author: PER CURIAM.

text:
    Keith BROWN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27160.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Willard B. Bunch, Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., Pritchard, C. J., and SWOFFORD, J.
   PER CURIAM.

Pursuant to his plea of guilty, Keith Brown, hereinafter defendant, was sentenced to fifteen years imprisonment on a charge of robbery first degree.

Defendant now appeals the refusal of the court to allow him to withdraw his plea of guilty as requested in his motion under Rule 27.26, V.A.M.R. Defendant’s 27.26 motion alleged as grounds for relief that his counsel told him he would “probably” receive a seven year sentence because two other people involved in the same offense had received seven year sentences; two deputies of the county jail inferred that he would receive a seven year sentence; that his mother pleaded with him to plead guilty and let the judge give him seven years like he did the other two; that a fellow inmate in the county jail advised him that under the constitution the judge could not sentence him to a longer term than he gave to the other two defendants.

The court took up defendant’s 27.26 motion and denied the same without an evi-dentiary hearing.

A full transcript of the hearing at which the defendant pleaded guilty to the robbery charge is before this court. An examination of such transcript shows the trial judge conducted an extensive and thorough examination of both the defendant and his attorney. Such examination complied in all respects with the format set forth in the concurring opinion of Judge Donnelly in Flood v. State, 476 S.W.2d 529, 535 (Mo.1972).

Such examination perforce fully satisfies the requirements of Rule 25.04.

The hearing on defendant’s plea of guilty revealed, defendant’s statements in his 27.-26 motion to the contrary notwithstanding, that the trial judge propounded a number of questions to the defendant himself. By these questions the judge brought out from the defendant that no promises or threats had been made to him in order to induce his plea, and the court further advised the defendant in plain and direct language that if defendant pleaded guilty he would receive a sentence of somewhere from five years to life imprisonment. Defendant acknowledged that he understood the range of punishment and that the court was free to assess a punishment within the range allowed.

On this appeal defendant raises the singular point that his plea was not knowingly and voluntarily given because he relied upon the advice as alleged in his motion that his sentence would not exceed seven years. It is shown beyond any doubt in the transcript of the hearing at which his guilty plea was accepted that defendant voluntarily and knowingly entered a plea of guilty, knowing and acknowledging to the court that his sentence would range anywhere from five years to life imprisonment.

Under the circumstances shown here, the files and records in this case show the allegations made by defendant’s motion are fully refuted by the facts elicited at the guilty plea hearing. In this posture, defendant is not entitled to any relief. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974).

See also Cates v. State, 516 S.W.2d 792 (Mo.App.1974) and Pauley v. State, 487 S.W.2d 565 (Mo.1972) wherein similar allegations of expectation of sentence were held to be refuted by the facts shown at the guilty plea hearing.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Odell NELSON, a/k/a Kenneth W. Finley, Defendant-Appellant.
    No. KCD 27194.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.

      Willard B. Bunch, Public Defender, Robert A. Simons, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   PER CURIAM:

On May 11, 1973, a grand jury returned an indictment against Odell Nelson, charging him with robbery, first degree. More specifically, it was charged that Nelson did, on April 24, 1973, make an assault on one Ronald McDonald with a loaded .38 caliber revolver and, by putting McDonald in fear of immediate injury to his person, robbed, stole, took and carried away $100 which was in the care and custody of McDonald. On September 20, 1973, the State was granted leave to file an amended information in lieu of this indictment. The amended information charged Kenneth W. Finley, a/k/a Odell Nelson, under the Second Offender Act with robbery, first degree in the aforementioned particulars. The jury returned a verdict of guilty, and the court, after overruling the motion for new trial and duly granting allocution, sentenced the defendant to seven years in the Missouri Department of Corrections. The defendant has appealed claiming that (1) certain evidence was inadmissible, and that (2) he was unduly prejudiced when the jury was made aware that he had an alias. We rule that these issues have not been preserved for appellate review.

