*1 Missouri, Respondent, STATE STOKES, Appellant.
Winford L.
No. 61963. Missouri,
Supreme Court
En Banc.
Aug. 1982.
Rehearing Denied Oct. *2 Louis, McNier, appel-
Howard E. for St. lant. Ashcroft, Gen., Atty. Nancy
John Kelley Baker, Gen., Atty. City, Asst. Jefferson respondent.
MORGAN, Judge. Stokes, Winford L. appellant, guilty of tried to a which found him punishment capital and assessed his murder 565.001, 565.008 and 565.- death. Secs. was entered Judgment RSMo appealed and he has to this accordingly juris- appellate which has exclusive Court V by diction reason of 3 of Article Section apartment identify body. Having of the Constitution of Missouri. ransacked, and bedroom disarray with the all errors enumer- reviewed considered hours col- nearly eight police remained way of and the sentence as appeal ated Among things, lecting other 565.014, evidence. mandated RSMo knife and a butcher toilet bowl contained same is affirmed. the contents purse with the victim’s clutch victim, The record reflects that *3 fingerprints latent therefrom. Several Benda, years thirty-three R. was of Pamela the objects in were from different lifted chil- divorced and mother of three age, the were later prints room determined and four father; in the of their custody dren—then the appellant. Although to be those of Washington was the employed that she at deter- divulge how it was record does not Faculty Center and University Conference the mined, later that police the learned apartment had recently moved to automobile pendant victim’s watch and her City, Washington University Mis- discovery After the missing. were souri; and, evening during that the of Sat- evidence, order “pickup” a was issued February 18, urday, she arrived at a appellant. lounge called “Some Place Else” on Lind- autopsy On the day, February next bergh County. Boulevard in Louis St. Tucker, a performed by Eugene was Dr. date, appellant staying On that with office of Medical Ex- pathologist in the the named a woman Darlene at the Northwest- County. aminer Louis It was found of St. in the city ern Hotel Louis. That St. passed through rigor the body had had a a friend evening she date with named following mortis suffered the and had Wilbert, appellant joined and the two for incision, the left wounds: shallow over a the Heritage dinner at House and later clavical, that upper just beneath the chest lounge arrived at the between 8:30 named length, and one-half was two inches in one m. a p. They and 9:00 secured table close skin; just the a inches width and beneath floor, the dance drinks Wil- to ordered and hand; right a cut on cut on back of the the danced with When bert Darlene. later or- hand; over deep the the cut surface of a delayed, ders were went to find a back; aspect large posterior the cut in the a thereafter, appellant waitress. Soon of the arm which right of the lower third dancing seen with victim and the she re- inches in one-half length, measured three turned to the table with him and introduced extending inch inches to deep, wide and two joined group herself. She the which im- bone; large bruising the area of that was a several bibed rounds of drinks but it seems slightly purple over the left side raised agreed that no one At was intoxicated. chest; large internally of the over a bruise m., approximately p. 11:30 Darlene and Wil- chest; the left bruises side of the numerous bert to they ready announced were leave. neck, the on both sides of abrasions Appellant go asked to to Wilbert the rest- line irregular, straight some and others in a room with him where he said that he posterior running aspect to the around the “would catch ride home” as victim neck; were right lips the side the the had him. con- promised take She later purple; blood was swollen and dark dried arrangement the firmed Wilbert and nose; outside several present in and lounge. the two were left at the scrapes present were or abrasions Tuesday, February On the man- face, right one side the nose on the ager apartment building used multiple right temple; another areas on the muscles; allow pass-key a serviceman enter the hemorrhage within the neck apartment. they victim’s entered a thyroid When hemorrhaging areas of fresh bedroom, back discovered her nude they larnyx; angles gland and in the one of pillow with a body sprawled hyoid recently; the floor had been bone broken pillow apron case over head and an rather the back and large her abrasion over sacrum; police deep inch wrapped superficial, around her neck. were one-fourth right called and her arrived later to cut into subcutaneous fat on employer apartment, appellant shape puncture; chest of a round was advised that his and, knee; a slight right abrasion to the fingerprints had been found therein. evident; liver mortis was examination of Thereafter, he related that he had been in the vagina spermatozoa revealed and was wife, victim, apartment with his thought the victim had sexual inter- women; two other men and two white death; course within six hours of that the “group partied that the until about 5:00 a. cause of death strangulation was manual time, m.” At that his estranged wife had although some linear apparently abrasions said she was a little sick he had taken had been caused apron; her out to the parking lot. Later the two victim was alive at the injury time of to the men out “keys” came with the and he and chest area as reflected condition of Ramona were taken to the Northwestern bruises; and, resultant that death had men, days Hotel. One of the two several occurred more day prior