author: SIMEONE, Presiding Judge. McMILLIAN, Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary HOLLAND, Defendant-Appellant.
    No. 36221.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 1, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Application to Transfer Denied Sept. 8,1975.

      Charles D. Kitchin, Public Defender, John P. Bauer and James C. Jones, Asstf Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean and Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julius D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Gary Holland, was charged, tried and found guilty by a jury of forcible rape, and his punishment was fixed at four years. § 559.260 RSMo 1969, V.A. M.S. In accordance with the jury verdict, the court, after overruling a motion for new trial-and granting allocution, sentenced him to the department of corrections. He appeals. For reasons hereinafter stated, we affirm the judgment. This was the second trial of the cause. In the first trial held in November, 1973, the jury was unable to reach a verdict.

Since the appellant does not question the sufficiency of the evidence, only those facts which are necessary for the disposition of the points raised on appeal will be recited. A jury could reasonably find the following.

In the early morning hours of April 2, 1973, Mr. John Leach, Jr., a cook employed by the Sheraton-Jefferson Hotel located at 12th and Locust Streets in the City of St. Louis, worked late and stayed in room 374 of the hotel. At about 4:30 a. m. he rose to go to work. He left the key to the room on the hotel desk. The hotel has a large lobby, steps in the lobby leading to the mezzanine, and steps to the second and third floors. There were hallways and offices located on these floors and rooms on the third floor.

At about 1:30 on that afternoon, two young women, Kathryn King and Sandy Hutchinson, who worked at one of the local newspaper offices located on 12th Street, had finished lunch and were walking on the east side of the street, and north on 12th near the hotel. As they were walking, they saw a white girl and black young male walking south. They were “coming toward us.” The couple did not pass, because at the corner they crossed the street. The girl was “really held kind of closely, tight like,” around the waist. Quite a few people turned around to look. Kathy saw the couple at the door of the hotel, going into the hotel. Sandy made a comment about the man’s hairline — “for an Afro how high it was on the neck . . . .” Sandy saw the couple, and noticed that the man was holding her “[ejxtremely close.” She said something to the effect that it “looks like he had a gun on her or something. He was just so close to her that it is one thing to be in love, but he was just smothering her more or less.” The two girls didn’t do anything because “they could have had a lovers’ quarrel.” Sandy said that the man was tall, small built and young, had keen features and was medium brown. Later Sandy viewed some photographs and picked out the appellant.

The young woman the two girls saw was S_l M_S_, age nineteen and an employee of the same newspaper but not acquainted with Kathy and Sandy, had finished lunch and was returning to work at the paper. At about 1:20, when she was approaching Locust and 12th, she noticed “somebody walking real close behind me.” She did not look behind her. Between St. Charles and Washington, “[sjomebody came up behind me and grabbed me and told me not to scream, or be scared or they would kill me.” S_asked what he wanted, and he said “my money.” S_tried to give it to him, but he said “he didn’t want it here, not to say anything, or he would kill me.” At the time the man was holding her around the waist, holding her arm down, and with his other hand had something in her side. The man took her into the hotel. They went through the door, up the stairs, up some more stairs, entered a hallway, went to the third floor, “walked down the hall to a room and he got the key out and opened the door.” The man continued holding her.

On the second floor, Brenda Stabinsky, an employee of an advertising company with offices there, saw a Negro male and white woman come up from the mezzanine. No people, “other than are working on the executive floor are supposed to be on that floor . . . .” She saw the couple proceed to the third floor. The man was leading her; “he was holding her very, very tight . . . .” Sometime after the incident Brenda, having been shown some photographs, picked out the defendant.

The couple went into room 374. S— gave him money and told him to “leave me go.” ' The man grabbed her purse, pushed her by the window and told her to take her clothes off. “If I wouldn’t he would take them off for me.” “Then he came over to me and I still wouldn’t take them off, and he took what I learned was a nail file, and kept jabbing it in my throat, and told me to take my clothes off or he would kill me, he wasn’t kidding.” She did undress; he threw her on the bed and raped her. “I told him to get off me, he was hurting me . .” In answer to a question by the prosecutor — “Why did you tell him he was hurting you?” — she replied, “Because I had never had intercourse before.” This statement was objected to; the court sustained the objection and instructed the jury to disregard it, but denied a request for mistrial.

After the rape, the man took S_⅛ clothes and used them to tie her up and gag her. He took her watch and ring and left. She untied herself and called the security office on the phone. In the room during the episode, S_“really” saw the man. At trial, S— had no “question in [her] mind” that it was the defendant who raped her.

On cross-examination of S_, counsel for the defendant brought out certain discrepancies concerning the hotel and the room. In the first trial, for example, she testified that the man opened the doors to the hotel, although they are automatic; she testified before that there were two windows and in the second trial said there was one; in the first trial she said there were blinds on the window and now indicated there were drapes. On cross-examination she also stated that she viewed his body and the arms, and didn’t remember seeing or didn’t know there was a “tattoo” on his arm.

When S— made the phone call, the executive housekeeper, Jean Standley, and a security officer were having lunch in the hotel. The security officer received a call that a young lady was in trouble and “claims to have been raped.” The officer and Mrs. Standley went to room 374. They knocked, and S_told them she had been raped. She was very, very frightened. Mrs. Standley indicated that it would be a very rare occasion to permit a 15-year-old to rent a room.

The police were summoned, and S-told her story to Police Officer Clobes, describing the assailant as medium to “light complexioned,” in his late teens.

On April 11, 1973, several police officers went to the home of Gary Holland on Delmar, and he was arrested by Officer Robert Nichols. At the time of the arrest, and at the time of the lineup, Officer Nichols and other officers did not notice any initials on the defendant’s arm. The ring and watch were not recovered.

The defendant, a juvenile, was immediately taken to the juvenile court in accordance with law, and a lineup was held with several other young men. S_recognized the defendant as the man who raped her, and “picked him out of the lineup.” The persons in the lineup were dressed alike, “and all about the same height and age.”

A juvenile officer testified for the state. Either one or two days after the defendant was brought to the juvenile court, the juvenile officer noticed that “there were initials that appeared to be written in ink on his arm.” And at a later time, prior to his hearing in the juvenile court, there appeared to be “some fresh scratching in the area where the initials — .” He remembered two initials, but at trial there were four.

At trial, Dr. James Hurd testified that he examined S_ on April 2. There were some abnormal findings. “They consisted of a scraped area of the skin near the opening of the internal female sexual organ, and also there is a defect in the hymen.” There were also sperm cells.

As stated, the defendant was first tried in November, 1973, which resulted in a mistrial. On February 6, 1974, prior to the beginning of the second trial on March 25, the trial court held a hearing on the defendant’s motion to produce a transcript of the first trial. At the hearing, defense counsel admitted that he tried the previous case and heard the testimony of all the witnesses. The trial judge who heard the first case offered his ■ extensive notes, and stated if the witnesses “undertake to testify differently and you need to impeach them, then the court reporter will be made available to you for that purpose . . . .” The court noted that the defense had taken the deposition of S_and concluded, “They couldn’t have the transcript prepared even if they had money to pay for it within time — retrial of this case. No way they could do it. . . [I]f [the witnesses] make any substantial variance in their testimony that would prejudice your client . . . then the court reporter will be available for you . .” The court thereupon denied the motion to produce the transcript.

At trial, the defense called the court reporter at the first trial who read certain testimony of S_ showing the discrepancies as to the physical aspects of the hotel and hotel room, and as to the fact that she got a “good look at his arms.” The defense also called an attorney with the public defender’s office assigned to the juvenile court. He spoke to the defendant on April 12th and “noticed a tattoo located on his left arm,” but did not see any “scabs on his arm.”

In rebuttal, the juvenile officer was recalled who stated that there was “dry blood, or scratch marks” on the arm. In rebuttal, one of the officers who assisted in the arrest on April 11, testified that he did not notice any writing on defendant’s arms. Also in rebuttal, the state called, over the objection of the defendant, Judith Buekman and Lise LaForce who witnessed the lineup on April 11th. Each of them testified that she did not notice any “writing” on his arms.