Rule 27.20(a), V.A.M.R. requires that a motion for a new trial in a criminal case be filed within ten days after the verdict is returned. That rule also provides that the trial court may, upon application, extend the time a maximum of thirty additional days. The record of this case reveals that the jury verdict was returned September 24, 1973, and on the same date defendant was given thirty days in which to file a motion for new trial. No application for a further extension was made. The motion for new trial was filed on October 30, 1973, the 36th day after the verdict and order.

Compliance with Rule 27.20(a) is mandatory, and a motion for new trial not filed within the time fixed by the trial court is a nullity and preserves nothing for review. The motion for new trial in this case was not filed within the time fixed by the trial court, was not timely and, hence, preserved nothing for review. State v. Clark, 432 S.W.2d 279 (Mo.1968); State v. Hamilton, 391 S.W.2d 872 (Mo.1965); State v. Howard, 476 S.W.2d 587 (Mo.1972).

Pursuant to Rule 28.02, we have reviewed the sufficiency of the information, verdict, and judgment and sentence — matters of record which require no assignment of error.

The information is sufficient and the verdict is responsive to the offense charged. The sentence was within the statutory limits, allocution was granted, and the judgment is in proper form.

The judgment is affirmed.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Theron KING, Appellant.
    No. KCD 27219.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Gerald M. Handler, Acting Public Defender, 16th Judicial Circuit, Robert A. Si-mons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals from a conviction of robbery in the first degree in a court tried case. His sole point made on this appeal is: “The finding by the trial court in its function as trier of fact that appellant was not suffering from a mental disease or defect at the time the crime was committed was clearly against the weight of the credible evidence.”

This point presents nothing for review. State v. Cannon, 486 S.W.2d 212 (Mo.1972); State v. Tschirner, 504 S.W.2d 302, 308 (Mo.App.1974).

Wholly apart from that procedural objection, defendant’s point has no merit. Our statute creates a presumption of freedom from mental defect and the burden of proof is upon defendant to overcome that presumption by substantial evidence. § 552.030(7), RSMo 1969, Y.A.M.S.; State v. Holmes, 439 S.W.2d 518, 521 (Mo.1969); State v. King, 375 S.W.2d 34, 38 (Mo.1964); State v. Bacon, 501 S.W.2d 499 (Mo.App.1973). Defendant did introduce evidence in the form of testimony by a psychiatrist that defendant suffered from a personality disturbance which led to a disassociative reaction and which prevented defendant from differentiating from right and wrong and also prevented him from controlling his behavior. This diagnosis was contradicted by the testimony of a psychiatrist offered by the State. The trial court chose to believe the State’s psychiatrist rather than that of the defense psychiatrist, and this choice has now become binding. Rule 26.01(b), V.A. M.R.; State v. Hatfield, 465 S.W.2d 468 (Mo.1971).

Even if the State had offered no testimony to contradict that of the defense expert, the trial court was not required to accept and follow that expert testimony. State v. Quilling, 256 S.W.2d 751, 752-753 (Mo banc 1953); State v. King, supra. The trial court specifically stated that the testimony of the defense psychiatrist “was not persuasive in the Court’s mind.” In view of that, the statutory presumption which remained in the case was alone sufficient to support the conviction.

Affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest G. CALLAHAN, Defendant-Appellant.
    No. KCD 27243.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.

      Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Douglas N. Merritt, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

This is a direct appeal from a jury-rendered verdict of guilty of rape. Defendant was sentenced to thirty-five years imprisonment and now poses three complaints to this court. A brief recitation of the facts will suffice.

Defendant abducted his victim from a shopping center on the evening of September 2,1973. He drove her in her own car to the countryside where she was forced to disrobe and submit to various sexual assaults. Upon completion, defendant forced the complaining witness to lie face down while he made his escape. The victim later arose, covered her nakedness with newspapers, and eventually found safety in a nearby home. She was muddy and emotionally disturbed, but gave a coherent account of the rape and told officers the assailant had her car.

The first claim of error faults the reading of hospital records, which contained a synopsis of a doctor’s examination of the victim, without the aid of expert testimony to clarify the meaning of the report’s technical terms. It is conceded the record was properly qualified under Section 490.680 RSMo 1969, V.A.M.S. (Business Records Act). Defendant argues that the language employed in it was both unintelligible and “ominous and damaging” per se.

