author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Olin Neal LAFFERTY, Appellant.
    No. 52289.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Ben J. Martin, Springfield, for appellant.
   HIGGINS, Commissioner.

Appellant was convicted by a jury of perjury. Section 557.010, V.A.M.S. Pursuant to such verdict and upon a finding of prior conviction, the court assessed appellant’s punishment at 7-years’ imprisonment in the penitentiary and sentenced him accordingly. Sections 556,280 and 557.020, V.A.M.S.

Appellant was tried on an amended information which charged him with a prior felony and that on February 1, 1966, he did “wilfully, unlawfully and feloniously, knowingly, corruptly and falsely swear and testify, in substance and to the effect that he did not have concealed about his person on the 30th- day of January, 1965, a certain 22 Rosco Steel Revolver, Serial No. 601052, which testimony was given in a concealed weapons trial in which (he) was the defendant * * *, under oath duly administered by Lylian Garrison, Deputy Clerk of the Circuit Court of Greene County, Missouri (the said Lylian Garrison being a person who had competent authority to administer said oath), which case was then and there pending in the Circuit Court of Greene County, Division I, before the Honorable Jack Powell, Judge * * *, which Court and Judge had competent authority to hear the said case in which all of the aforesaid testimony was material to the issue as to whether or not Olin Neal Lafferty did have concealed about his person, the said 22 Rosco Blue Steel Revolver, Serial No. 601052, whereas in truth and in fact, the said Olin Neal Lafferty did have concealed about his person the said 22 Rosco Blue Steel Revolver, Serial No. 601052, all of which the said Olin Neal Lafferty * * * knew to be true at the time he testified falsely as aforesaid, contrary, etc. * * *.”

The concealed weapon charge was tried by a jury before the Honorable Jack A. Powell, Judge of Division I, Greene County, Missouri, Circuit Court, February 1, 1966. (The resulting conviction was affirmed in State v. Lafferty, Mo., 415 S.W.2d 792.)

In this case, Judge Powell testified that he was the circuit judge in appellant’s February 1, 1966, trial on the concealed weapon charge; that the material issue in that case was whether Olin Neal Lafferty carried a Rosco revolver, Serial No. 601052, concealed upon his person; that Lylian Garrison was the deputy circuit clerk during that trial and that she is a person duly authorized to administer oaths to witnesses to tell the truth.

Lylian Garrison testified that she was a deputy circuit clerk on February 1, 1966, in the trial on that date of State of Missouri v. Olin Neal Lafferty; that she administered an oath to tell the truth to Olin Neal Lafferty as a witness in his own behalf in that case; and that he did subsequently testify in that case.

Robert O. Wray, official court reporter for Judge Powell, testified that he took and accurately recorded all of the testimony in the previous trial of Olin Neal Lafferty; that he transcribed the testimony given by Olin Neal Lafferty under oath in the previous trial; that a portion of the cross-examination of Olin Neal Lafferty had been transcribed at the request of the prosecution, which reads:

“BY MR. YOCOM: Q. Now, you are saying that this weapon, State’s Exhibit A, was not taken off your person, is that correct? A. That’s right. Q. That’s your testimony? A. That’s my testimony.

“Q. Had you ever seen this weapon before today, can you tell us about that? A. I never recognized it before today.

“Q. Did you see that gun the night of January 30th, 1965 ? A. Not that I know of. Q. You never had it in your hip pocket that night, is that what— A. I sure didn’t. Q. —your testimony is? A. That is my testimony.

“Q. You realize you are under oath ? A. I realize where I’m at. Q. And you realize you are under oath in making these statements— A. Yes, sir. Q. —is that correct? A. Yes, sir.

“Q. All right. You have never seen this gun before today. A. Not that I know of. I didn’t have it in my hip pocket, I know that.

“Q. Where did you have it if you have seen it before ? A. If I seen it before ? It was when he come up with it. I don’t know if it’s the same—

“Q. Who are you talking about came up with it? A. That cop out there when he came up with the gun and he said he took it out of my pocket. Q. You are talking about Ray Landers ? A. I guess that’s his name.

“Q. Are you claiming that he came up with this weapon out of his own pocket and it was never in your pocket? A. I don’t know where he came up with it from, but he didn’t get it out of my pocket.

“Q. He never got it out of your pocket, nor off your person, is that right? A. That’s right. That’s right. Q. Is that your testimony? A. That’s it.

“Q. All right. You never saw any weapon like that that night, is that correct? A. That’s right.”

Mr. Wray also identified Exhibit E in this case, a 22 Rosco revolver, Serial No. 601052, as being the same as Exhibt A referred to in the testimony transcribed from the previous trial.

On January 30, 1965, Raymond Landers, patrolman on the Springfield, Missouri, police force, responded to a call and went to a laundry in the 1500 block on North Barnes. He found a Mr. Earls standing in the laundry holding a gun on Olin Neal Lafferty. He arrested him and, upon searching him, found a 22-caliber revolver, State’s Exhibit E, in his right hip pocket. “It was fully concealed down in the pocket, was also covered by a coat.”

Wade Earls operated a laundry and trailer court at 1545 North Barnes, Springfield, Missouri. On January 30, 1965, he had occasion to take a gun and go into his laundry where he .found Olin Neal Lafferty. He tried to put his hands into his pockets and Mr. Earls held the gun on him and told him not to put his hands into his pockets. He stayed that way until Officer Landers arrived. Mr. Earls watched Officer Landers search appellant and take a small revolver, identical to Exhibit E, from appellant’s right, back pants pocket.

Eva May Earls also observed the search of Olin Neal Lafferty by Officer Landers and saw him take a gun like Exhibit E from appellant’s person.

After resting, the State requested and was granted leave to reopen its case. Lylian Garrison was recalled and testified that when she administered an oath to tell the truth to Olin Neal Lafferty on his February 1,1966, trial, she was a person who had competent authority to administer that oath.

As upon his trial on the concealed weapon charge, State v. Lafferty, Mo., No. 52199, supra, appellant was represented by counsel upon trial, in preparation and hearing of his motion for new trial, and until after the filing of the transcript in this court on November 29,1966. On December 22,1966, appellant filed a motion in this court “to have appeal considered without further entry by defense counsel” on “those Points properly preserved for appeal in Appellant’s Motion for New Trial and those matters required by Criminal Rule 28.02, V.A.M.R. to be reviewed.” The motion was sustained.