Instructions were given, and the jury found the defendant guilty and assessed his punishment at four years.

On this appeal, appellant raises four points. He contends that the trial court erred (1) “in permitting the state to offer testimony concerning a lineup conducted while the defendant was still in the custody of the juvenile court”; (2) in denying the motion to produce' the transcript of the defendant’s first trial for the “reason that defendant was thus deprived of his right to adequate and effective confrontation and cross-examination of the state’s witnesses, equal protection of the laws and, effective assistance of counsel during his second trial”; (3) in refusing to grant a mistrial after the prosecutrix testified as to her “virginity” at the time of the act, and “to refuse to sustain an objection to the testimony of the examining physician as to the same subject because such testimony was immaterial and unnecessarily inflammatory”; and (4) in overruling defendant’s objections to the rebuttal testimony of Judith Buekman and Lise LaForce because such testimony was “irrelevant and prejudicial.”

We find none of the appellant’s points to be meritorious and conclude that the judgment of conviction should be affirmed.

As to the first point, appellant argues that § 211.271(3), RSMo 1969, V.A.M.S., prohibits the state from offering testimony in a criminal proceeding concerning a lineup conducted while the defendant was in the custody of the juvenile court. In particular, appellant contends that the failure of the trial court to suppress the lineup identification testimony of S_ was error in light of the statute. Relying on Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161, 164 (1961), appellant urges that unless juvenile and criminal proceedings are “clearly separated,” juvenile proceedings will “serve as an adjunct to and part of the adult criminal process,” thus destroying the juvenile court’s parens patriae relation to the child and “would violate the non-criminal philosophy,” which underlies the juvenile court act.

However, our Supreme Court has ruled that § 211.271 does not insulate a juvenile from appearing in a lineup, nor does it prohibit someone from testifying as to what he saw when he viewed a juvenile in a fair lineup. State v. Richardson, 495 S.W.2d 435 (Mo.banc 1973).

“We find no language in § 211.271 which expressly or by implication indicates that the General Assembly intended by that statute to prohibit someone testifying as to what they saw when they looked at a juvenile in a fair lineup. . To hold that § 211.271 insulates a juvenile from a lineup so long as he has not been discharged from custody of the juvenile court is to unnecessarily handicap proper police and juvenile officer investigation. Such a lineup does not equate with taking statements or confessions from the juvenile. No confidence is breached. The parens patriae philosophy is not violated. . . . ” 495 S.W.2d at 439.

Our Supreme Court reaffirmed its position later in State v. Thompson, 502 S.W.2d 359 (Mo.1973). In Thompson, appellant charged that the trial court erred in failing to suppress a lineup at the juvenile court because its results were admitted in a prosecution under the general law in violation of § 211.271. Rejecting this contention and citing Richardson, the court stated, “This, too, is no longer an open question in Missouri.” 502 S.W.2d at 363.

We therefore hold that the trial court did not err in failing to suppress the state’s evidence concerning the lineup conducted while appellant was still in the custody of the juvenile court.

Next, appellant contends that the court erred in denying his motion to produce the transcript of his first trial. He relies primarily on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).

In Britt, supra, petitioner was tried for murder. The first trial ended in a “hopeless deadlock.” A retrial was then scheduled for the following month. In the interim, petitioner filed a motion alleging he was-indigent and requested a free transcript of the first trial. ’ The North Carolina appeals court affirmed the denial of the motion, stating that the record did not reveal a sufficient need for the transcript. The Supreme Court of the United States granted certiorari. The court held that, while the principle of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585,100 L.Ed. 891 (1955), is applicablé, no violation of that rule has been shown “in the narrow circumstances of this case.” The court stated that “Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. .” (Emphasis added.) 404 U.S. at 227, 92 S.Ct. at 433.

There are two relevant factors, the court stated, to determine need: (1) the value of the transcript to the defendant and (2) the availability of alternative devices that would fulfill the same function as a transcript. As to value, the court agreed that there would be serious doubts of the North Carolina decision if it rested on the failure to specify “how the transcript might have been useful to him.” The cases recognize value to a defendant “without requiring a showing of need tailored to the facts of the particular case.” Value exists either as a discovery device in preparation for trial or for the impeachment of witnesses. The Supreme Court affirmed the denial of the transcript, because the North Carolina court rested its decision on the “availability of adequate alternatives to a transcript.” The second trial was before the same judge, with same counsel and the same court reporter, and the two trials were only a month apart. The trial court suggested that the memory of petitioner and his counsel should have furnished an adequate substitute for the transcript, and in addition the petitioner could have called the court reporter to read to the jury the testimony of the previous trial. While the court rejected the suggestion that counsel must keep exhaustive notes of the testimony at trial or have a perfect memory, during the oral argument on appeal, it “emerged” that the petitioner could have had the reporter read back to counsel his notes of the mistrial in advance of the second trial if “counsel had simply made an informal request.”

Appellant attempts to distinguish the case at bar from Britt v. North Carolina, supra, in several particulars to support his contention that he did not have adequate alternatives and therefore it was error to deny his motion for a free transcript. Defendant admits he had the same counsel who could have taken notes but that this is not a sufficient alternative. He cites Britt as stating that “[w]e have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. . . . ” 404 U.S. at 229, 92 S.Ct. at 434.

Under the circumstances of this case we hold that the trial court did not err in denying the motion for a transcript. There was no equal protection issue here. The trial court noted, “They couldn’t have the transcript prepared even if they had money to pay for it within time — retrial of this case.” And there were sufficient alternatives present. The trial court offered its notes; the trial court stated that if the witnesses testified differently the court reporter would be made available; the defense took S_⅛ deposition; the court reporter in the first trial was in fact made available to the defense — she testified for the defense — and counsel for the defendant brought out several inconsistencies of fact. We believe therefore that there were alternative available devices that fulfilled the function of a complete transcript. Hence, we hold that there was no error in denying the.motion. See State v. Ambus, 522 S.W. 2d 306, 310 (Mo.App.1975).

Appellant relies on United States ex rel. Wilson v. McMann, 408 F.2d 896 (2nd Cir.1969), and United States v. Young, 472 F.2d 628 (6th Cir.1972). In McMann, the court noted the whole case turned on the credibility of an undercover agent, and the court concluded that the transcript was an instrument needed to vindicate the defendant. Here, the transcript was requested for the purpose of attempting to impeach S_^_’s testimony concerning certain physical aspects of the room. In Young, the court noted that:

“The record does not reflect that the trial court made any reference to the availability of the court reporter to read back the testimony on the first trial until . . . almost three months after the conclusion of the second trial. . . .” United States v. Young, supra, 472 F.2d at 629.

Here the court reporter was available before and at the trial on March 25.

Appellant’s third point contains two separate allegations of error: (1) that the court erred in refusing to grant a mistrial after “the prosecutrix testified to her virginity” at the time of the act, and (2) that the court erred in refusing to sustain an objection to the testimony of Dr. Hurd “as to the same subject.”

As to the first, the court did not err in refusing to grant a mistrial. S_⅛ statement was objected to and the jury was instructed to disregard it. The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way. State v. Heather, 498 S.W.2d 300, 303 (Mo.App.1973); State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970). This is a matter which rests within the sound discretion of the trial court which is in the best position to judge the effect and the possibility of removal of any prejudice short of a mistrial. State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). Where, as here, the jury was instructed to disregard the statement, “. . . the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court. . . . ” State v. Dennison, 428 S.W.2d 573, 577 (Mo.1968). We cannot conclude that the trial court abused its discretion in overruling the motion for mistrial.

As to Dr. Hurd’s statement, there was no error in its admission. The defendant was charged with forcible rape in violation of § 559.260, RSMo 1969, V.A.M.S. The state was required to prove beyond a reasonable doubt all of the essential elements of the offense. State v. Bryant, 507 S.W.2d 672, 674 (Mo.App.1974). Dr. Hurd’s testimony was relevant to the issues of carnal knowledge and force.