The effective qualification of a document under Section 490.680 RSMo 1969, V.A.M.S., does not insulate that record from other grounds of attack made upon “specific and legally proper objections.” Allen v. St. Louis Public Service Company, 365 Mo. 677, 681, 285 S.W.2d 663, 666 (1956) and State v. Foster, 501 S.W.2d 33, 36 (Mo.1973). However, defendant objected to neither the specific terminology nor specific portions of the report. On the contrary, the objection was leveled in rather general fashion toward the whole of the hospital record. Such blanket objections are insufficient. State v. Durham, 418 S.W.2d 23, 31 (Mo.1967).

The defendant’s brief makes no more precise attack on the report than his objection at trial. It constitutes a diffuse and generalized attack on the ruling of the trial court as “obfuscation” and “suggestion and innuendo.” The portion of the report as read in evidence is a straight-forward account of a vaginal examination showing a laceration and nonmobile sperm, together with a history of a rape and visually discernible mud on the victim, all of which was corroborative of the victim’s testimony.

The use of precise medical terminology to describe the vaginal parts does not obscure the plain meaning of the report, that the victim had sustained trauma in the vaginal area and sperm were present indicating intercourse had occurred.

Defendant claims error in sustaining the prosecution’s objection to a question asked of an investigating officer regarding the amount of time required to transmit information from a police dispatcher to a patrol ear. Although the brief now states a purpose for this line of inquiry, no offer of proof was made subsequent to sustaining of the objection, and the transcript discloses no apparent relevancy of the question. Defendant’s question was about a collateral issue. Failure of offer of proof on a collateral issue defeats an assignment of error because, without the offer of proof, the issue’s relevance is not ascertainable by the court. State v. Whiteaker, 499 S.W.2d 412, 417-418 (Mo.1978), cert. denied, 415 U.S. 949, 94 S.Ct. 1472, 39 L.Ed.2d 565 (1974); State v. Turnbull, 403 S.W.2d 570, 572 (Mo.1966). Moreover, there was no foundation concerning the officer’s familiarity with, or expertise in, the communications aspect of police work. Indeed, the officer’s next response at least impliedly denied any ability to answer the excluded question. No error appears.

A motion to suppress any in-court identification of defendant by the victim was filed prior to trial, but later withdrawn by the defense counsel now representing defendant on appeal. The victim’s identification of defendant at trial passed without objection and was not challenged in the motion for new trial. However, defendant’s final point urges review of the question under Rule 27.20(c), V.A.M.R. The substance of the allegation before this court lies in the testimony of the victim, albeit somewhat equivocal, that of the six photographs shown to her during the police investigation, only that of appellant was in color. The six photos were introduced at trial and are before this court. All of them are black arid white.

Counsel for defendant, based on the equivocal testimony of the victim as to the “color” photograph of the defendant, asserts charges of serious misconduct in “substitution of pictures.” Presumably, the charges are made against the prosecutor and police. There is no basis within the record for any such charges and no basis whatever for attacking the identification of the defendant upon such a spurious ground.

The entire record relating to the identification has been reviewed, and it appears that the witness’ independent source of identification was considerable. She was with defendant for nearly an hour, during which time she viewed her assailant in close proximity. Occasionally the scene was very well lighted. The witness testified that by reason of her vocation as a cosmetologist, she is in the habit of paying close attention to bone structure, hair and facial features. Her identification was consistent and unwavering throughout all the evidence. Her testimony was in large part supported by independent testimony. Appellant’s third contention is, therefore, also denied.

Judgment affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Bernard MUSSMAN, Appellant.
    No. KCD 27463.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Willard B. Bunch, Public Defender, E. L. Messina, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TÜRNAGE, J.
   SOMERVILLE, Presiding Judge.

A jury found defendant guilty of Burglary, Second Degree, and fixed his punishment at imprisonment by the Department of Corrections for three years. The state’s case rested on circumstantial evidence. Defendant seeks appellate relief on two grounds.