than one later, attempted to sell him the automobile. autopsy. appellant they When the told officers *4 Appellant was seen driving the victim’s King, would check he with Harold said wife, by Ramona, automobile his estranged would not be necessary as that was not girl and her It friend. was seen in front of happened. what The third version of the the appellant Northwestern Hotel where 18, 1978, events evening February of the was staying with gave Darlene. Later he Appel- were then related to officers. the pendant Ramona a just prior watch to the Darlene, boyfriend lant said that her and he two leaving in the victim’s automobile for lounge went to the Place Else” “Some and Bend, Indiana, 3, 1978, South on March there; the victim he was danced with where they stayed for about two weeks her and to remain the two decided when appellant’s there, to arrest. While companions promised left as she to take him pendant Ramona had sold the watch at an home; they lounge to his that when left the antique shop. they by pick up drove Ramona and the to Detectives Earl Shelton and Francis apartment three went to the victim’s and Reich, police of the department of Universi- began drinking; that he and Ramona were ty City, 25, arrived in South Bend on March getting high “reefers” and the victim on p. and at 2:00 m. were police at the her; go asked him to bed with that he station. They greeted by were a Lt. Ma- turned her down as his wife was in another hank brought appellant who to them. Af- part of apartment began the and the victim being identified, ter they appel- informed striking Appel- him open with her hand. investigation gave lant the him a lant then off stated that he “went Upon Miranda form. request, appellant striking started her down.” her and knocked read acknowledged “out loud” and each He standing remembered wife beside right before filling the date and time on him saying, go.” “Let’s He told the officers the signing form and Having his name. that he had wanted to look at the victim agreed officers, to talk to the he was shown and then determined that she was not two photographs of the victim and asked if breathing; wife searched that he and his he had ever seen her. He stated that he did ring, apartment; that he took a man’s not know the depicted woman therein and keys the auto to the victim’s auto and her; had never seen that he had never been itself; apparently that his wife took the lounge; “Some Place Else” that he pendant watch as she showed it to him the woman; did not dance with white real- day, Sunday. next When asked if he that he pendant had never seen the watch. that he his wife in the implicating ized When told that his wife had said he had murder, replied, repeated he “Yes.” He given her, appellant it to then related how brought “factual account” when she was purchased he had it for from a man he $20 room, emphatically did not into the but she denied know but who had been introduced to him at the by King. stating one Harold After the truth thereof when she testified that he had never been to the victim’s trial. been afforded covery” had were taken
Appellant’s fingerprints police re- appears . they compared were name . . “every Bend South objec- by the crime scene Officer those taken at trial court overruled ports.” The Brian, Finger- Supervisor T. Donald and a of the information filing tion to County Police print Louis Section St. “to more request for continuance later that: a Department, and he determined witnesses and at the list of look properly bottle was the fingerprint lift from a scotch has been [appellant] whether determine finger- finger appellant; left index We have this endorsement.” prejudiced lift from the brass bed headboard print a continu- motion for a written not found finger- ringfinger appellant; right file or the trial legal in either ance was the lift from the same bottle print Nevertheless, appel- we look transcript. and, fin- right ringfinger appellant; procedural he was denied claim that lant’s top box on lift from the cosmetic gerprint upon analysis predicated process due thumb right dresser was the of the bedroom private interest to balance the which seeks appellant. avoiding an affected, interest in public on June By an indictment filed the state and the burden on unreasonable mur charged with the appellant was will have safeguards such probable effect or about Febru der of Pamela R. Benda on decisions. reducing the risk of erroneous Thereafter, an information ary instance where the death Certainly, in this thereof was with having been filed lieu obtained, only sought but penalty was not 20, 1979, September drawn para- interest” of “private *5 and the record reflects reinstatement mount; but, of the broad beyond listing Again, on original accusatory document. noted, appellant advances generalizations 22, 1979, in lieu of an information October show- reflecting any tangible argument no ap charged was filed which indictment Thus, appel- thrust of ing prejudice. of 565.