Appellant argues that inasmuch as the fact of rape was not challenged and the question was one of mistaken identification, the evidence of S_ and Dr. Hurd was immaterial and unnecessarily inflammatory. To the contrary, the statements were material and relevant.

“To establish the crime of rape, the essential elements of carnal knowledge by force against the will of the woman must be shown,” State v. Garrett, 494 S.W.2d 336, 338 (Mo.1973), and the state cannot be unduly limited in its quantum of proof. State v. O’Toole, 520 S.W.2d 177, 181 (Mo.App.1975).

In People v. Stephens 310 N.E.2d 824, 830-831 (Ill.App.1974), it was stated:

“. . . Inasmuch as want of consent is a substantive issue in the State’s case, the prior chastity of the complaining witness is both material . . . and relevant. .
Nor are we of the opinion that evidence of prior chastity, elicited during the State’s case in chief, becomes immaterial when the defense is not consent but mistaken identification. It is true that prior chastity becomes immaterial when defendant, in its case, interposes the defense of mistaken identity; however, the State is not obligated to anticipate the avenue of defense and limit its proofs accordingly . . . .”

We find no error in admitting the testimony of S_or Dr. Hurd.

Lastly, appellant contends that the court erred in overruling the objections to the rebuttal testimony of Judith Buckman and Lise LaForce because such evidence was irrelevant and prejudicial.

The scope of rebuttal testimony is largely within the sound discretion of the trial court and unless the court abuses this discretion, or the defendant’s rights are prejudicially affected, the appellate court will not reverse. State v. Williams, 442 S.W.2d 61, 65 (Mo.banc 1968), overruled on other grounds, State v. Ayers, 470 S.W.2d 534, 538 (Mo.banc 1971).

The real issue in this case centered around the identification of the defendant as the assailant. A factual issue developed as to whether the rapist had a “tattoo” or some kind of writing on his left arm. S_ testified that she had a good view of the offender’s torso and his arms at the time of the incident on April 2, 1973, and that she did not remember seeing a “tattoo” on his left arm. The juvenile officer stated that he noticed a “tattoo” when he spoke with the defendant “one or two days” after April 11, 1973, the day the lineup was conducted. The attorney with the office of the public defender who represented indigents at the juvenile court, testifying on behalf of the defendant, stated that he interviewed defendant on April 12, 1973, and he observed the “tattoo” marks.

In rebuttal, the state presented Judith Marie Buckman and Lise LaForce, who testified over defendant’s objection that they observed defendant at a lineup at the juvenile court on April 11, 1973, and that they did not notice any writing on his arms. Appellant argues that this testimony was irrelevant, since it was not disputed that the appellant had “tattoos” [writing] on his arm when he was taken into custody. We disagree. The issue of the tattoo and when it was placed on appellant’s arm is a material issue affecting the accuracy of S-⅛ identification of the appellant as the assailant. S_did not remember seeing a tattoo on his left arm on April 2, 1973. At trial, however, appellant indeed had tattoo marks on his left arm. The attorney’s testimony that he noticed a “tattoo” on appellant’s arm on April 12, 1973, only ten days after the rape, suggests that the tattoo was also present on April 2, 1973, the date of the rape. Therefore, the testimony of Judith Marie Buckman and Lise LaForce that they did not notice any marks on defendant’s arm when they observed the defendant in the lineup on April 11,1973, was competent evidence tending to counteract and disprove the evidence offered by the defendant. State v. Peterson, 518 S.W.2d 1, 3 (Mo.1974).

Appellant further contends that the rebuttal testimony of Miss Buckman and Miss LaForce was unnecessarily prejudicial in that they were “alleged victims of other offenses allegedly committed by the defendant.” This contention is equally without merit. There is nothing in the record to indicate that the jury knew that they were alleged victims, nor do we believe, as defendant suggests, that the jury must necessarily infer that they were victims from the mere fact that they viewed defendant in a lineup. The reason for their presence at the lineup was not explored. We therefore find no error in the trial court’s refusal to sustain defendant’s objection to the rebuttal testimony.

We have read the complete transcript, the briefs of the parties, all of the authorities relied upon by the appellant, and we are convinced that no prejudicial error occurred, and that the judgment should be affirmed.

The judgment is affirmed.

GUNN, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge

(dissenting).

I respectfully dissent from that portion of my colleague’s opinion which upholds the right of the trial judge to deny a defendant a copy of the original transcript of the first proceedings. While it is true that there is here no equal protection issue, yet there is here an issue of fundamental fairness. The majority opinion bases its holding upon the questionable basis that the trial' judge’s notes and the availability of his court reporter serves the same principle as the original trial transcript. Alternatives, as is often the case, are deceptive. Every experienced trial judge and lawyer knows the impact of verified, sworn, written transcripts upon both juries and witnesses alike. And to say that unsworn, hurriedly scribbled judge’s notes and the use of a court reporters’ nondescript, unorganized testimony during a trial fulfills the same function of a completé transcript, to say the least, is naive.

The silent issue that was not addressed by the majority opinion is dramatized by the unsworn, unproven, self-fulfilling prophecy of the trial judge, “[T]hey couldn’t have the transcript prepared even if they had money to pay for it within time — retrial of this case.” Stated another way, the court was more interested in case movement than it was in the quality of the trial. Hopefully, the time will never come when we, as jurists, because of the pressure from overloaded trial calendars and dockets will sacrifice, for speed, the quality of justice that we attempt to dispense.

I would reverse and remand for a new trial.

      . § 211.271(3), RSMo 1969, provides:
      “After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or Criminal, other than proceedings under this chapter.”

      . Cf. In Interest of A.D.R., 515 S.W.2d 438 (Mo.banc 1974); State v. Wright, 515 S.W.2d 421 (Mo.banc 1974); State v. McMillian, 514 S.W.2d 528 (Mo.banc 1974); and State v. Ross, 516 S.W.2d 311 (Mo.App.1974).

      . S_did not use the word “virginity.” In answer to a question, “Why did you tell him he was hurting you?”, she replied, “Because I had never had intercourse before.”

      . Dr. Hurd testified that he found a “defect in the hymen.”


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent. v. James William HOYEL, etc., Defendant-Appellant.
    No. 36269.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 30, 1975.
    Motion for Rehearing or Transfer Denied March 10, 1976.

      Bell, Wilson, Harris & Kirksey, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

The thrust of defendant’s appeal from a conviction of assault with intent to kill without malice aforethought is that the trial court committed prejudicial error in permitting the introduction of certain rebuttal evidence at trial and refusing to grant a mistrial after an alleged hearsay statement was made by a witness. We find no prejudicial error and affirm the judgment of conviction.

Considering the evidence in the light most favorable to the jury verdict, it appears that on a Sunday afternoon Isaah Barnes, Jr. (“Little Isaah”) and his cousin, Floyd Hargrove, made a purchase of food at a barbecue stand in St. Louis. Some conversation ensued between Mr. Barnes, Floyd Hargrove, defendant and two or three of defendant’s companions. The substance of the conversations and whether they were bellicose is not clear from the record. According to Mr. Barnes and Floyd Hargrove, after the purchase of food had been made, they drove away from the barbecue stand followed by defendant and two or three of his companions in his automobile. When Mr. Barnes stopped at a traffic signal about two blocks from the barbecue stand, defendant’s car stopped behind him, sounding its horn. Mr. Barnes and his cousin left their automobile to investigate whatever was causing the problem with defendant and his passengers. As Mr. Barnes and Mr. Hargrove approached defendant, who was still in his automobile, defendant shot Mr. Barnes in the side and exited from the scene with celerity. Mr. Barnes and Floyd Hargrove positively identified defendant as the person who had shot Little Isaah. Defendant’s defense was that he had been with his ex-fiancé, Rosie Hicks, at the time of the incident. Defendant’s nephew testified that he (the nephew) was present at the time of the shooting; that it was defendant’s brother Lewis Hoyel — not defendant — who had shot Mr. Barnes; that defendant was not present at the shooting. Lewis Hoyel, defendant’s brother, was deceased at the time of trial.