First, defendant urges that the wholly circumstantial nature of the state’s evidence failed to negate “every reasonable inference of [his] innocence.” Otherwise stated, defendant challenges the sufficiency of the evidence to sustain his conviction. In reviewing defendant’s first assignment of error, this court accepts as true all evidence, circumstantial or direct in nature, favorable to the verdict, together with all favorable inferences that can reasonably be drawn therefrom, and rejects all evidence and inferences to the contrary. State v. Reed, 453 S.W.2d 946 (Mo.1970); and State v. Harris, 452 S.W.2d 577 (Mo.1970). The evidence in the instant case, when so viewed, lends itself to the following summarization.

Ronald Luebben and his family left their Kansas City home for Chicago on the morning of October 13, 1973. Prior to departure, Mr. Luebben secured all the doors and windows to both the house proper and an attached back porch. When the Lueb-bens departed from their home the screening and glass in all the doors and windows, both to the house proper and the back porch, were intact.

On October 16,1973, Officer Keith Gregory, a member of the Kansas City, Missouri, Police Department, was dispatched to the Luebben home where his attention was directed to the rear of the residence. There he observed a tear in the screening in the door opening onto the back porch. Upon entering the porch he discovered that the lower right windowpane “next to the lock” of the rear door to the house had been broken out, and was lying on the porch floor near the rear door.

“Evidence technicians” of the Kansas City, Missouri, Police Department, who were called to the scene, were able to “lift” twelve fingerprints, later identified as belonging to defendant, from the broken windowpane lying on the porch floor near the rear door. The screened back porch door and certain objects inside the house that were disturbed did not possess surfaces conducive to the detection of fingerprints.

After being notified that his home had been broken into, Mr. Luebben returned from Chicago and found several items of considerable value missing. Mr. Luebben did not know defendant, had never seen him in the neighborhood, and at no time ever gave him permission to be on the Lu-ebben premises or in the Luebben home.

Defendant’s mother, Jewell Smith, was his only witness. The Smith home, where defendant also resided, was located approximately one mile from the Luebben home. Mrs. Smith stated that defendant was self-employed to the extent that he did “odd jobs and canvasses for paint jobs around the neighborhood”. However, she did not recall defendant ever having performed any odd jobs in the block where the Luebben home was located.

Defendant principally relies upon Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967), to support his attack on the sufficiency of the evidence. There accused’s conviction of “housebreaking” was reversed on appeal. In reversing Borum’s conviction, the court noted that fingerprints, identified as Borum’s, found on a jar in the complainant’s home which had contained a coin collection stolen during the break-in, was the only evidence introduced by the government implicating Borum. The court stressed that the government had failed to introduce any evidence from which the jury could have reasonably found that the jar on which Borum’s fingerprints were impressed was “generally inaccessible” to- Borum. The ease was distinguished from Stevenson and Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 590 (1967), cert. denied 389 U.S. 962, 88 S.Ct. 347,19 L.Ed.2d 875 (1967), decided the same day (wherein Borum and his brother-in-law, Stevenson, were jointly indicted and tried), affirming Borum’s conviction for “housebreaking and robbery” committed one month after the alleged crime involved in Borum v. United States, supra. In Stevenson and Borum v. United States, supra, the government’s case not only disclosed that Borum’s fingerprints were found on objects located at the scene of the crime, but went a step further with the introduction of evidence from which the jury could have reasonably found that the objects at the scene of the crime upon which Borum’s fingerprints were found were “generally inaccessible” to Borum. In the case at bar the defendant conveniently omitted any reference to Stevenson and Borum v. United States, supra.