Appellant does not question the sufficiency of the evidence; suffice to say that the foregoing evidence would support a finding that defendant perjured himself on a material matter in his testimony under oath at his February 1, 1966, trial on a charge of carrying a concealed weapon. Section 557.010, V.A.M.S., State v. Clinkingbeard, 296 Mo. 25, 247 S.W. 199, 202 [3].

In point 1 of his motion for new trial appellant charges that the court erred in permitting the State to amend the original information during the opening statement of the prosecuting attorney to add the allegation “the said Lillian (sic) Garrison being a person who had competent authority to administer the said oath.” He contends that the original information did not state a charge against him and the amendment by which a “charge was created” therefore prejudiced his substantial rights.

It is true that the original information was fatally defective for failure to aver that the person who administered the oath to appellant had competent authority to administer the same. Section 557.030, V.A. M.S.; State v. Biedermann, 342 Mo. 957, 119 S.W.2d 270. However, the original information attempted to charge and did advise appellant that he was accused of perjury by wilfully testifying falsely to a material matter while under oath in a previous trial. “[T]he very essence of the crime of perjury is wilful false swearing to a substantially definite material fact.” State v. Vidauri, Mo., 305 S.W.2d 437, 440[2], See also Leonard v. Superior Court, 4 Cal.2d 215, 48 P.2d 687, 688[2, 3]. Thus, even though the amendment added language which admittedly removed all doubt from the sufficiency of the charge of perjury, it cannot be said that the original information was not sufficient to advise appellant that he was accused of perjury, and there is no prejudice to a defendant by reason of an “amendment” or correction of an information “as long as no additional or different offense is charged. * * * V.A.M.S. § 545.290; Supreme Court Rules 24.02, 24.11.” State v. Mallory, Mo., 336 S.W.2d 383, 385[5], See also State v. Colbart, Mo., 411 S.W.2d 92, 95 [3-5]; State v. Lane, Mo., 371 S.W.2d 261, 264[4]; and see State v. Redding, 362 Mo. 39, 239 S.W.2d 494, where, as here, the amendment came after the jurors were sworn.

Nor was there error as suggested by point 2 when “after it allowed the State to amend its Information * * *, the trial court did not afford the defendant an opportunity to have a preliminary hearing.” Appellant concedes that the court “did inquire of the defendant how he wished to plead to the amended information,” and the record shows that appellant was arraigned on the amended information; that appellant and his lawyer were offered opportunity to confer; that no continuance was sought; 'that no objection was made to any lack of preliminary hearing; that defendant entered a plea of not guilty and proceeded to trial, represented by counsel. Under such circumstances, requirement, if any, of preliminary hearing, was waived. State v. Keeble, Mo., 399 S.W.2d 118, 120-121 [8, 9].

Appellant complains, point 3, of the admission in evidence of Exhibit E, the 22 Rosco revolver, serial No. 601052, as being immaterial to the charge of perjury and therefore prejudicial and inflammatory. Exhibit E was first mentioned by witness Wray in testifying from his official transcript of proceedings out of which the charged perjury arose. He testified that defendant stated, while previously on trial for carrying a concealed weapon, that the weapon, formerly Exhibit A and now Exhibit E, was not taken from his person by removal from his pocket. The State used Exhibit E in showing that it was one and the same with the revolver which appellant denied under oath having on his person and removed from his pocket by Officer Land-ers. The gun was thus material and relevant to the issue here, i.e., did appellant perjure himself in respect to whether he carried the gun concealed on his person as charged in the first trial ? A similar situation existed in State v. Cusumano, Mo., 372 S.W.2d 860, 865 [4], where testimony of police officers concerning cartridges they found was properly admitted as tending to show that deceased did or did not have or use pistol and that the only pistol involved was one owned by one who shot him, in perjury prosecution wherein state charged that defendant falsely testified that deceased had held a gun.

Point 4 charges an abuse of discretion in permitting the State to reopen its case and return Lylian Garrison to the stand to testify that she had competent authority to administer an oath to appellant while on his previous trial. In State v. Haun, Mo., 324 S.W.2d 679, the court permitted the State to reopen after it had rested to call a witness to prove venue in a rape prosecution. What was said in that situation is dispositive of this charge: “Whether and under what circumstances it is proper to permit the state to reopen its case is within the discretion of the trial court. The trial court’s action presently complained of indicates no abuse of that discretion and none has been demonstrated.” 324 S.W.2d l.c. 682[6, 7].

By points 5 and 7 appellant contends that “although the trial court is not required to supply a definition of reasonable doubt,” the court erred in refusing his Instruction C which included a definition of reasonable doubt for the reason “that in the Court’s Instruction No. 2 the Court states that the term reasonable doubt would be defined in other Instructions however the Court failed * * * to offer a definition of reasonable doubt * * This complaint was answered in State v. Wells, Mo., 305 S.W.2d 457, where, as here, the trial court gave an instruction on “reasonable doubt”; the court refused defendant’s instruction which he said “properly defined the meaning of reasonable doubt,” and no other instruction was given to define that term. The court held, l.c. 459[6], that the trial court did not err in refusing to define reasonable doubt, quoting from State v. Robinson, 117 Mo. 649, 23 S.W. 1066, 1069, “ ‘ * * * It is difficult to explain simple terms like “reasonable doubt” so as to make them plainer’ ” and State v. Talmage, 107 Mo. 543, 17 S.W. 990, 991, which commented critically on attempts to define “reasonable doubt” saying, “ ‘Reasonable doubt is reasonable doubt, and that is about all that can be said in regard to it.’ ” Obviously, if no definition of reasonable doubt is required (or even desirable), the court committed no error in failing or refusing to define it.

Point 6 also relates to appellant’s refused Instruction C which he says “stated that the defendant was presumed innocent until proven guilty beyond a reasonable doubt * * No error may be laid to refusal of Instruction C on this ground because the court covered the presumption of defendant’s innocence in given Instruction 5. State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294, 296[4, 5].