Defendant did not testify, but his alibi defense was presented by others to the ef-feet that he was elsewhere at the time of the crime and with his ex-fianeé, Rosie Hicks. The defense first called Father Paul Schulte, pastor of St. Bridget of Erin Parish, who testified that on the date of the crime he had seen Rosie Hicks at church accompanied by a man. Father Schulte could not identify defendant as being the person with Ms. Hicks. Rosie Hicks then testified that she had been at Father Schulte’s church with defendant at the time Mr. Barnes was shot. In response to questioning on cross-examination, Ms. Hicks testified that she could not remember ever having been told by defendant that he was confined in Barnes Hospital in St. Louis on the date of the assault on Mr. Barnes. As its rebuttal, the State called Father Schulte who testified that defendant had told him and Rosie Hicks that “there wouldn’t be too much problem with the case because the day when this happened that there was records he [defendant] was in the hospital.” As further rebuttal, the State presented evidence from Barnes Hospital personnel that the hospital records had been altered to indicate that defendant was a patient in the hospital on the date Mr. Barnes was shot. A Barnes Hospital Security guard testified that over a year after the crime, he encountered the defendant in the hospital carrying his own hospital medical records which defendant refused to give up and with which he left the hospital.

Defendant alleges that the trial court erred in allowing the State to introduce as rebuttal evidence that the defendant had stolen and forged hospital records. The hospital records and testimony from hospital personnel concerning the forgery were admitted in rebuttal to establish that defendant attempted to create an alibi that he was in the hospital on the date of the shooting, although defendant did not, in fact, present such an alibi at trial. However, Rosie Hicks, in asserting defendant’s alibi that he was not present at the place of the crime but was, instead, with her, testified on cross-examination that she did not recall defendant’s stating that he was in the hospital on the date of the offense. But apparently — according to Father Schulte— defendant had asserted to both Father Schulte and Ms. Hicks that he had been hospitalized during the period of the attack on Mr. Barnes. The testimony on rebuttal of Father Schulte was to counter Rosie Hicks’ denial of the allegation by defendant that he was in the hospital at the time of the incident involving Mr. Barnes. The State then presented evidence of the hospital records alterations which would have put defendant in the hospital at the time of the crime.

We conclude that the evidence concerning the altering of the hospital records was properly allowed in the State’s rebuttal. Any competent testimony that tends to explain, counteract, repel or disprove evidence offered by a defendant may be used in rebuttal of the defendant’s testimony or evidence. State v. Williams, 442 S.W .2d 61 (Mo. banc 1968), overruled on other grounds, State v. Ayers, 470 S.W .2d 534 (Mo.banc 1971); State v. Kirk, 510 S.W.2d 196 (Mo.App.1974). The hospital records evidence does tend to disprove the alibi testimony of Rosie Hicks when her testimony is viewed in conjunction with the testimony of Father Schulte. Rosie Hicks testified during the defendant’s case that she was with defendant on the day of the crime and that she could not recall anything of his contentions that he was in the hospital at that time. Father Schulte’s testimony directly countered Ms. Hicks’ testimony. And the hospital records evidence supported Father Schulte’s testimony by showing an attempt to establish an alibi in direct conflict with that of Rosie Hicks. The State’s inquiry to cast doubt upon the credibility of defendant’s alibi as presented by Rosie Hicks was within legitimate bounds. State v. Kirksey, 528 S.W.2d 536 (Mo.App.1975); State v. Davis, 527 S.W.2d 32 (Mo.App. 1975).

The situation in this case is not unlike that in State v. Harvey, 449 S.W.2d 649 (Mo.1970). In Harvey, the defendant’s alibi was that he was out of the State at the time of the crime for which he was on trial. Although in his direct examination, the defendant made no mention of filing for a job application out of state, on cross-examination, defendant testified that he had made application for employment with the Nebraska State Employment Service. On rebuttal, the State was permitted to bring in records that no such application had been made. The rebuttal was held to be a proper attack on the credibility of defendant’s, alibi. So, too, do we believe that the rebuttal here was legitimate.

But there is another, perhaps stronger, reason why this evidence was properly admitted. Evidence to show that an accused has attempted to fabricate false evidence or destroy evidence is always admissible as showing consciousness of guilt. State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975); State v. Smith, 355 Mo. 59, 194 S.W.2d 905 (1946); State v. Mathews, 202 Mo. 143, 100 S.W. 420 (1907). Such evidence is admissible as evidence of one’s guilt of the principal facts charged. State v. Christian, 245 S.W.2d 895 (Mo.1952).

Further, the scope of rebuttal is within the sound discretion of the trial court and unless the court abuses its discretion or the defendant’s rights are prejudi-cially affected, the appellate court will not reverse even though the rebuttal testimony may not be proper rebuttal testimony. State v. Gamache, 519 S.W.2d 34 (Mo.App. 1975); State v. Bendickson, 498 S.W .2d 593 (Mo.App.1973). The fact that the challenged evidence could have or perhaps even should have been presented in the State’s case in chief does not require its preclusion in rebuttal. State y. Adams, 465 S.W.2d 536 (Mo.1971); State v. Feltrop, 343 S.W.2d 36 (Mo.1961); State v. Huffer, 424 S.W.2d 776 (Mo.App.1968). It is within the trial court’s broad discretion to allow evidence in chief to be introduced in rebuttal. State v. Huff, 454 S.W.2d 920 (Mo.1970); State v. Whipkey, 361 Mo. 1008, 238 S.W.2d 374 (1951). See § 546.070(3), RSMo.1969. We find that the trial court did not abuse its discretion in allowing the hospital record evidence to be used as rebuttal under the circumstances of this case.

Defendant also alludes to the fact that alteration of hospital records is a crime and that, generally, evidence of a crime other than that charged is inadmissible. We have already determined that the evidence concerning the hospital records was properly received for the reasons set forth, so we need not delve into defendant’s argument on this point. It is sufficient to point out that there was an apparent attempt to fabricate or destroy evidence by the alteration of hospital records in order to establish an alibi, albeit the alibi was not directly presented by the defendant. Defendant’s actions with the hospital records were intertwined with his efforts to establish his innocence, and evidence relating thereto was properly admitted. State v. Smith, 194 S.W.2d 905 (Mo.1946). In State v. Smith, supra, the defendant specifically argued that evidence showing an attempt to fabricate evidence was inadmissible as it was of another crime. However, the court held that such evidence was admissible under the general principle that an attempt to procure false evidence is “always admissible as showing consciousness of guilt,” 194 S.W.2d at 907. The fact is that the acts of defendant are sufficiently related to the crime charged so that they may be shown as evidence of his guilt. State v. Lunsford, 338 S.W.2d 868 (Mo.1960).

Defendant also alleges that the trial court erred in failing to grant a mistrial on the basis of a hearsay statement made by a State witness. In his direct examination Floyd Hargrove was asked the first time he learned of defendant’s name. Mr. Har-grove answered, “when she [defendant’s niece] said that he [defendant] did the shooting.” The trial court sustained defendant’s objection to the answer, ordered the answer stricken and ordered the jury to disregard it. But defendant argues that his motion for mistrial should have been granted as the statement was prejudicial hearsay. We affirm the trial court’s decision not to declare a mistrial.

It is within the trial court’s province to determine the prejudicial effect of a volunteered improper remark by a witness, State v. Johnson, 496 S.W.2d 852 (Mo.1973); State v. Brown, 463 S.W.2d 821 (Mo.1971), . as the trial court is in the best position to judge the effect of the remarks. State v. Camper, 391 S.W.2d 926 (Mo.1965); State v. Tomizoli, 519 S.W.2d 713 (Mo.App.1975). The granting of a mistrial is a drastic remedy which should be used only in extraordinary circumstances when the incident is so grievous that its prejudicial effect can be . removed in no other way. State v. Jackson, 506 S.W.2d 424 (Mo.1974); State v. Johnson, supra; State v. Pickens, 527 S.W.2d 29 (Mo.App.1975); State v. Blockton, 526 S.W.2d 915 (Mo.App.1975). And the role of an appellate court is to determine whether the trial court abused its discretion in refusing to grant a mistrial. State v. Jackson, supra; State v. Duncan, 499 S.W.2d 476 (Mo.1973); State v. Camper, supra. We find that the trial court did not abuse its discretion here.