Unlike Borum v. United States, supra, the state’s evidence here disclosed the presence of defendant’s fingerprints at a place wherein an illegal entry into the Lu-ebben home had occurred. The state also presented evidence that defendant had never been observed in the neighborhood where the Luebben residence was located and at no time had permission to be on the Lueb-ben premises or in the Luebben home. Defendant’s own evidence lends itself to the conclusion that he had never performed any odd jobs in the block where the Luebben home was located. To say the least, it is highly unlikely that defendant’s “canvassing” for paint jobs would have placed him at the rear door of the Luebben residence, a location that was accessible to him only after gaining entrance onto the back porch through a screen door. Here the state’s case more readily identifies itself with the government’s case in Stevenson and Borum v. United States, supra, than to the government’s case in Borum v. United States, supra. Testimony exists in the instant case from which the jurors could reasonably infer, without torturing the evidence, that the broken pane of glass containing defendant’s fingerprints was not generally accessible to the defendant absent the intervention of criminally culpable conduct on his part. As held in State v. Gray, 504 S.W.2d 825, 826 (Mo.App.1974), a case involving facts remarkably similar to those here presented on appeal, “[although circumstantial, the fingerprint evidence was consistent with defendant’s guilt and sufficient to support the guilty verdict.” The obtaining rule in this state is that when the prosecution’s case rests upon circumstantial evidence “the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.” State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963); and State v. Brunson, 516 S.W.2d 799, 803 (Mo.App.1974). However, the circumstantial evidence rule should not be unduly distorted in its application, and, therefore, “the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence [;] . . . the mere existence of other possible hypothesis (sic) is not enough to remove the case from the jury.” State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). When the state’s case is so measured it is abundantly clear that the jury could and did reasonably conclude that the Luebben home was burglarized as alleged in the information, that defendant left his fingerprints on the broken pane of glass when he illegally broke into and entered the Lueb-ben home, and that defendant’s identification was adequately established.

Discussion of defendant’s first point is concluded with the following observation. During the past decade federal and state courts have subtly urged those charged with law enforcement to rely on scientific evidence rather than confessions to apprehend and prosecute persons accused of crimes. This advice was heeded by the state in the instant ease by relying on fingerprint evidence, a form of evidence widely accepted as having scientific reliability. Defendant, under the guise of some imaginative legal nicety, would seemingly preclude even the apprehension and prosecution of an accused by means of scientific evidence. The attack on the sufficiency of the evidence, after careful consideration, is ruled adversely to defendant.

Second, defendant urges that the trial court erred in overruling his motion to suppress certain statements he made to the officer who arrested him. Defendant concedes that the arresting officer gave him a proper Miranda warning before any interrogation occurred. Nevertheless, defendant claims that statements he made importing that he didn’t remember whether he committed the burglary in question were inadmissible since he was under the influence of drugs at the time, thereby rendering the statements involuntary. The trial court ruled that the statements were voluntarily made, but were nonetheless inadmissible as direct evidence of defendant’s guilt since they failed to constitute an admission or confession of the crime for which he was being tried. However, the trial court ruled that the statements were potentially admissible for purposes of impeachment in the event defendant took the stand and testified “that he remembers that he did not commit the burglary.” Defendant did not take the stand during the trial and the statements were never offered by the state for any purpose.

Defendant unabashedly accuses the trial court of reversible error in overruling his motion to suppress because, as nearly as this court can ascertain, the statements were involuntarily made and the potential threat that the state might use them for impeachment purposes stifled his desire to take the stand and testify in his own behalf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), is the sole authority advanced by the defendant to support his second and final point. It is cited by defendant as standing for the proposition that due process is violated when a conviction is founded, in whole or in part, upon an involuntary confession. A more careful analysis reveals that Jackson v. Denno, supra, condemned New York state procedure which left to the jury, under proper instructions, the ultimate determination of the voluntary character and truthfulness of a confession, although it was underpinned by the fundamental principle which defendant presently attributes to it.

This court harbors serious reservations whether defendant’s final point, abstruse at best, presents a justiciable issue. Be that as it may, the point apparently sought to be posed by defendant can be readily disposed of on fixed and established principles of law pertaining to judicial ascertainment of the admissibility of statements by an accused when their voluntariness is put in issue. On appeal, this issue sifts down to whether there was sufficient evidence to sustain the trial court’s finding that the statements were voluntarily made by defendant. State v. Alewine, 474 S.W.2d 848, 852 (Mo.1971).