By points 10 and 11 appellant charges that Instruction 3 “failed to instruct that the testimony of more than one credible witness must also establish the falsity of the statement beyond a reasonable doubt,” and that his Instruction B on the same subject should have been given because it accurately instructed “with particular reference to the testimony of a witness with corroborating evidence or the testimony of several witnesses as to the falsity of any statement made by the defendant in a previous trial.” The record refutes these contentions because Instruction 3 told the jury: “The falsity of such statement must be established * * * beyond a reasonable doubt, either by the evidence of more than one credible witness, or by one such witness strongly corroborated by other evidence of facts or circumstances which convince your mind of the truth of the testimony given by such witness, and * * * that the testimony of such witness, thus corroborated, establishes the falsity of such statement beyond a reasonable doubt.” Thus, it may be seen that the instruction contains the matters said to be missing by appellant, and it fully informed the jury in what manner it must find defendant’s allegedly false statement was impeached. State v. Kaempfer, supra, 119 S.W.2d l.c. 296[5]; State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 335 [52].

Appellant claims further error in refusal of his Instruction B “which included terms touching the credibility of the witnesses in that the trial court wholly failed to instruct the jury at all on credibility of witnesses.” The record does not show that any credibility instruction was requested; Instruction B can in no way be construed as a credibility instruction or request for such an instruction, and “it is not an instruction that the court is required by Sec. 546.070, to give as a part of the law of the case.” State v. Drake, Mo., 298 S.W.2d 374, 377[9]; State v. Hester, Mo., 331 S.W.2d 535, 537[3],

The review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the amended information is in proper form and sufficient to comply with specific requirements of Section 557.030, V.A.M.R.; defendant was accorded a jury trial upon his plea of not guilty going to the amended information; the verdict is in proper form and is responsive to the issues;: the punishment is within legal limits; the motion for new trial was considered; and allocution was granted.

Judgment affirmed.

Houser and Welborn, CC, concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: LAURANCE M. HYDE, Special Commissioner.

license: Public Domain

text:
    Glen A. JOHNSON, Respondent, v. Jeff B. WEST, Appellant.
    No. 52223.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Rehearing Denied July 10, 1967.

      Robert M. Fox and Albert J. Yonke, Kansas City, for respondent.
    Gene R. Martin, Ennis, Browne & Martin, Kansas City, for appellant.
   LAURANCE M. HYDE, Special Commissioner.

Action for $40,000.00 for personal injuries resulting from a collision of automobiles; verdict for defendant but plaintiff’s motion for a new trial was sustained. Defendant has appealed from the order granting a new trial.

Plaintiff was a passenger in a car being driven south by his cousin, George Johnson, on Highway 71, about 11:45 a. m. A collision occurred, at the “T” intersection of 119th Street, with defendant’s car which came from the west on 119th Street to the Highway. Defendant was driving east on. 119th Street, intending to turn north (left) from 119th Street which was 19 feet wide. There was a stop sign on the south side of 119th Street 12 feet from the west edge of the Highway and defendant stopped there. There was a railroad overpass 150 feet north of the north edge of the intersection which crossed the Highway at an angle, northeast to southwest, with an abutment on the west side close to the edge of the pavement. This abutment obstructed the view from 119th Street north of the overpass. There were three traffic lanes on the Highway at the overpass and south to a few feet north of the 119th Street intersection where a fourth lane began. There were yellow “no passing” lines on the outside lanes of the Highway, between the overpass and the intersection, which would keep traffic out of the center lane between these points if observed. The Highway was slightly upgrade from the overpass through the intersection. Plaintiff was riding in the front seat to the right of the driver. His wife and children were in the back seat but there was no conversation or radio to distract his attention.

When defendant reached the intersection there was a continuous line of cars going south in the west lane. However, the car in which plaintiff was riding moved into the center lane just before it reached the overpass. Defendant waited at the intersection until a lady in the line of southbound traffic stopped her car at the north edge of the intersection and motioned for defendant to proceed. When he did so and reached the center lane his car was struck by the car in which plaintiff was riding, hereinafter called the Johnson car. Defendant said his view was obstructed by the continuous line of cars in the west lane of the Highway and he did not see the Johnson car until the front five feet of his car was beyond the left side of the line of southbound cars. He said he then applied his brakes, stopping in about three feet. (Plaintiff’s evidence was that defendant’s car was still moving when the collision occurred.) Defendant said the Johnson car was going over 35 miles per hour and it left 42 feet of skid marks. The speed limit was 35 miles and plaintiff’s evidence was that it was not exceeded. Other facts will be stated in connection with the rulings hereinafter made.

The court granted a new trial because of refusing to give Instruction D, requested by plaintiff, which was as follows:

“Your verdict must be for the plaintiff if you believe:
“First, defendant {either) failed to yield the right of way, or failed to keep a careful lookout, and
“Second, defendant’s conduct on (in) any one or more of the respects submitted in paragraph First, was negligent, and
“Third, such negligence directly combined with the acts of George Johnson to cause damage to plaintiff.”

Defendant contends that because of the omission of the above italicized words in parentheses which are in M.A.I. Instruction 17.02 the court’s refusal was correct. Instruction D submitted an alternative without including the word “either”, so we do not consider its omission makes this instruction prejudicially erroneous. The use of the word “on” for “in” was no doubt a typographical error and the meaning of Instruction D was evident. In Wegener v. St. Louis County Transit Co., Mo.Sup., 357 S.W.2d 943, 949, we said concerning the use of “eminent” when “imminent” should have been used in an instruction submitting humanitarian negligence: “Nor did the use of the word ‘eminent,’ instead of ‘imminent,’ justify the refusal of the instruction. The obvious misspelling of the word was an insubstantial and trivial imperfection. Absolute perfection in form is not the test. The test is whether the instruction is substantially correct. * * * While Instruction No. A may not have been ‘technically perfect’ in that it contained a patent typographical error and a word obviously misspelled, it was substantially correct in form and substance and for this Court to justify its refusal for such slight and inconsequential deviations would be to set the standard above that required in the practical administration of justice.” We hold that is the situation here.