Cases cited by defendant are not felicitous as they involved situations where hearsay was actually admitted in evidence. Here, the alleged hearsay was stricken from the record and the jury instructed to disregard it. The trial court’s action in this instance was sufficient.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . As Mr. Barnes was referred to by defendant’s counsel. The cognomen “Little Isaah” is an inappropriate appellation; Little Isaah is 6'5" tall and weighs 278 pounds as contrasted with defendant who is 5'6" and weighs 145 pounds.

      . Lewis Hoyel had been killed in a gun battle with police the day after Little Isaah had been shot.

      . The State does not concede that the answer given by Mr. Hargrove was hearsay but was competent evidence by extrajudicial statement. See State v. Maxwell, 502 S.W.2d 382, 391 (Mo.App.1973). But in view of our ruling we need not consider whether the statement was competent.

      . For example, in State v. Jackson, supra, it was held not to be an abuse of discretion to deny a mistrial where the wife of the victim while on the witness stand spontaneously cried out, “Oh God! Why did you have to kill him? You didn’t have to kill him!”


author: SMITH, Chief Judge.

text:
    Timothy Daniel O’DONNELL and Nina Hofstetter, Appellants, v. GENERAL MOTORS CORPORATION et al., Respondents.
    No. 36175.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 8, 1976.
    Rehearing Denied March 10, 1976.

      Elmer C. Oberhellmann, St. Louis, for appellants.
    Kortenhof & Ely, Joseph M. Kortenhof, William W. Evans, George E. Lee, St. Louis, for respondents.
   SMITH, Chief Judge.

Plaintiffs appeal from an adverse judgment based upon a jury verdict in a products liability case. Plaintiff O’Donnell was seriously injured in a one car accident in which he was the driver. The litigation turned upon whether the rear axle on the car was defective and broke causing the accident or whether the accident first occurred breaking the axle. O’Donnell was 16 at the time of the accident in 1965. Plaintiff Hofstetter is his mother. Defendant General Motors manufactured the automobile; defendant Milner Chevrolet was the original retail dealer; defendant Kiburz was the used car dealer from whom O’Donnell acquired the vehicle (through an adult straw party). The automobile was a 1961 Corvair with 53,000 miles of use at the time of the accident.

Plaintiffs raise five points of alleged error. Defendants contend that no submissi-ble case was made. Finding no prejudicial error properly preserved we need not rule defendants’ contention.

Plaintiffs first contend that the Court erred in permitting one of the defense attorneys to inquire whether O’Donnell had his seat belt fastened at the time of the accident. Plaintiffs have failed to preserve this point for two reasons. First, no proper objection was made to it at the time of the question. Counsel here elected to utilize an objection to argue to the jury rather than to present legal reasons for the objection to the judge. Such an objection does not call to the court’s attention the reason why the question is improper and preserves nothing for review. Galloway v. Galloway, 169 S.W.2d 883[1—6] (Mo.1943). Secondly, plaintiffs submitted a withdrawal instruction on the issue, the court agreed to give it and all three defense counsel agreed it could be given. Plaintiffs’ attorney then withdrew the withdrawal instruction and asked that it not be given. The language in Kirst v. Clarkson Construction Company, 395 S.W.2d 487[20-22] (Mo.App.1965) is clearly applicable here:

“. . . [I]t has long been the rule that, save in exceptional circumstances, it is sufficient to direct the jury to disregard evidence improperly admitted, the presumption being that the jury followed the court’s direction; and some of the cases suggest that this rule is particularly applicable where, as in the instant action, there has been no motion for a mistrial on account of the objectionable evidence.”

We find no exceptional circumstances here. The court offered plaintiffs the only relief they sought and they then withdrew the request for relief. They cannot now complain. See Olsten v. Susman, 391 S.W.2d 328[3-6] (Mo.1965); Ragsdale v. Young, 215 S.W.2d 514[5] (Mo.App.1948).

Plaintiff’s second contention is that the Court erred in sustaining an objection to plaintiffs’ use of an allegedly authoritative test in cross-examining an expert witness of defendant. Counsel asked the expert if he was “familiar with the book, The Fatigue of Metals and Structure, put out by the United States Government.”

The witness answered negatively and counsel then asked if “you disagree with this statement—” at which time objection was interposed and sustained. No offer of proof was made nor was any attempt made to identify the book counsel held in his hand. The statement of plaintiffs’ attorney that what was in his hand was the government text does not prove itself nor constitute evidence. Kettler v. Hampton, 365 S.W.2d 518[11, 12] (Mo.1963); Landers v. Smith, 379 S.W.2d 884[4] (Mo.App.1964). We find no error.

Plaintiffs’ third contention is that the Court erred in allowing defense counsel to read plaintiffs’ answers to interrogatories into the record to show that an eyewitness to the accident surfaced immediately prior to trial. No objection was made at the time the answers were read and we do not find any plain error. The matter is hot preserved for review.

Plaintiffs’ fourth contention is that the Court erred in permitting defense counsel to comment on plaintiffs’ failure to obtain the services of a lawyer until six years after the accident. Simply stated defense counsel did not do that. The matter of when counsel was obtained was raised by plaintiffs during direct examination of plaintiff O’Donnell. The statements of defense counsel to which plaintiffs allude dealt only with the difficulties of obtaining evidence when defendants first learned of the claim six years after the accident. We find no error.

Plaintiffs’ last contention is that the Court erred in refusing to permit plaintiffs to recall an expert witness in rebuttal. The evidence sought to be produced at that time was available to plaintiffs during their case in chief and was proper and should have been offered in the case in chief. It is within the trial court’s discretion whether to allow rebuttal evidence in such circumstances. Bean v. Riddle, 423 S.W.2d 709[5][7] (Mo.1968). We find no abuse of that discretion here.

Judgment affirmed.

CLEMENS, J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . The objection was: “I’ll object to that, Your Honor. He couldn’t presume that an axle is going to break and he’s going to be thrown from the car paralyzing him for the rest of his life.”


author: McMILLIAN, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Plaintiff-Appellant, v. Cecil C. ROUSSIN, et al., Exceptions of R. Lemoyn Hensley and Helen Hensley, Ms wife, Defendants-Respondents.
    No. 36480.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 3, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.

      Dearing, Richeson, Roberts & Wegmann, J. Richard Roberts, Hillsboro, for plaintiff-appellant.
    Earl R. Blackwell, Hillsboro, for defendants-respondents.
   McMILLIAN, Justice.

Plaintiff, Southwestern Bell Telephone, appeals from a judgment entered on a jury verdict, awarding defendants $8,775.00 damages for the taking of an easement across defendants’ land for the purpose of installing an underground communications systems. We affirm.

Plaintiff petitioned the court on July 11, 1968, requesting a right-of-way and easement to construct, operate, maintain, inspect and remove an underground communications system consisting of underground cables, wires, conduits, surface testing terminals, markers and other necessary appurtenances, under a strip of land one rod in width, across defendants’ property. As provided by the applicable Supreme Court Rules, defendants, upon filing of the commissioner’s report, filed written exceptions and prayed that the issue of damages be submitted to a jury.

