say concerning those affidavits that the rule and practice is well’settled that jurors will not be allowed to impeach their own verdicts by any statements or affidavits filed in the cause. [Thompson and Merriam on Juries, secs.
There were other affidavits filed by the defendant and counter affidavits filed by the State. Nearly all of the jurors made affidavits in support of their verdict.
At the very threshold of the consideration of this proposition it is sufficient to say that it is extremely doubtful, even though it be conceded that the sheriff made the response contended for by the appellant, whether such response would furnish a satisfactory reason for granting a new trial. However, we shall not undertake to discuss that phase of the question. The affidavits as furnished by the appellant and the counter affidavits by the State were presented to the trial court, and the finding upon that question was adverse to the appellant. In the absence of any arbitrary action of the trial court respecting the determination of this ground in the motion for a new trial, we are inclined, as has been repeatedly said by this court, to adhere to the finding of the trial judge.
In State v. Howard, 118 Mo. l. c. 136, in discussing a similar objection to jurors, Judge Sherwood, speaking for the court, said: “The circuit judge possessed far better opportunities than we of determining the very right of the matters here at issue, and as there were affidavits pro. and con on this point; as the trial judge was doubtless acquainted with each of the affiants; as every lawyer knows how easily affidavits impeaching the impartiality of jurors are procured, and when the dangerous consequences which would result from lending too facile an ear to post-trial complaints of this sort are considered, we feel no inclination to hold otherwise on this point than did the trial court. ’ ’
A similar ruling was made in State v. Taylor, 134 Mo. l. c. 161, where, in discussing this proposition,
The trial judge passed upon this showing made upon this ground of the motion for new trial, and there being an entire absence of any indication disclosed in the record of any arbitrary action on the part of the trial court, we are inclined, as was ruled in State v. Page, 212 Mo. l. c. 241, to indulge the presumption that the trial judge dealt fairly and impartially with the defendant in its action upon the motion for a new trial.
We have, after a careful consideration of the disclosures of this record, given expression to our views upon the legal propositions involved. The testimony is in irreconcilable conflict. The testimony as introduced by the State furnishes full support to the conclusions reached by the jury. The testimony on the part of the defendant, if relied upon, would have entitled him to an acquittal. But at last, the jury must consider the conflict of testimony. That is their exclusive province, and it is unnecessary to cite the long line of uniform decisions by this court that verdicts will not be disturbed where there is substantial evidence to support them, upon the simple ground that there is a conflict in such evidence.
Entertaining the views, as herein-indicated, the judgment of the trial court should be affirmed, and it is so ordered. -