- pellant capital with murder under §§ alleged lack to be an argument lant’s seems Therein, 565.008, 001 and RSMo 1978. response In for trial. prepare of time to a conviction allegation was added as thereto, on primarily state relies State guilty to man appellant pleaded had (Mo.1972), Strawther, 476 v. S.W.2d years to nine slaughter and been sentenced similar to had facts somewhat which August pur on 1971. The confinement of a wit- “late” endorsement case. Therein state, thereof, by the pose as announced vigor- the defendant’s upheld ness was over the Habitual bring appellant was to under any of objection due to the absence ous for a Offender Act in the event conviction thereby prej- “that defendant showing was returned and degree lesser homicide * * * the court’s the exercise of udiced In the court to assess thereby to authorize into may be taken many discretion factors the fil punishment. Appellant objected to consideration, including whether defendant ing of the substitute information because the state objection; whether waived the who had contained “endorsed” witnesses deceptively or in or acted surprise intended not been listed on the indictment. faith, disadvantage intention to bad all expressed surprise and stated that state 364; Glon,Mo., defendant, v. 253 S.W. State However, a had been endorsed. witnesses 900; Lassieur, Mo.Sup., S.W. v. State that certain review of the “file” reflected surprised fact defendant whether in were not on the names on the information disadvantage, State any and suffered An off-the-record withdrawn indictment. wheth- Webb, Mo.Sup.,432 S.W.2d been that “there had discussion established readi- testimony given might type of er the which was not a second sheet” of witnesses Gooch, contemplated. been ly have of clerical with the indictment reason Id. 476 S.W.2d 283.” Mo.Sup., S.W.2d otherwise; was no and that there error or that none submits at 579-80. The state to work evidence of bad faith or intent can be mentioned Strawther the factors by the state. disadvantage appellant on it. As to the adversely against “full dis- advised the court that determined state surprise deception, appellant’s intentional Combined with challenge matter of late transcript none is as the reveals that endorsement witnesses as shown complaint just noted was a further that the were on separate piece the witnesses “statutory aggravating notice of the cir original with the paper indictment which from 565.0121 was cumstances” taken inadvertently was when the in- misplaced immediately prior Again, filed to trial. formation in lieu thereof was filed. Final- allegation was asserted nor effort made to the state ly, submits that the witnesses prejudice created there any specific show were shown in police reports, were ca- and, not commend the by; although do pable of contemplation obviously or were being untimely, so we cannot find state for here, purposes “innocuous.” For we assume prejudiced appellant’s how cause was that five new names had been added. The fact, reflects manner. In the record testimony two of the late-endorsed wit- nor his counsel could ar neither nesses went to the identification of the vic- conclusion. As the rec ticulate a different tim’s automobile. had been Since shows, counsel admitted that appellant’s ord it, seen driving he could assume evidence of 20,1979 month September full before —a ownership would be particularly offered — through its prose the trial —that since he claimed no interest therein. The an intent to seek the cutor had declared Ramona, testimony of the ex-wife of appel- The record further accounts penalty. lant, having identified her as been married by ap caused delay being for some of the separated appellant during but from period time pellant, during most of the (when month February the crime here, capital mur having interest another occurred) him finally divorced from City of Louis. charge pending der in the St. 22, 1979; and, that she had not January officials had agreed It seems participant been a in the homicide nor first so that planned City proceed present thereat as she had never been to to be shuffled appellant would not have that, “I Washington and further don’t City and between the “back and forth” even know where it is.” That she denied Later, City in the County. charge with the crime, any immediate involvement proceed “dragging out” it was decided having implicated after been for some rea- *6 Furthermore, a brief with the instant case. son known only appellant, would not review criminal record is of appellant’s of Further, any surprise. come as for some great the issue: On significance reference continuity thought, of we note that her 4, 1971, August were convictions for there testimony holdings was admissible Degree, Rob Manslaughter, Robbery First Damico, (Mo.1974) State v. 513 351 S.W.2d Custody; bery Degree Escaping First and Euell, recently that more in State v. 1979, thereafter, 10, ap September on (Mo. 1979). 583 173 banc Wilbert’s S.W.2d Murder Second pellant pleaded guilty to appellant’s confirmed testimony only story Degree, Robbery First Degree and Armed of being together part evening their Action, Custody and Escaping Criminal lounge at the and was as innocuous as that Escaping Cus Stealing a motor vehicle deceased, Savoldi, Myrna ag of a friend of the Certainly, tody before conviction. only who said that the knife shown to her filed could not gravating circumstances as looked like one she had seen a few weeks much surprise have come as a earlier the facts as apartment. in the victim’s less his counsel. Under 565.012.2(1) of mind and that as a result thereof it was 1. Whether the defendant has a § vile, history outrageously wantonly substantial of convic- or inhu- serious assaultive or horrible tions. man. (4)§ 565.012.2(9) (2) Whether at time 565.012.2(4) Whether defendant § had murder of Pamela R. Benda the defendant purpose murdered Pamela R. Benda for the of custody place escaped receiving money any of a of thing from the lawful other of mone- tary confinement. value. (3) 565.012.2(7) Whether the murder of depravity Pamela R. Benda involved torture or