At the hearing on his motion to suppress defendant testified that during his interrogation he was under the influence of eight “mini-whites” and therefore did not know “exactly” what “was going on”. On the other hand, he admitted that he was able to comprehend his surroundings, knew he had been arrested on suspicion of burglary, and recalled answering questions as to other burglaries, one of which he was able to identify by giving the approximate address of its location. The interrogating officer testified that defendant appeared to comprehend all questions propounded to him, unhesitatingly responded to them with coherent answers, and in no way appeared to be under the influence of drugs. In short, the interrogating officer perceived nothing abnormal about defendant’s appearance or demeanor which in anyway indicated that defendant’s senses were dulled by drugs. Perforce, the issue of voluntariness resolved itself into one of credibility. This court quite properly defers to the trial court’s assessment of the credibility of the evidence surrounding the issue of voluntariness in view of its superior opportunity to ferret out the truth. State v. Anderson, 384 S.W.2d 591, 604 (Mo. banc 1964); and Howard v. Swenson, 404 F.2d 469, 472 (8th Cir.1968). After so doing, ample evidence existed for the trial court to find that defendant’s statements were voluntarily given. Defendant’s final point may be ruled against him for this reason alone. See: United States v. Wilkins, 477 F.2d 323 (8th Cir. 1973), cert. denied, 414 U.S. 848, 94 S.Ct. 108, 38 L.Ed.2d 81 (1973); and State v. Stephens, 507 S.W.2d 18 (Mo. banc 1974).

Judgment affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Louis E. SERNA, Appellant.
    No. KCD 26971.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Charles W. Franklin, Asst. Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Donald R. Bird, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   SWOFFORD, Presiding Judge.

Appellant was convicted by a jury of sales of a controlled substance under a two-count Information and was sentenced by the court, under the Second Offender Act, to 25 years on the first count and five years on the second count, such sentences to run consecutively.

The only point raised on this appeal is that the trial court erred in not requiring the state to elect which of the two counts charged would be submitted to the jury.

The state offered evidence from a member of the Kansas City, Missouri Police Department on special assignment as an undercover agent for the Drug Enforcement Administration, a federal agency; a special agent with the Department of Justice, Drug Enforcement Administration; a member of the Columbia, Missouri Police Department; and a forensic chemist employed by the United States Department of Justice. For the purposes of this appeal, it will suffice to state that the testimony of the witnesses and the exhibits offered by the state established facts from which the jury could find that the undercover agent made two separate purchases of heroin from the defendant at Columbia, Missouri on April 12 and April 24, 1973, with which the defendant was charged in separate counts in a substitute information filed by the prosecutor of Boone County, Missouri on July 5, 1973. This information also set forth facts alleging that the defendant had previously been convicted for the illegal possession of a narcotic drug (heroin) in Travis County, Texas on June 12,1967; was sentenced on that charge for an indeterminate term of not less than two years nor more than three years, and was imprisoned therefor. Proof of this Texas conviction was presented to and received by the court below, which made the Second Offender Act clearly applicable.

The defendant did not testify nor did he offer any evidence at the trial. The court gave separate verdict directing instructions as to the alleged sale of April 12, 1973 (Count I of the Information), and of April 24, 1973 (Count II of the Information) and the jury returned separate verdicts of guilty on each, resulting in the sentences above noted.

In the defendant’s motion for a new trial, for the first time in the trial court, he raised the point now relied upon in this appeal. The basis of his claim of error is that the two charges or counts in the information were not such as could be properly joined under present Rule 24.04, as amended December 7, 1970, effective July 1,1971, which now permits such joinder of those offenses “which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan.” Such amendment to Rule 24.04 did indeed place in force new procedural principles with reference to charging criminal offenses and vastly broadened the areas of permissible joinder in the charging document—areas not yet clearly defined by decisional law. But such amended Rule 24.04 does not in terms or by reasonable interpretation relieve the defendant who asserts an improper joinder of offenses, from the obligations theretofore imposed upon him to preserve such claimed error, nor does it place any added burden upon the trial court to act on its own initiative. The obligations upon the defendant and the court remain the same as those heretofore imposed by clear and definitive decisional law.