Plaintiff filed a pretrial motion for specific performance of a settlement agreement alleging that the parties had come to an oral agreement on the issue of damages in December of 1972, but that defendants later refused to honor the agreement. Plaintiff adduced evidence of the following facts: (1) the respective attorneys had conducted oral negotiations in mid-December, 1972; (2) Mr. Richeson (attorney for plaintiff) had made an offer of $500.00 over and above the commissioner’s award of $500.00; (3) Mr. Blackwell (attorney for defendants) had telephoned Mr. Richeson on December 15,1972, to inform him that defendants had accepted the offer; (4) in reliance thereon plaintiff paid the agreed sum into the circuit court registry, advising the clerk that the case had been settled; (5) Mr. Richeson sent a withdrawal of exceptions to Mr. Blackwell for execution by defendants; and (6) on January 13, 1972, Mr. Richeson received a letter from Mr. Blackwell advising him that defendants refused to accept the settlement. In response, defendants submitted an affidavit executed by Mr. Blackwell stating that he did not have authority to accept the settlement offer on the occasion in question. The trial court overruled plaintiff’s motion and the case proceeded to trial.

At trial, defendants presented two expert witnesses to testify to the amount of damages sustained as a result of the taking by plaintiff.

These witnesses testified that the highest and best use for defendants’ property was either industrial or residential development and accordingly set the amount of damages at $7,875.00 and $13,500.00. Defendant, R. Lemoyn Hensley, testified that he estimated damages to be $15,750.00. Expert witnesses on behalf of plaintiff testified that farming was the highest and best use of defendants’ property and estimated damages to be $250.00 to $300.00, $300.00 to $400.00, and $200.00

The jury returned a verdict for $8,775.00. The trial court entered judgment for defendants in accordance with the verdict together with costs. Plaintiff thereupon filed a motion to compel settlement agreed upon or in the alternative motion for new trial. Both motions were overruled after defense counsel testified and was cross-examined and again denied that he had authority to settle the case.

First, plaintiff argues that since the record reveals that an authorized offer was made by plaintiff’s attorney to defendants’ attorney to settle the case for the sum of $1,000 to be paid to defendants by Bell and since defendants’ attorney indicated on December 15, 1972, in response to this offer that “[y]ou [plaintiff’s attorney] can call the clerk and pass it [the case] for settlement,” that there was a valid and binding settlement reached between the two parties to this action which the trial court should have enforced upon plaintiff’s motion. As plaintiff points out in its brief, the general rule is that a valid settlement agreement may be enforced by the courts. Wenneker v. Frager, 448 S.W.2d 932 (Mo.App.1969); 15A C.J.S. Compromise and Settlement § 48; 15 Am.Jur.2d, Compromise and Settlement, § 25. The case cited deals with a settlement reached in open court; however, valid contracts of compromise and settlement or release reached prior to trial are equally enforceable. Stahly Cartage Co. v. State Farm Mut. Ins. Co., 475 S.W.2d 438, 441 (Mo.App.1971).

The law in Missouri does not clearly establish a precise method for enforcing settlement agreements; but Wenneker v. Frager, supra, at 936, states that the existence of a settlement agreement reached in court during the trial of the cause settled may be raised by motion. Plaintiff in the present case sought enforcement of a settlement by raising the question first in a pretrial motion. This appears to have been the proper method of seeking enforcement of the agreement under the circumstances of the instant case. There is authority which indicates that a settlement or release is an affirmative defense, Jenkins v. Simmons, 472 S.W.2d 417, 420[1] (Mo.1971), and that as such it must be raised by pleading. Rules 55.08 and 55.27 and Wechsler v. Davis, 209 Mo.App. 570, 239 S.W. 554, 557[7] (1922). This rule, however, would riot seem applicable in the present case owing to the posture of the condemnation proceeding involved. In the present case the settlement came after all required pleadings had been filed and thus there was no required responsive pleading in which plaintiff could have raised the settlement question. Under these circumstances Rule 55.27, by implication, permits the defense of settlement to be raised by motion. Since the settlement in question came after the condemnation proceeding was commenced and all required pleadings had been filed by the parties, the rule of Wenneker, supra, which permits the settlement of a case which is in progress to be enforced upon a motion, applies here.

The next question is whether the settlement agreement relied on by plaintiff in the present case is valid and enforceable. If the agreement is enforceable, then the trial court erred in overruling plaintiff’s two motions seeking enforcement, one of which was filed before the trial of defendant’s exception and the other of which was filed after the trial in conjunction with plaintiff’s motion for a new trial. The issue presented in these motions is whether defendants’ attorney had authority to reach a settlement with plaintiff. There is no dispute that he represented that he had such authority and that he did reach an agreement with plaintiff’s counsel to settle. This fact is admitted by defendants’ counsel. Under 'these circumstances it was incumbent upon defendants to prove to the trial court that their attorney lacked authority to settle the case, since his act of settling with plaintiff is presumed prima facie to be authorized. Kahn v. Brunswick-Balke-Col-lender Co., 156 S.W.2d 40, 43[9] (Mo.App. 1941). See also 30 A.L.R.2d 953-954.

Assuming that plaintiff made a prima facie case, the question then becomes whether the uncorroborated testimony of defendants’ attorney that he did not have authority to settle the case is sufficient to overcome the presumption of authority. Under Missouri law, the attorney-client relationship is an agency relationship governed by the same rules which apply to other agencies. Qualls v. Field Enterprises Ed. Corp., 302 F.Supp. 152 (D.Mo.1969); State ex rel. AMT v. Weinstein, 411 S.W.2d 267 (Mo.App.1967). While it is the general rule that neither the fact nor scope of agency can be established by the extrajudicial statements, declarations or admissions of the alleged agent, this rule does not extend to the sworn testimony of an alleged agent. Case law recognizes that an agent may testify both as to the fact and as to the nature and extent of his authority, where it rests in parol. Fielder v. Production Credit Asso., 429 S.W.2d 307[1] (Mo.App.1968); 3 Am.Jur.2d, Agency, §§ 353, 354; I Mechem, Agency, §§ 285, 291 (2d Ed. 1914).

This general rule has been specifically applied to questions of authority arising out of the attorney-client relationship. II Me-chem, Agency, §§ 2154, 2155 (2d Ed. 1914). The early case of Anderson v. McPike, 86 Mo. 293, 301 (Mo.1885) is closely analogous to the question at issue here. In this case the plaintiff sought to use the original answer of the defendant, signed by an attorney, as evidence against him. The attorney, whose name was signed to the answer, testified that the defendant had not employed him in the cause. The Supreme Court ruled that his testimony was sufficient to overcome the presumption of authority arising from his name being signed as the defendant’s attorney and prevent the admission of the answer as evidence.

Plaintiff’s evidence in connection with both motions to enforce the settlement tended only to show what has been admitted by defendant’s counsel, that is, that defendants’ counsel represented that he had authority to settle the case and did, in fact, reach a settlement agreement with plaintiff’s counsel. Defendants’ evidence on the first motion consisted of the affidavit of their attorney and his sworn statement that he had no authority to settle. At the hearing on plaintiff’s second (post-trial) motion to enforce the settlement, defense counsel testified to the same facts which he had set before the court on the previous motion and he was then cross-examined by plaintiff’s counsel. Plaintiff offered no evidence on either of these motions, other than the statements and actions of defense counsel, tending to show that defense counsel had authority from his clients to settle the case.

Under the present circumstances the trial court acted correctly in overruling plaintiff’s motions to enforce the settlement agreement made by defense counsel. An attorney’s apparent authority is limited to matters of procedure or remedy and does not extend to the subject matter of the cause of action. 7 CJ.S. Attorney and Client § 80. An attorney cannot, without express authority, bind his client to accept such a settlement which surrenders a “substantial right.” Sudekum v. Fasnacht’s Estate, 236 Mo.App. 455, 157 S.W.2d 264 (1942). It clearly appears that defense counsel had no express authority to settle this case. Neither the fact of his employment nor his own representations are sufficient to establish his authority. Aetna Gas. & Sur. Co. v. Traders Nat. Bank & Trust Co., 514 S.W.2d 860, 866[9, 11] (Mo.App. 1974). Since these are the only indicia of authority available, we must conclude that the settlement was unauthorized. Defense counsel’s uncontroverted testimony that his clients did not give him authority to settle the case is sufficient to meet defendants’

burden of proving lack of authority. There are no special circumstances presented in this case, such as an emergency requiring settlement by the attorney or ratification by the client, which would make the aforementioned general principles of law inapplicable. Therefore, the settlement agreement was not binding on defendants.