721
Appellant, relying Witherspoon
v. Illi
without merit
presented,
point
we find the
process
1770,
nois,
510,
there was
denial of due
88 S.Ct.
20 L.Ed.2d
391 U.S.
significance.
constitutional
(1967), alleges
776
that the trial court erro
challenges for
neously sustained the state’s
contends that
the trial
Appellant
(Nos. 21-36).
veniremen
Al
cause of two
court
state to
allowing
erred in
seek
review,
though
preserved
appellate
not
for
penalized
as it
him for exer
argument
as made on the
consider
cising
by jury.
to a trial
The
right
it without
“plain
basis of
error” and find
argument
showing
stems from the record
during
appel
the summer
1979 the
is not novel and has
question
merit. The
engaged
“plea
lant and state had
bar
many
been considered
times
this Court.
gain” negotiations resulting
plan
in a
Dig., Jury, Key
Mo.
No. 108. Recent con
plead guilty
degree
to second
may
siderations thereof
be found
v.
State
20,
However,
September
murder on
606,
(Mo.
Newlon,
615
banc
627 S.W.2d
he changed
plead
his mind and decided to
Mitchell,
223,
1982)
611
S.W.2d
State
guilty.
prosecutor
not
then formally
(Mo.
1981).
prob
228
banc
Relative
announced his intention to seek the death
lem,
holding in
generally,
is this Court’s
which,
penalty,
as heretofore noted was
646,
(Mo.
Treadway,
S.W.2d
over a month before trial. There is no
denied,
1977),
banc
cert.
U.S.
indication whatever of
vindictiveness
(1977),
that:
S.Ct.
58 L.Ed.2d
state,
part of the
could be
nothing
determining
qualifications
In
gained by extended consideration of cases
juror,
very
court has
prospective
trial
relevant
thought
and cited by
parties.
discretion,
ruling
wide
and the court’s
guidance may
Sufficient
be found in Bor
will
appeal
not be disturbed on
unless it is
denkircher v. Hayes, 434
U.S.
S.Ct.
clearly against
the evidence and consti-
(1978),
prosecutor carries out a threat made dur- court, (citations ing plea appellate than an omit- negotiations to reindict the ac- cused on charges ted) more serious if he does
358,
Strickland, banc 609 S.W.2d 1980): way. 21: I feel the same JUROR NO. is, jur- after My question
MR. then exclusion of argument WALSH: the instruc- you hear the evidence and sub- capital punishment opposed ors law, your you tions of the could set aside of conviction stantially increases the risk personal feelings pos- consider it as a rejected because the continually has been punishment sible in this case? was con- support in evidence offered said, just JUROR NO. 21: Like I I don’t fragmentary, sidered too tentative and penalty. believe in the death (citations omitted) MR. Does that mean no matter WALSH: that his Complaint is made were, would you what the circumstances he was al impartial not fair and because impose penalty? not vote to the death “strikes” while only peremptory lowed nine changed JUROR NO. 21: Unless someone 1,1979, have had prior to he would October no, moment, my mind. At the I don’t the com Initially, note that twelve. believe in it. trial court’s act plaint centers around the Prior to applicable statute. following the feeling I JUROR NO. 36: I also have the 1, 1979, 546.180, RSMo October § penalty. I don’t believe the death strikes gave peremptory twelve defense give believe I a sentence like don’t could 546.180, and the state six. New RSMo that. peremptory nine gives each “side” you MR. You don’t believe WALSH: record, the homi strikes. As shown could? charged was which cide for JUROR 36: No. NO. the trial was after change MR. You don’t believe WALSH: He cites no the effective date thereof. circumstances? but claims the authority position for his JUROR NO. 36: No. post an ex facto new statute constitutes MR. You wouldn’t even be able WALSH: Eaton, 316 law. The defendant you if to consider the Court instructed (1927), presented Mo. S.W. it? rejected. which was argument the same Well, as now. I JUROR NO. 36: as far Therein, that: “The number it was said say would no. trial defendant on challenges to which the *8 matter, purely procedural is a is entitled of the cold record reading Even right. a substantial and does not constitute they could conveys a belief of the two that 1103, Juris, is said: ‘Where Corpus