Stated more specifically, if defendant claims an improper joinder of felony charges under either the old or amended rule, he must assert such objection in the trial court in the form of a motion to quash or to elect or request for jury instructions, or other relief, and assert the failure of the court to act in the manner requested as an error in his motion for a new trial. Otherwise, the right to present such alleged error on appeal is waived. State v. Terry, 825 S.W.2d 1, 4, 5[1, 2, 4, 5] (Mo.1959); State v. Buffer, 424 S.W.2d 776, 780[8, 9, 10] (Mo.App.1968); State v. Frankum, 425 S.W.2d 183,189[16] (Mo.1968); State v. Phelps, 478 S.W.2d 304, 307[4] (Mo.1972). As was succinctly stated in State v. Walker, 484 S.W.2d 284, 286[3] (Mo.1972):

“ * ⅜ * accused cannot complain of a failure of the prosecution to elect where he has made no request for an election

In the case at bar, the defendant made no request before or during the trial that the information, evidence or submission be restricted to one of the two offenses with which he stood charged or for any other relief consonant with the position assumed by him in his motion for a new trial and here. The record does not disclose why he followed this course and no criticism is leveled at him or his counsel for not doing so. Trial strategy or other valid reasons undoubtedly dictated such decision. As the court said in State v. Terry, 325 S.W.2d 1, at l.c. 5[5]:

“ ⅝ * * jn other words, if a defendant prefers that two distinct felonies with which he is to be charged be joined in one information, and if he prefers that he be tried on both those charges at one and the same trial, we perceive no reason why he may not so elect. * * * ” (Emphasis the Terry court’s)

Nothing herein contained is to be considered an expression of the propriety or impropriety of the joinder here involved under Rule 24.04. That problem is not reached.

For the reasons herein stated, the judgment is affirmed.

All concur.

      . Note the case of State of Missouri v. Lawrence Baker, 524 S.W.2d 122, (Mo. banc, decided June 9, 1975).


author: RENDLEN, Judge.

text:
    John J. BUONCRISTIANI et al., Plaintiffs-Appellants, v. Leslie R. RANDALL et al., Defendants-Respondents.
    No. 35942.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 8, 1975.

      James E. Godfrey, Inc., Samuel T. Vand-over, St. Louis, for plaintiffs-appellants.
    Vincent S. Moody, Clayton, for defendants-respondents.
   RENDLEN, Judge.

Plaintiffs below bring this appeal from denial of their prayer asking injunctive relief for alleged violations of restrictive covenants in the Kar-Lin Estates Subdivision of St. Louis County. Suit was brought in three counts but plaintiffs appeal only as to Count I, charging defendants with erection of a fence in contravention of Part C-2 of the subdivision indenture and seeking removal of offending portions of the fence.

Our review is de novo, giving deference to the trial court’s findings in matters involving the credibility of witnesses but reaching our own conclusions as to both facts and law. Minton v. Lichtenstein, 487 S.W.2d 43, 46[1] (Mo.App.1972).

The parties are neighbors in Kar-Lin Estates. The Buoncristianis’ house faces north on Zermatt Court, an east-west street. The Randalls, adjacent neighbors on the east, occupy a house on the corner of Zermatt Court and Cordes Drive; their house, facing east, fronts on Cordes Drive, a north-south street. Both parcels came to the present owners by direct or mense conveyance from the original common grantor, George Karr, Jr., developer of Kar-Lin Estates.

When devéloping the subdivision Karr executed a document entitled “Restriction Indenture”, applicable to all lots in the subdivision, running with the land whether or not embodied in subsequent conveyances. Its purpose was to make “said subdivision desirable as residential property.” Since resolution of this case turns on interpretation and application of the indenture, we set out its relevant portions.

l( * * *
PART C.
RESIDENTIAL AREA COVENANTS
* * * ⅝ * ⅝
C-2. No building shall be erected, placed or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the architectural control committee . . . No fence or wall shall be erected, placed or altered on any lot nearer to any street than the rear line of the building unless similarly approved .
⅜ * $t * * *
PART D.
ARCHITECTURAL CONTROL COMMITTEE
D — 1. The architectural control committee is composed of George C. Karr, Jr., . Lucille L. Karr, . . and Katherine Harness, ... A majority of the committee may designate a representative to act for it. In the event of death or resignation of any member of the committee, the remaining members of the committee shall have full authority to designate a successor. Neither the members of the committee, nor its designated representative shall be entitled to any compensation for services performed pursuant to this covenant.
D-2. The committee’s approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove within 30 days after plans and specifications have been submitted to it, or in any event, if not [sic] suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.
PART E.
GENERAL PROVISIONS
E-l. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them
E-2. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages. (All emphasis added.)
$ * *