However, before considering defendant’s other contentions concerning Instruction D, we will rule defendant’s claim that plaintiff was guilty of contributory negligence as a matter of law in failing to protest and warn the driver about driving in the center lane. Defendant bases this on the two following circumstances, which he says required a warning by plaintiff: “(a) the movement of the Johnson car into a ‘no passing’ lane in heavy traffic, and (b) the approach of the Johnson car toward a blind intersection in the ‘no passing’ lane traveling at least 35 miles per hour.” The evidence showed that the Highway had been widened to 40 feet, with four ten-foot lanes before it reached the intersection. It does not appear that plaintiff saw the yellow line and there was evidence that the yellow line was dim. The driver of the Johnson car said there was no yellow line where he first moved from the outside lane (there was no evidence that the yellow line extended north of the overpass) and that he could not get back into the outside lane after going under the overpass because of the continuous line of cars in it. Plaintiff’s evidence also was that the Johnson car was to make a left turn to the east to go on to Blue Ridge Boulevard, the next street south, and had to get out of the outside lane to do so. There was no evidence of any northbound traffic on the Highway. Our conclusion is that consideration of all these facts fails to show plaintiff was guilty of contributory negligence as a matter of law. The case defendant cites, Wilson v. Cade, Mo.App., 375 S.W.2d 577, 581, presented an entirely different situation.

As to Instruction D, defendant says the court was correct in refusing it because there was no evidence to support a submission on failure of defendant to keep a careful lookout and because there was no evidence to support a submission on failure of defendant to yield the right of way. However, considering the evidence from the view most favorable to plaintiff as we must, the jury could reasonably find that defendant’s car was never stopped before the collision; that the lady who motioned defendant to proceed had stopped her car near the west edge of the Highway somewhat north of the north side of the intersection; and that defendant’s car was in the south half of 119th Street, which would give him a wide angle of vision. On the basis of these facts the jury could reasonably find that defendant could have seen the Johnson car approaching and could have stopped before entering the lane in which it was traveling. As we said in Herr v. Ruprecht, Mo.Sup., 331 S.W.2d 642, 648: “ * * * defendant’s duty to ‘yield the right of way’ existed not merely at the entrance and while she was stopped, but it continued with her into the intersection if and when it appeared (or reasonably should have appeared) to her that plaintiff’s approach had then created an immediate hazard; this is true, at least to the extent that she might then be able to stop or slacken and let the other car pass. * * * In other words, the duty to ‘yield’ may not be wholly disregarded once a motorist gets the front end of his vehicle into an intersection with a through highway.” Therefore, we must rule that these submissions were proper.

Defendant’s remaining contention is that the court’s refusal to give Instruction D was not prejudicial to plaintiff. The court considered its refusal of Instruction D, which used the words prescribed in M.A.I. No. 17.02, modified by the first alternative provided in M.A.I. 19.01, was prejudicial to plaintiff. After refusing Instruction D, hereinabove set out, the court gave as plaintiff’s only verdict-directing instruction, the following based on M.A.I. 17.02 and 17.08:

INSTRUCTION NO. 2
“Your verdict must be for Plaintiff if you believe:
“First, defendant either:
failed to keep a careful lookout, or
failed to yield the right of way, and
“Second, defendant’s conduct, in any one or more of the respects submitted in paragraph First, was negligent, and
“Third, as a direct result of such negligence, plaintiff sustained damage.”

It is stated in connection with M.A.I. 17.02: “Where suit is against one of two or more joint tort-feasors, see 19.01.” In 19.01, it is stated: “When the verdict directing instruction directs a verdict against one of two or more joint tort-feasors, the ‘direct result’ language of Paragraph Third of verdict directing instructions such as 17.01 and 17.02 might be misleading.” Defendant argues that the refusal of Instruction D was not prejudicial in this case because the principle it stated (effect of combined negligence) was stated to the jury by plaintiff’s counsel in his argument before submission. However, the jury was not so directed by the court, and it is a familiar, well established principle that this Court will be more liberal in upholding the trial court’s action in sustaining a motion for new trial than in denying it. See cases in West’s Missouri Digest, Appeal and Error, “This is because the power of the trial court to grant a new trial is an exercise of its judicial discretion, which may be based upon matters known to the court (often said to be in the breast of the court) because the trial judge participated in the trial and knew what took place.” Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 300. In this case the trial court, from a direct observation of the trial, had the best opportunity to evaluate and determine the effect of its failure to instruct the jury that if both drivers were negligent defendant, if found to be negligent in the respects submitted, was liable if such negligence directly combined with the acts of the driver of the car in which plaintiff was riding to cause damage to plaintiff.

The order granting a new trial is affirmed and the cause remanded.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John William BUCKHANAN, Defendant-Appellant.
    No. 51552.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court on Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, James F. DeNeen, Special Asst. Atty. Gen., Joplin, for respondent.
    Lewis, Rice, Tucker, Allen & Chubb, Chas. Claflin Allen and J. L. Pierson, Clayton, for defendant-appellant.
   SEILER, Judge.

This appeal presents the question of whether there is sufficient evidence to support the conviction. By amended information based on Sec. 559.180, V.A.M.S., it was charged that defendant “ * * * upon one John Matosich, did make an assault; * * and of his malice aforethought, did strike and beat with his hands; the said John Ma-tosich, with the felonious intent the money of the said John Matosich * * * by force and violence and by putting * * * in fear of immediate injury to his person to rob, steal, take and carry away * * *” After a verdict of guilty by the jury and a finding by the court of prior convictions, the court sentenced defendant to fifteen years. Defendant was represented in the trial and on this appeal by appointed counsel.

The state’s case in chief was that defendant entered Matosich’s tavern in St. Louis about 8:15 p. m. and ordered a beer, taking a seat at the bar. Matosich was sitting at a table in the rear, reading a paper. The bartender was behind the bar. The porter, who had had several beers or drinks, was also sitting at the bar, three or four stools from defendant. Defendant made three or four trips to the rest room within 10 or 15 minutes. When defendant came out from his last trip, Matosich felt something in his back, some blunt object, something behind his back he could feel, although he did not see it or know what it was. At the same time defendant gave him a piece of paper or card, an inch and a half by three inches, bearing the words “Give me your money and nobody will be hurt.” Matosich asked what he wanted, said he did not have any money and defendant took the card. About this time the bartender pointed a gun at defendant. Matosich said defendant put his left arm around his neck, lifted him, which Matosich did not resist, and when he lifted him defendant “went in my pockets” and took a key case. Defendant started to shield himself with Matosich and moved toward the front door. The bartender ran and locked the front door. About the time defendant and Matosich passed the middle ■of the bar the porter seized from a nearby stove a container of scalding water and poured it on them. Both defendant and Matosich fell to the floor. Defendant was held there by the bartender and the porter. The porter testified he just happened to look toward the rear of the tavern and that is when defendant had Matosich by the neck, “like choking him,” and was going to Matosich’s right-hand pocket.