In 12 case; any not the in impose mere procedure matters of a law relates to and, we the trial court say cannot that any deprive the accused ly, and does not or unam by finding unequivocal erred post ex fac- it is not protection, thereafter substantial biguous opposition thereto and qualifications, challenges participation. changing their to. Thus a law sustaining to persuasive. response, been In selection, impan- method of and method of jurors, allowed the accused eling challenges there was direct evidence submits that * * * post is not ex prosecution, or the the confession particularly appellant’s guilt, as to offenses committed before its facto in v. officers. As said State gave police he ” passage.’ 1971): (Mo. Ayers, 470 banc S.W.2d was whol- arguing “In that the case State’s It is contended that the trial court circumstantial, overlooks the ly appellant improperly admitted into evidence certain by appellant’s vol- provided direct evidence photographs body they of the victim’s as admission Appellant’s statements. untary probative any were not material fact. evidence that he shot a man ... was direct # Exhibits 36 and # 44 were admitted Spry, guilt.” of his also: State we, See again, appellant’s objection over the (Mo.App.1979). Under look the S.W.2d challenges thereto under presented, facts the trial court cannot be pertaining plain rules to error. In event, error; and, “legal we find both relevant and not hold- charged with Court’s ly” inflammatory. photo Umfrees, Exhibit # 36 is a ing in 433 S.W.2d depicting right-rear plain of the victim’s 1968), dispositive (Mo. appears banc 287-88 parallel neck and exhibits lateral and bruis point: es consistent with the medical examiner’s op- person Evidence that another had death, i.e., testimony regarding the cause of committing the portunity or motive for manual strangulation. He also testified being which the is crime for defendant mortis,” body that exhibited “liver that proof tried is not admissible without discoloration caused by settling blood into person such committed some act other the lowest tissues thereof once circulation crime, him with the directly connecting ceased, has and Exhibit # 44 confirmed its (citations omitted) generally The test for presence which tended to confirm the testi of such is stated admission evidence mony days that the victim had died several b, in Law 662 22A C.J.S. Criminal discovery. before Nothing has been evidence, to be page as follows: ‘The presented suggesting the trial court ruled admissible, proof directly must be such erroneously photos men admitting the corpus person connects the other with the tioned. delicti, clearly point and tends to out alleged It is that the trial court guilty someone besides accused as sustaining objection erred in the state’s to acts, person. and remote Disconnected appellant’s request that he be allowed to sepa- outside the crime itself cannot be introduce evidence from which the evi- rately proved purpose; for such might person may infer that another have dence can have no other effect which committed the murder. The evidence ten another, suspicion a bare than to cast presumably dered established would have as to conjectural or to raise a inference victim, boyfriend that a former one another, of the crime the commission McPherson, Leroy opportunity had an is not admissible. crime; fingerprints commit that his discharge appel Argument apartment; approxi were found in the made, allegations predicated upon lant mately two weeks to her death that the earlier indictment was defective in upon victim had her reported assault un failing accurately specify statute and, police; after the police, appellant charged. der which Such crime, instant had first arrested and later errors, the relief any, if would not dictate hearing released McPherson. After upon which requested as the information thereon, the court ruled the evidence to be complied with admittedly was had trial too In chal remote time and irrelevant. law; suggest fails to and even made, lenging ruling asserts preju respect what he could have been against the evidence him was all cir have cumstantial and that tendered could diced.