Plaintiff’s final point is an allegation of error in giving and reading to the jury M.A.I. 9.02 on damages. That instruction reads as follows:

“You must award defendant such sum as you believe is (was) the difference between the fair market value of defendant’s whole property immediately before the taking and the value of defendant’s remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which plaintiff has the right to make of the property taken.”

Plaintiff contends that the use of the word “remaining” in M.A.I. 9.02 is improper in this case because it directs the jury not to consider the fact that defendants can still use their property for farming as they did prior to the “taking” by plaintiff. According to plaintiff, M.A.I. 9.02 should have been modified as provided by the illustration in M.A.I. 35.10, p. 424, to omit the word “remaining.” This argument is without merit. The reason for the modification of M.A.I. 9.02 shown in the illustration is to prevent the use of the very argument which plaintiff is employing in this case, that is, that no “taking” results from the granting of an underground easement. The modification proffered by plaintiff is intended for the benefit of the person whose property is being taken because “a jury might not understand that property was ‘taken’ when defendants still retained possession of the surface.” See Committee’s Comment to M.A.I. 35.10, p. 425. That a “taking” does result in the present situation is settled. Southwestern Bell Telephone Company v. Webb, 393 S.W.2d 117, 121 (Mo.App.1965). It follows that when something is taken from a whole, something less than the whole is remaining and thus the use of the word “remaining” could not have worked to the prejudice of plaintiff. On the contrary, plaintiff stood to benefit from the use of M.A.I. 9.02 in its original form if it could convince the jury that nothing was taken from defendants. Since the jury was apparently not misled there is no need to interfere with the verdict, particularly not at the behest of the party who stood to benefit. Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. Banc 1972).

Upon considering the points raised by plaintiff, we find no error and thus affirm the judgment of the trial court.

Judgmént affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . Rules 86.01 et seq. .

      . A release has been held to be the same as a contract of compromise and settlement. Stahly Cartage Co. v. State Farm Mut. Ins. Co., 475 S.W.2d 438 (Mo.App.1971).

      . Plaintiff objected to this affidavit and no ruling was ever made. However, the trial court has authority to consider such evidence on a motion. Rule 55.28. In any event, there is other evidence to the same effect.


author: PER CURIAM:

text:
    Harry Don PHELPS and Melba Phelps, Plaintiffs-Appéllants, v. Danny Ray PARKER, Defendant-Respondent.
    No. 10058.
    Missouri Court of Appeals, Springfield District.
    Feb. 23, 1976.
    Michael D. Talley, Thomas & Talley, Joplin, for plaintiffs-appellants.

      Karl W. Blanchard, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.
   PER CURIAM:

The transcript filed herein, as confirmed by a certified copy thereof supplied at our request, shows a purported judgment as set forth in the appendix to this opinion.

“Judgment” is defined as “the final determination of the rights of the parties in the action” (Rule 74.01, V.A.M.R.), and it is settled that a final judgment “must purport to be the actual and absolute sentence of the law, as distinguished from a mere finding that one of the parties is entitled to a judgment.” 1 Black on Judgments (2d Ed.), § 3, at p. 8. There is a clear distinction between a verdict and a judgment; a verdict is the jury’s finding on the facts, whereas a judgment is a judicial action of the court. 46 Am.Jur.2d, Judgments, § 4, pp. 315-316, and § 8, at p. 317. A verdict is not a judgment (49 C.J.S. Judgments § 4, at p. 28) and has no finality until a judgment thereon has been entered. Moore v. Standard Life and Accident Insurance Co., 504 S.W.2d 373, 375[6] (Tenn.App. 1972). Since the jury’s verdict does not constitute a judgment [G. Amsinck & Co. v. Springfield Grocer Co., 7 F.2d 855, 858 (8th Cir. 1925)], it cannot be transformed into a judgment by the simple process of being so labeled by the clerk, the court reporter or the plaintiffs in their notice of appeal. Williams v. Williams, 480 S.W.2d 525, 527 (Mo. App.1972).

No judgment having been rendered or entered on the verdict in favor of defendant on plaintiffs’ claims and in favor of plaintiff Harry Don Phelps on defendant’s counterclaim, we have no jurisdiction of this premature appeal and it is dismissed. Peacock v. City of Dexter, 530 S.W.2d 272 (Mo.App.1975).

It is so ordered.

All concur.

APPENDIX

Judgment

Now on this day this cause comes on for further hearing; the Plaintiffs appear again by Thomas and Talley, their attorneys, and the Defendant appears again by Blanchard, Van Fleet, Martin, Robertson & Dermott, his attorneys, and come again the following jurors heretofore empaneled, sworn and charged to try this cause to-wit: 1. Linda Houston; 2. James E. Widener; 3. Charles Woody; 4. Boyd D. Call; 5. Mona McGaw; 6. Oral D. Rose; 7. John Lizotte; 8. Harry H. Weber; 9. William H. Kerr, Jr.; 10. James R. Williams; 11. Charles L. Summers; 12. Theodore M. Johns, and the trial of this cause is resumed, and the Jury having heard a part of the evidence. At the close of Plaintiffs’ evidence, the Defendant files a motion for a directed verdict and after being duly considered by the Court, said motion is overruled. Defendant puts on rebuttal. Defendant presents evidence, and at the close of Defendant’s and Plaintiffs’ evidence the Defendant files motion for a directed verdict and after being duly considered by the Court, said motion is overruled. At the close of all evidence, the Plaintiffs files [sic] a motion for a directed verdict as to the Defendant’s Counter-claim and after being duly considered by the Court, said motion is overruled. After hearing the arguments of counsel and receiving the instructions of the Court, the Jury retires in charge of the Sheriff to consider of their verdict. After due deliberation, the Jury returns into Court the following verdict, to-wit:

We, the jury, find the issues in favor of the Defendant on Plaintiffs’ claims and in favor of the Plaintiff Harry Don Phelps on Defendant’s counter-claim.
/s/ Charles Woody
Foreman


author: CLEMENS, Presiding Judge.

text:
    CITY OF BALLWIN, Respondent, v. James S. COLLINS, II, Appellant.
    No. 36692.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 24, 1976.
    James S. Collins, II, pro se.
    G. Richard Fox, Ballwin, for respondent.
   CLEMENS, Presiding Judge.

The City of Ballwin charged defendant with speeding, driving 50 miles per hour in a 40 miles per hour zone. On defendant’s appeal to the Circuit Court, he was found guilty and fined $10 and costs. On this appeal, defendant challenges the evidence concerning a radar gun used to determine his speed, contending it was inadmissible since the radar gun’s accuracy was not shown by first establishing the accuracy of any of the devices used to test the radar gun.

Officer Townsend testified he used the radar gun after letting it warm up for three or four seconds before testing it. He stated he tested the machine by means of its “internal calibration equipment,” not described in the record. The officer then tested the radar with a tuning fork. Following that he had Officer Kirk drive a car through the radar gun’s range. In the officers’ opinion, all three tests indicated the radar gun was operating accurately, but there was no showing of accuracy of any of the three “measuring devices” used to check the radar gun.

We endorse the statement in State v. Graham, 322 S.W.2d 188[18] (Mo.App.1959), that the value of any test of radar speedmeter depends upon the accuracy of the measuring device against which it is cheeked. We also share the opinion in City of St. Louis v. Boecker, 370 S.W.2d 731[3] (Mo.App.1963) that the particular measuring device must itself be shown accurate before the radar evidence is admissible. Here, Officer Townsend made what plaintiff contends were three different tests of the radar’s accuracy. However, not one of the three tests — the internal calibration equipment, the tuning fork or Officer Kirk’s patrol car speedometer — was itself tested for accuracy.