The bartender saw defendant slip the card under Matosich’s thumb and then pick up the card and put it in his pocket. The bartender said he then went to the back and warned defendant not to bother Mato-sich, that Matosich was reading the paper. He then saw the defendant put his left hand under Matosich’s chin with his right arm against Matosich’s back and stand him up. The bartender then went behind the bar to get a gun loaded with blanks and locked the front door. He observed defendant go through both of Matosich’s front pockets with his right hand. As the bartender turned around from locking the front door, defendant was using Matosich to guard himself, rushing him to the door, still holding him under the throat. That is when the bartender stepped in behind defendant and threw him to the floor. The bartender held defendant on the floor until the police arrived.

No one saw or found any weapon. The first officer to arrive promptly placed defendant under arrest and gave him “a thorough search to try to find a weapon,” but found none.

Defendant was searched a second time by the second police officer just before being put in the police cruiser. Again no weapon was found, but this time Matosich’s leather key case, containing from four to seven or eight keys was found in the right-hand coat pocket of defendant’s sport jacket.

The piece of paper or small card was not found on defendant or on the premises after the arrest or the following morning when the porter cleaned up.

Defendant’s account was that he went to the rest room only once, that he was sitting at the bar near the porter, who was “pretty well stewed”; that the porter took a newspaper away from him, whereupon defendant snatched it back and then the porter knocked him off the bar stool to the floor. About this time Matosich came up and defendant and Matosich were scuffling. This is when the defendant felt the hot water hit him and about the same time the bartender fired the pistol between defendant’s legs and grabbed his feet. Defendant denied having or handing Matosich a card, having a weapon, putting his hand around Mato-sich’s neck and his arm in the small of his back or trying to get Matosich to the doorway.

The state’s main instruction followed the language of the information, authorizing a finding of guilty of assault with intent to rob, with malice, if on the evidence, beyond a reasonable doubt they found defendant did “ * * * 0f his malice aforethought, in and upon one John Matosich make an assault, and * * * strike and beat with his hands the said John Matosich, with the felonious intent the money of the said John Matosich * * * by force and violence and by putting the said John Matosich in fear of immediate injury to his person, to rob, steal, take and carry away * * * ”

At one point the jury returned, saying they were divided 7 to 5 and were “having problems determining what makes up this assault charge.” The court gave another instruction, defining “assault” as “an intentional, unlawful offer of bodily injury to another by force, or force unlawfully directed toward person of another, under, such circumstances as create well founded fear of imminent peril, coupled with apparent present ability to execute attempt, if not prevented”; “strike” as meaning “to deal or aim a blow or stroke, as with the fist, a weapon, or a hammer; make an attack”; and “beat” as meaning to “act with violence, to dash or fall with force, to strike anything as rain, wind and waves do; to strike repeatedly.”

No instructions were given or requested with respect to any lesser included offenses, although on defendant’s testimony there was a fight or scuffle in which he participated.

A violent and aggravated assault with the fists may constitute a crime under Sec. 559.180, State v. Gillespie (Mo.Sup.) 336 S.W.2d 677, 680. Here there was an actual physical touching of Matosich by defendant with a certain element of force involved, sufficient to constitute an assault and battery, but there was nothing of any aggravated or violent nature. Matosich admitted he was not injured. There was no evidence that defendant struck or beat Matosich with his hands and no substantial evidence that any weapon was used. The police made two searches and found no weapon. None of the three occupants of the taverns saw or found any weapon on defendant or on the premises. The evidence shows that defendant had no opportunity to dispose of or hide a weapon. In State v. Rongey (Mo.Sup.) 231 S.W. 609, the charge was assault with intent to kill with malice. The information and the instruction set forth defendant’s having a large and heavy pair of shoes, with which he kicked and stamped the prosecuting witness about the head, face and body. The state’s evidence was that defendant struck the complainant with his fist, knocked him down and kicked him once in the ribs. The case was reversed and remanded, the court saying at 231 S.W. 1. c. 611:

“There was no evidence adduced at the trial which tended to show that defendant was wearing large and heavy shoes when the assault was made, nor is there any evidence in the record tending to show that appellant stamped and kicked Adami upon the head and face at all, much less with the alleged large and heavy shoes. The instruction is clearly erroneous, because it submitted issues to the jury without any evidence in the case upon which to base the same.”

State v. Ruddle (Mo.Sup.) 270 S.W. 105, was a case of felonious assault, under Sec. 3262, R.S.1919 (now Sec. 559.180). The information charged use of hands, fists and other means of force likely to produce great bodily harm and death, with felonious intent to kill. The evidence showed use of the fists, with kicking, all in the nature of an old-fashioned “thrashing.” There was no evidence as to the kind of shoes or that they were likely to produce death or great bodily harm. The medical evidence was that the victim had scratches, bruises and contusions-on the face, head and chest, but no serious injuries. The court held that there was no evidence authorizing submission of felonious assault.

In State v. Johnson, 318 Mo. 596, 300 S.W. 702, defendant was charged with assault, maliciously, with hands, feet and fists, upon his wife, in manner likely to produce death or great bodily harm. The evidence was that he slapped her on the face and head, striking her with his fist and stamping her in the side, while defendant was sitting-on the side of a boat and his wife lying in the bottom. The court reversed the conviction, saying there was no evidence as to-the amount of force used, nor what portion of her side was stamped, or what kind of shoes defendant had on his feet, or that he-had any shoes on. The court said the evidence fell far short of felonious assault.

In State v. Burkhart (Mo.App.) 34 S.W.2d 563, the court points out that the state having charged the assault to have been made by beating, which is equivalent to striking, the state would be required to show an assault by striking.