724 (4). in
Appellant
place of confinement” as submitted
alleges that
565.006.2
§
unconstitutionally limited evidence that he
(3)
aggravating
We return to number
otherwise might
presented by provid
have
provides
great-
circumstances because it
the
ing that: “In such hearing, subject to the
guidance
comply
est
in our effort
with
evidence,
laws
565.014.3(3)
of
jury
judge
resolving
or
shall
of
in
the dictates
§
hear
extenuation,
additional
the sentence of death is exces-
evidence in
“[w]hether
im-
mitigation,
disproportionate
penalty
or
to the
aggravation
sive
punishment
”
cases, considering
both the
posed
similar
...
.
The allegation is directed toward
jury by
crime and the defendant.”
the requirement
that evidence offered
inbe
finding
aggra-
returning an affirmative
compliance with the “laws of evidence.”
(3) thereby re-
vating circumstance number
appellant
Since
nothing by
offered
way of
Benda
solved that the murder of Pamela R.
evidence in “mitigation”
argument
depravity of mind and
involved “torture or
truly
rejected.
academic and is
outrageously
it was
that as a result thereof
alleged points
Other
of error attack
vile,
or inhuman.”
wantonly
or
horrible
the existing statutory
scheme
considera
redundant,
the evidence
being
Without
too
tion of and assessment of the
of acts.
types
can be divided into four
in Missouri
arguments recently
enter
the victim
that
medical examiner testified
tained and fully developed in
v.
State Mer
beaten,
by
revealed
severely
had been
cer,
(Mo. banc),
denied,
S.W.2d 1
cert.
her head and
about
large
deep
bruises
454 U.S.
102 S.Ct.
70 L.Ed.2d
least
upper chest.
had sustained
She
(1981);
Shaw,
State v.
ed to the victim The evi- apron garrate-like in a fashion. Lastly, having considered those er resulting acts and dence would show these rors enumerated we by way appeal, con while the injuries to have been sustained sider the punishment assessed as mandated ex- the medical Finally, victim was alive. 565.014.3(1), (2) (3). manual- aminer that the murderer testified First, nothing sug- there is in the record by the shown ly strangled the victim as gesting imposed that un- sentence was neck, and damage internal violent prejudice, der the passion, influence of physical exaggerating the serious thus any other arbitrary factor. her actual prior to abuse of the victim death. Second, supports jury’s the evidence require- the “threshold Having found finding specified aggravating cir- statutory ment,” i.e., presence cumstances as shown the admitted circumstances, con- aggravating “pleas” (1) convictions and appellant. recommended all the evidence sidered Certainly proved that ap- imposed be sentence the death “has a substantial of serious history assault- pellant. ive convictions” present reason
conviction
being
third for the commis-
the crime
both
into account
taking
After
sion of a
plus
homicide
two others on first
defendant,
concluded
we have
degree robbery charges and armed criminal
or dis-
excessive
is not
penalty assessed
(2)
value,” i.e.,
“Things monetary
action.
imposed
penalties
proportionate
automobile,
again,
pen-
surveyed,
man’s watch and the
have
We
similar cases.
in State
dant watch were taken from the victim.
identified
specifically
those cases
Shaw,
considering
(3),
(Mo.
1982)
Prior to
number
note
needs to the state’s time This cannot be done prepare
to to meet it. morning until the given
when notice is not a prosecutor
of the trial. A remark he intends to seek the
month earlier that prose- penalty is no substitute. He is not cutor has to do more than that. Missouri, Respondent, STATE remark, knows that bound such a and he such remark alone is not sufficient. a speculate
defense should not have to TRIMBLE, Appellant. Patrick E. in- prosecutor actually whether or not the No. or whether penalty tends to seek the death using negotiat- he as a merely is this threat Missouri, Supreme Court case, In this ing chip plea bargaining. for En Banc. trial the example, just a month before 31, 1982. Aug. accept guilty a ready prosecution charge. plea degree a second murder 7, 1982. Rehearing Denied Oct. defendant refus- Then for some reason the For all the through ed with the deal. go knew, remark prosecutor’s
defense more than threat. will not plain
I that we would make handling sort of of a death
permit undue imposing any case. It is not
penalty prosecu- require
burden on the state to respect to timely
tor to notice with give in cases where
aggravating circumstances sought. Prosecutors
the death requirement, easily comply
can with this insist on it. We are
and I think we should give our precedent when
setting bad here. The
tacit to what occurred approval all, that, de- after
principal opinion says con-
fendant himself knew about
victions, could not have come so that