The conclusions to be drawn from the three radar speeding cases in Missouri, State v. Graham, supra, City of St. Louis v. Boecker, supra, and Kansas City v. Hill, 442 S.W.2d 89 (Mo.App.1969), are that the accuracy of a measuring device must be sufficiently shown before the radar reading is considered accurate. Kansas City v. Hill, supra, requires the existence of a dual test before a court can accept radar speedmeter evidence.

Here there is only one test of the radar device’s accuracy in evidence. The tuning fork, when struck in front of the radar gun, caused the device to register 65 miles per hour but the accuracy of the tuning fork was not shown. There would have to be a second test before the trial court could accept the accuracy of the radar gun. We do not find a second test in the record.

Although it is stipulated the internal calibration equipment was activated, registering 40 miles per hour on the radar gun, we are not told whether this reading was accurate. We have no foundation on which to base an assumption that the internal calibration equipment demonstrated the radar was working properly.

Officer Townsend, operating the radar gun, stated the gun registered 40 miles per hour on a drive-through test by Officer Kirk in his patrol car. Officer Townsend testified Officer Kirk radioed he was traveling at 40 miles per hour as he passed the gun. Officer Kirk recalls driving past the radar gun at 35 or 40 miles per hour, but the car’s speedometer was not shown to be accurate, nor was it compared with either of the other testing devices. The proponent of the radar evidence has the burden of proof as to its accuracy. City of St. Louis v. Boecker, supra [2]. We think the evidence on these two tests equivocal at best. Plaintiff has failed in its burden. The present case contains no other evidence as to the speed defendant was traveling besides the inadequately tested radar reading of 50 miles per hour. Here, unlike State v. Graham, supra, there was no observation by an experienced traffic police officer that defendant was exceeding the speed limit, nor admission by defendant that he had been speeding. Officer Townsend could not testify as to any personal knowledge of the accuracy of any one of the three measuring devices, as did the arresting officer in Kansas City v. Hill, supra.

Without evidence of the accuracy of any one of the measuring devices or any independent observation of the speed of defendant’s car, the plaintiff has failed to meet its burden of proof.

Judgment reversed.

KELLY and STEWART, JJ., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth George KRAMER, Defendant-Appellant.
    No. 36740.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 24, 1976.

      George E. Sullivan, 0’Fallon, for defendant-appellant.
    James G. Gregory, Montgomery City, John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

Defendant was convicted by a jury of stealing property of the value of over $50.00. Sections 560.156; 560.161 RSMo 1969. The jury was unable to agree on punishment and the defendant was sentenced by the court to two years imprisonment. Defendant appeals.

Defendant raises two contentions on appeal. (1) The trial court erred in not sustaining his motion for acquittal at the close of the State’s case because the evidence was insufficient to support a circumstantial evidence conviction. (2) “The trial court erred in submitting the case to the jury because as a matter of law a satisfactory explanation of the possession of alleged recently stolen property had been made by defendant and there was nothing for the jury to decide.”

To determine whether the evidence was sufficient to support a conviction, we view the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the state. State v. Thomas, 529 S.W.2d 379 (Mo.1975); State v. Colton, 529 S.W.2d 919 (Mo.App.1975). It is not the function of this court to weigh the evidence. It is the function of the jury to weigh and evaluate the evidence and to make the determination of whether the evidence proved defendant guilty beyond a reasonable doubt. Our review is limited to determining whether there was sufficient substantial evidence to support the jury’s finding. State v. Summers, 506 S.W.2d 67[1, 2] (Mo.App.1974); State v. Strong, 484 S.W.2d 657[10, 12] (Mo.1972).

This is a circumstantial evidence case and the sufficiency of the evidence is examined under a strict test. The facts and circumstances of a conviction based on circumstantial evidence must be consistent with each other, consistent with the hypothesis of the defendant’s guilt and inconsistent with innocence and point so clearly and satisfactorily to guilt so as to exclude every other reasonable hypothesis of innocence. State v. Sallee, 436 S.W.2d 246, 249-250[l] (Mo.1969); State v. Oliver, 520 S.W.2d 99, 101[3] (Mo.App.1973).

Likewise, that while circumstantial evidence must exclude every reasonable hypothesis of innocence it need not be conclusive nor prove an absolute impossibility of innocence. State v. Grey, 525 S.W.2d 367, 369[1] (Mo.App.1975).

Accordingly, our review being governed by these principles we set forth the evidence. Kenneth Knipmeyer owned a farm in Montgomery County, Missouri. Prior to approximately June 23,1974, he owned two welding machines which were kept in a building on the premises, a red 180 amp Forney and a gray 400 amp Westinghouse. The fair market value of the Forney was $150.00 and of the Westinghouse between $200.00 and $300.00, according to Kenneth Knipmeyer’s unchallenged testimony. The defendant and Thornton sold the two machines to Mr. George Pfister on June 23, 1974. On June 24,1974, Mr. Parker Harlan, who is City Marshall of Bellflower, Missouri, went to work at Mr. George Pfister’s residence and noticed on the premises two welding machines, a red Forney and a gray Westinghouse. That afternoon an informant told Harlan that defendant and one Robert Thornton had stolen the two machines. Harlan went to the Knipmeyer farm and learned that two welding machines which resembled the ones he had seen at the Pfister premises were missing. He also noticed that there were tire tracks appearing to be from a pickup truck showing that a vehicle had been backed up to the door of the building where the machines were kept; and there were marks on the concrete floor across which the machines had been dragged. The last time anyone had seen the machines on the Knipmeyer farm was about two weeks earlier, when Charles Knipmeyer, Kenneth Knipmeyer’s cousin who watches over the farm in Kenneth’s absence, was there planting corn.

When analyzed according to the above principles, the evidence reveals that Kenneth Knipmeyer identified with great specificity the two welding machines as his property. The defendant and Thornton sold the two welding machines to George Pfister on June 23, 1974. The defendant and Thornton delivered the machines to Pfister in a truck borrowed from one Henry Brewer, and fresh tire tracks too wide to be from a car were observed at the door of the building from where the machines were taken. The day after the machines were sold to Pfister they were discovered missing from the Knipmeyer farm; and that although defendant testified that he obtained one of the welders from a dump after he had seen it there on two consecutive days, Charles Knipmeyer who regularly drives by the dump testified that he never saw a discarded welding machine there. Taken together, these facts are inconsistent with a reasonable hypothesis of appellant’s innocence: We are convinced that the strict test to sustain a circumstantial evidence conviction has been met here. Defendant’s first contention that there is insufficient evidence to support the conviction is denied.

Defendant’s second allegation is that the trial court erred in submitting the case to the jury because a satisfactory explanation of the possession of the alleged recently stolen property had been made by defendant and “there was nothing for the jury to decide.”

There is no rule of law to this effect; in fact, the opposite is true. It is not the prerogative of the judge to remove the case from the jury whenever the evidence fails to exclude every possible hypothesis of defendant’s innocence. State v. Mussman, 526 S.W.2d 62, 64[3] (Mo.App. 1975); State v. Thomas, 452 S.W.2d 160, 162[3] (Mo.1970). Rather, the rule is that the credibility of a defendant’s explanation as to possession of stolen or allegedly stolen property is a question of fact peculiarly within the juror’s purview, and if they do not believe the explanation offered, the possession remains unexplained. State v. Grey, 525 S.W.2d 367, 369-370[4] (Mo.App.1975); State v. Cobb, 444 S.W.2d 408, 414[10] (Mo.banc 1969); State v. Sallee, 436 S.W.2d 246, 250[2] (Mo.1969). Defendant’s alibi for possession of the welding machines was that one of them was found in a dump and the other never belonged to Knipmeyer but was the property of defendant’s partner Thornton, and which Knipmeyer mistook for his own. To paraphrase the apt discussion in State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 454[7] (Mo.1944), cited with approval in State v. Grey, supra, defendant’s theory seems to be that if he explains his possession, the jury must believe it — but in almost all cases the defendant offers some explanation. The doctrine is that the credibility of the explanation is a question of fact for the jury, not that they must believe whatever explanation for possession the defendant offers. The point is without merit.

The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.