The state argues the charge of using the hands in the assault to strike and beat is merely surplusage. But as stated earlier the charge made is one of malicious assault by striking and beating, and the statute, Sec. 559.180, is directed against malicious assault with a deadly weapon or by any other means or force likely to produce-death or great bodily harm, with intent to rob or to attempt to commit any felony. The essence of the offense is an assault with a deadly weapon or by other means or force likely to produce death or great bodily harm. There is no evidence that defendant made a malicious and felonious assault and for this failure the cause must be reversed and remanded.

The state contends that defendant did not properly preserve in his motion for new trial the overruling of his motion for judgment of acquittal, but his assignment, “The Court erred in overruling the Motion for Judgment of Acquittal at the close of the State’s case,” is sufficient to preserve the question of the sufficiency of the evidence to sustain the conviction, State v. Mallory (Mo.Sup.) 336 S.W.2d 383, 384; State v. Meller (Mo.Sup.) 387 S.W.2d 515, 516.

The other points raised by defendant are not likely to occur again and there is no need to pass on them.

The judgment is reversed and the cause remanded.

All concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. George Davis YAGER, Appellant.
    No. 52437.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or for Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Norman A. Seiner, Special Asst. Atty. Gen., Clayton, for respondent.
    Norman S. London, St. Louis, for appellant.
   HENLEY, Judge.

Defendant was charged by information with burglary, second degree, and stealing. Sections 560.070 and 560.156, RSMo 1959, V.A.M.S. A jury found him guilty as charged and assessed his punishment at imprisonment for four years for burglary and four years for stealing. His motion for new trial was overruled and the court sentenced him in accordance with the verdict, the sentences to run consecutively. Defendant appeals. He was represented by court-appointed counsel in the trial court and is represented by other counsel in this court. His counsel has filed a brief and a reply brief and presented oral argument in defendant’s behalf.

Defendant does not question the sufficiency of the evidence. In the early morning of December 11, 1965, at about 12:50 A. M., Sergeant Don DeLaPorte and Officer Kenneth Foxall of the Hannibal Police Department were patrolling an alleyway in a police car at the rear of the Yates and Hagan Clothing Store in Hannibal when they saw a 1961 Oldsmobile parked alone just off the alley in a parking lot a short distance north of the clothing store. They stopped and Sergeant DeLaPorte looked in the Oldsmobile where he saw several bundle’s of men’s and boy’s suits, on hangers, on the back seat and floor. Being suspicious of these circumstances, Sergeant DeLaPorte went across the alley to check the rear door of the Yates and Hagan Clothing Store. He drew his revolver and, turning the door handle, discovered that the door was unlocked; at the same moment he heard a “scuffling” sound inside. As he opened the door he saw a man move toward the front of the store; the next instant he saw another man moving toward the front. Street lights in front of the store silhouetted the two men. As he moved toward the front of the store he heard the glass of the front door being broken and saw the two men go through the door, one going directly across Main street and the other disappearing in another direction. He followed them through the door in close pursuit and called to them to halt. Defendant, being directly across the street, stopped, and as he turned to face the officer he had a revolver in his right hand. The officer ordered him to drop the revolver and he did, throwing it into the gutter beside the walk. The officer ordered defendant to lay face down on the sidewalk with his hands above his head; in that position he was arrested, handcuffed and searched. Another officer took him to jail and Sergeant DeLaPorte, after picking up the revolver from the gutter and removing its cartridges, went back inside the clothing store. There he found fourteen or more bundles, each containing about ten suits on hangers, tied with a belt and piled on the floor and a table near the rear door of the store. Inside the office he found drawers of a desk standing open, invoices and other papers scattered about, a golf bag (not the property of the store) containing tools commonly used as burglar tools, and the store’s metal cash box, empty. The owners locked the store securely when it was closed for the day on December 10th; $215.00 had been left in the cash box on a shelf in the office at the close of business that day. Entry into the store was gained by cutting a hole through the roof. On search, the back seat and trunk of the parked Oldsmobile was found to contain seventy suits similarly bound in bundles, all belonging to and stolen from the store.

The first point briefed is that “Prejudicial error was committed * * * when * * * [the] police officers testified that * * * appellant refused to make a statement * * * ” while under arrest.

Defendant concedes that trial counsel made no objection to this testimony and did not assign this point as error in his motion for new trial. The point is not preserved for review. State v. Willis, Mo., 283 S.W.2d 534, 538[7]; State v. Brookshire, Mo., 353 S.W.2d 681, 685 [10]; Criminal Rule 27.20(a), V.A.M.R. However, defendant asks that we invoke and review the point under the “plain error rule,” Criminal Rule 27.20(c).

That small portion of the officers’ testimony quoted in defendant’s brief does appear to be prejudicial for its substance is, in effect, that defendant refused to make a statement while under arrest. The rule in this state is that the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make a statement. State v. Vainikos, Mo., 366 S.W.2d 423, 427 [4,5] and cases there cited. However, we have read the testimony of these officers and find that not only is the testimony quoted in his brief taken out of context, but, also, that defendant himself brought out this testimony first, during his cross-examination of the first witness, Sergeant DeLaPorte, and that he pointedly continued that same line of cross-examination with Officer Schutze. Furthermore, defense counsel during argument, called to the jury’s attention that defendant had refused to say anything in reply to the officers’ questions and his reasons for refusing. Considering all of the testimony of the officers, defendant’s cross-examination of the officers and this argument, we conclude that he purposely chose not to object to this testimony as a part of his trial strategy. In these circumstances, he is in no position to ask that we invoke the rule, and, for the reasons indicated, we decline to do so. State v. Worley, Mo., 353 S.W.2d 589, 596 [11]; State v. Meiers, Mo., 412 S.W.2d 478, 481 [5],

His next point is that the court erred in compelling state’s witness, Larry P. Harris, to invoke his constitutional privilege against self-incrimination in the presence of the jury.

Mr. Harris was called to the stand by the state. He stated his name in response to a question and then, on request of counsel for defendant, further proceedings were had outside the presence and hearing of the jury. A police officer, the last witness to testify before Mr. Harris took the stand, testified that he had talked to Larry P. Harris. An inference could be drawn from the officer’s testimony that Harris was the owner of the Oldsmobile found behind the Yates and Hagan Store loaded with bundles of suits. The record indicates, however, that Harris was not charged with this offense.

During the proceedings outside the presence of the jury separate counsel for Mr. Harris informed the court that he had advised his client to, and that Harris would, claim the protection of Article I, § 19, Constitution of Missouri, V.A.M.S., and refuse to answer any questions which might tend to incriminate him. Mr. Harris’ counsel further informed the court that he had advised counsel for the state previously that his client would refuse to testify for the reasons stated.

Counsel for defendant strongly objected to the witness being required to claim his privilege against self-incrimination in the presence of the jury for the reason that to do so, he says, would be highly prejudicial to defendant. For this reason, counsel requested that the court rule now, outside the presence of the jury, that Harris was not required to return to the witness stand and testify further in the presence of the jury. The court stated, in substance, that he would, of course, sustain an objection on that ground when the witness was asked a question the answer to which might tend to incriminate him; the court also indicated that it appeared probable that the witness would not be required to answer more than his name, age and address. The court took the position that there was no specific question to the witness, with this objection interposed, before the court for a ruling, and until such question was posed and proper objection made the court could not rule intelligently; that the proper time for objection on this ground is when the first question is asked that might tend to incriminate the witness. No questions were asked the witness during these proceedings and the jury was returned to the courtroom.

Mr. Harris returned to the witness stand and was asked three questions: his age, marital status, and his address; objections were made on the above-stated grounds and overruled, and the witness answered. Five more questions were asked, all concerning the title and ownership of the Oldsmobile found at the scene of the burglary. Objections to all were sustained.

As stated by the learned trial judge, no question had been asked the witness and no objection made (before or during the proceedings outside the hearing of the jury) that presented anything on which the court could rule. Until a question is asked and objection made nothing is presented requiring a ruling. Although the judge was informed of the general nature of the inquiry that was to be made, he was not required to anticipate the content, nature and form of a specific objectionable question that might be asked, and rule in a vacuum, so to speak. The court informed counsel how he would rule on a proper objection when a question was asked the answer to which might tend to incriminate the witness ; that is all the witness was entitled to; defendant could be entitled to no more.

But we do not rest this decision on the above reasons alone. In State v. Shepard, 334 Mo. 423, 67 S.W.2d 91, 95[8], the court held “The claim [of privilege against self-incrimination] could not be interposed for * * * [the witness] by the defendant; nor can the defendant object even though the court failed to accord the witness due constitutional immunity.” See also: State v. Ross, Mo., 371 S.W.2d 224, 228[5]. Since the defendant is in no position to object to the court requiring the witness to give testimony incriminating himself, it reasonably follows that he is in no position to complain where, as here, a proper objection at the proper time forestalled evidence which might tend to incriminate the witness. The court merely required the witness to claim the privilege when, and if, a specific objectionable question was asked; certainly, the defendant, against whom such witness is offered, cannot claim greater rights in this respect than the witness. The point is ruled against defendant. The cases from other jurisdictions cited by the state and defendant are not persuasive.

The third point briefed is in two parts: that the court erred (1) in admitting in evidence the revolver (and cartridges) Sergeant DeLaPorte saw defendant throw in the gutter, and (2) in admitting in evidence testimony that the serial number had been filed off the revolver. The second part of the point is not assigned as error in defendant’s motion for new trial and is not preserved for review.

Defendant contends that his possession of the revolver and cartridges was not an element of the offense of burglary and stealing and that these articles were not relevant or material to any issue in the case; therefore, their admission in evidence “ * * * was highly prejudicial to * * * [him] * * *,” because “The jury’s natural reaction to the introduction of a weapon has a tendency of prejudicing the jury against the accused without sufficient reason.” His objections at the trial, and the assignments in his motion for new trial, were on the ground that his possession of these articles was not an element of the offense charged; not, specifically and clearly with the particularity required, that they tended to prove another crime.

There can be no question about defendant having the loaded revolver in his possession in the store and while Sergeant DeLaPorte was following him in close pursuit through the broken front door and across Main street; the officer testified defendant had the revolver in his hand when he stopped and turned to face the officer, after DeLaPorte called for him to halt; in fact, defendant stated on direct examination that he had the revolver in his hand when the officer arrested him and that it looked “ * * * like a pretty terrible gun to have.”

From this evidence a jury reasonably could find that the revolver and cartridges were in defendant’s possession when he broke and entered the store, and such possession was some evidence that defendant had the intent to steal while in the store. The testimony that the revolver and cartridges were in defendant’s possession was relevant on the question of intent. These articles were certainly connected with the defendant, and were sufficiently connected with the crime charged and defendant’s attempt to escape from the scene thereof themselves to become relevant under the facts of this case. They were, therefore, properly admitted in evidence. State v. Lindner, Mo., 282 S.W.2d 547, 552 [8]; State v. Fritz, Mo., 379 S.W.2d 589, 590[4]; State v. Evans, Mo., 237 S.W.2d 149, 151 [1, 2]; State v. Russell, Mo., 324 S.W.2d 727, 731 [8],

In his last point defendant contends that the court erred in giving an instruction on the defense of alibi, because he did not request the instruction and the evidence offered by him “ * * * was not evidence of [an] alibi.”

Defendant says that there was no evidence to the effect that he was any place other than the vicinity of the Yates and Hagan Store at the time of the burglary; that this was not evidence of an alibi, but was merely a denial that he participated. He asserts that the instruction disparaged his defense; he seems to say that his defense was: present in the “vicinity,” but not participating in the crime. Defendant testified that he was sitting in a parked automobile somewhere on Main street in Hannibal at the time of the burglary; that some friends came by and told him to get out of the car and run; that he did, and ran some distance with these friends when the police officer stopped and arrested him across the street from the Yates and Hagan Clothing Store; that he had not been inside the store at any time that night. This evidence was, essentially, that at the time of the crime he was at another and different place than that at which it was committed.

We are of the opinion that had the court failed to give an alibi instruction, the defendant would be here contending that the court erred in that respect, and we have the further opinion that that contention would have some merit. The court did not err in giving an instruction on alibi. State v. Duncan, 336 Mo. 600, 80 S.W.2d 147, 152[11]. In State v. Bess, Mo., 387 S.W.2d 575, cited by defendant, the court held that the trial court did not err in refusing an alibi instruction in a robbery case, where the robbery was committed on a public sidewalk and defendant’s statement placed him at the scene of the crime during its commission. The Bess case is no authority for defendant’s contention that the court should not have given an alibi instruction.

Examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.

      . State v. Snyder, 244 Iowa 1244, 59 N.W.2d 223; State v. Dinsio, 176 Ohio St. 460, 200 N.E.2d 467.

      . De Gesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435; Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706; Vandegrift v. State, 237 Md. 305, 206 A.2d 250; State v. Dinsio, 176 Ohio St. 460, 200 N.E.2d 467; San Fratello v. United States (C.A.5th), 340 F.2d 560.


text:
    STATE of Missouri, Respondent, v. Robert McCRADY, Appellant.
    No. 52298.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward L. Downs, Special Asst. Atty. Gen., Cape Girardeau, for respondent.
    Floyd McBride, St. Louis, for appellant.
   HENLEY, Judge.

By amended information alleging three prior felony convictions defendant was charged with attempting to bribe a public official, a police officer of the City of St. Louis. Sections 558.080 and 558.010. Defendant admitted, and the court found, that he had been convicted of three prior felonies, sentenced and subsequently placed on probation therefor. A jury found him guilty as charged. The court assessed his punishment and sentenced him to imprisonment for two years. Sections 556.280 and 558.-€80. He was represented by counsel in the trial court, and is represented in this court by other counsel who has filed a brief in his "behalf.

There is no contention that the evidence is not sufficient to sustain the conviction; hence, a brief summary will suffice. On the evening of January 14, 1966, police officers Alfred Miller and Allen Montgomery of the Metropolitan St. Louis Police Department, in a marked police car, observed defendant, driving an Oldsmobile, violate a traffic law of the City of St. Louis; they followed defendant for about two blocks, and stopped and arrested him for the moving traffic violation. Officer Miller wrote out a summons and handed it to defendant; as defendant took the summons he dropped five dollars in the officer’s hand and said: ■“Here, Officer, tear up your copies of the tickets.” Whereupon, the officer returned the money and arrested defendant for attempting to bribe a police officer.

The first point briefed by defendant is that the court was without jurisdiction to try this case, and that all proceedings, including the judgment, are void, because the case was tried on an amended information without leave having been granted the state to amend.

An information charging defendant with the offense of attempting to bribe a public official was filed January 21, 1966; the amended information charging the same offense and alleging three prior felony convictions was filed February 23, five days before trial date, February 28, 1966. The record does not show that leave was sought or granted to file the amended information.

Criminal Rule 24.02, V.A.M.R., provides that the court may permit an information to be amended at any time before verdict if no additional or different offense is charged and if substantial rights of defendant are not prejudiced. See also: § 545.300.

Defendant made no objection to the filing of the amended information at any time; he announced ready for trial without objection. The sole effect of the amendment was to allege the prior felony convictions. He had notice of the amendment for, before any evidence was offered, he admitted its allegations that he had been convicted, sentenced and placed on probation for three prior felonies. No additional or different offense was charged by the amended information, and no rights of defendant are shown to have been prejudiced. State v. Crow, Mo., 388 S.W.2d 817, 820 [3]; State v. Kelly, Mo., 365 S.W.2d 602, 606 [10], Furthermore, it is presumed that the amended information was filed with-leave. State v. Colbart, Mo., 411 S.W.2d 92, 95 [6].

Defendant’s second point is that the court erred in failing to dismiss the amended information, because it was duplicitous in that it charged him with three separate crimes. The three “crimes” to which he has reference are: (1) violation of a traffic ordinance of the City of St. Louis, (2) attempting to bribe a public official, and (3) “* * * the crime of ‘three prior convictions * * *.’ ” The cases he cites holding that an information must apprise the defendant of the nature and cause of the accusation against him in plain, clear, distinct language stating the essential elements of the charge, and those cases holding that, subject to a few exceptions, separate, distinct offenses cannot be charged in the same count of an information without rendering it bad for duplicity, are not in point, because the information does not charge him with three separate crimes. The information charges him in plain, clear language with one offense: that of attempting to bribe the police officer by attempting to induce the officer to destroy the record of a summons issued defendant and thereby release him from arrest and a command to appear in court to answer to the charge of violation of a city ordinance.

The allegation in the information that defendant on a prior date: “* * * was duly convicted * * * sentenced * * * and * * * granted probation * * * ” in three felony cases does not constitute a charge of a separate, additional offense. State v. Stumph, Mo., 349 S.W.2d 954, 955 [5] ; State v. Crow, supra. The allegation in the information that the defendant drove his automobile in an unlawful manner in the city for which he was arrested by a duly appointed police officer in the performance of his authorized duties does not constitute a charge of a separate, additional offense of violation of the city traffic ordinance, a misdemeanor. The allegation that he drove his automobile in an unlawful manner is descriptive merely of the charge for which he was under arrest when he sought unlawfully to induce the officer to release him from that arrest by attempted bribery. The point is ruled against defendant.

His last point is that he was denied due process of law in that the court failed to “ * * * declare a mistrial or grant * * * a new trial” for “ * * * excessive and repetitious cross-examination * * * ” of defendant concerning his prior felony convictions. No objection was made by defendant at any point that his cross-examination had become excessive or that any portion of the examination was repetitious on this subject; nor was a request made that a mistrial be declared, for any reason. This point is not assigned as error in his motion for new trial. For these reasons the point is not preserved for review. State v. Willis, Mo., 283 S.W.2d 534, 538 [7]; State v. Martin, Mo., 411 S.W.2d 241.

Defendant asks that we consider this point as “plain error” under Criminal Rule 27.20(c), V.A.M.R. The record does not support his assertion that he underwent excessive or repetitious cross-examination on the subject of his prior felony convictions. Manifest injustice or miscarriage of justice has not resulted from his examination; therefore, we decline to invoke the plain error rule.

Examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.

      . All statutory references are to RSMo 1959 and V.A.M.S.

      . State v. McCloud, Mo.App., 313 S.W.2d 177; State v. Krebs, 336 Mo. 576, 80 S.W.2d 196.

      . State v. Mangiaracina, 344 Mo. 99, 125 S.W.2d 58; State v. Kellmann, 343 Mo. 762, 123 S.W.2d 70.