The Buoncristianis purchased their home in 1963, the Randalls in 1969. In 1963 Buoncristianis installed a chain link fence running easterly along their rear building line to the east line of their property, which is Randalls’ west property line, thence south to the back line of plaintiffs’ land. On February 21, 1972, Mrs. Buoncristiani observed a representative of a fencing company at the Randalls and that afternoon telephoned Mrs. Randall asking if she were aware of the indenture restrictions concerning fences, to which Mrs. Randall replied in the negative. On March 13 poles for chain link fencing were installed on defendants’ property. The next day Mrs. Buoncristiani sent a telegram to the Randalls advising of the apparent indenture violation and requesting they cease further installations, and mailed them a copy of the indenture. On March 15 chain link was attached to the poles and the fence completed.

Following is a drawing showing the lots, house locations and fences. The dotted line represents the Randall fence and the crossed line that of the Buoncristianis.

Mrs. Randall testified she had been unaware of the indenture restrictions prior to her conversation with Mrs. Buoncristiani on February 21, but on that day contacted Mr. Karr, a named member of the architectural control committee, and presented him a sketch of the planned fence. Karr informed her that since completion of the subdivision he was no longer acting as trustee and would not rule the fence question. The committee never issued their approval or disapproval of the proposed fence. Four months after its completion Karr sent a letter to Mssrs. Komorowski and Reeves, other subdivision residents, announcing his resignation from the architectural control committee and appointing them to fill the committee vacancies.

Defendants admit their fence in part extends toward the front of their lot beyond the rear building line and also admit their familiarity with Part C-2 of the restrictions. However, they contend that failure of the architectural control committee to approve or disapprove the planned fence and failure of plaintiffs to institute suit prior to completion of the fence results in the covenants having been deemed complied with under Parts D-l and D-2 of the indenture.

Covenants of the type found here are classified as negative easements precluding servient owners from certain use of the land to which they would otherwise be entitled. Such covenants are property rights running with the land. Tracy v. Klausmeyer, 305 S.W.2d 84, 88[1, 2] (Mo.App.1957); Cook v. Tide Water Associated Oil Co., 281 S.W.2d 415, 418 (Mo.App.1955). Plaintiffs, as subdivision owners, have standing to seek enforcement of such covenants since they have an equitable interest in the easement burdening defendants’ property. State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741, 743[l-3] (1933); Hisey v. Eastminster Presbyterian Church, 130 Mo.App. 566, 109 S.W. 60, 62[2] (1908).

“[I]n construing restrictive covenants, the intent of the grantor-covenantor is controlling and is to be ascertained from the language used, viewed in light of the entire context of the instrument . restrictive covenants are to be strictly construed, are not to be extended by implication to include anything not clearly expressed in them. If there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property.” Pellegrini v. Fournie, 501 S.W.2d 564, 565[1, 2] (Mo.App.1973). But “ ‘(t)he principle that restrictions as to the use of real estate should be strictly construed and doubts resolved in favor of the free use of property should never be applied in such a way as to defeat the plain and obvious purpose of the restriction.’ ” Greenberg v. Koslow, 475 S.W.2d 434, 436[2, 3] (Mo.App.1971).

The indenture provision C-2, in pertinent part, states: “No fence or wall shall be erected, placed or altered on any lot nearer to any street than the rear line of the building unless similarly approved.” It appears, as plaintiffs claim, that those portions of defendants’ fence standing east of line C-D and E-F were constructed in violation of the above-quoted provision as they are nearer Cordes Drive than the rear line of Randalls’ home.

Plaintiffs also urge that those portions of the fence lying north of line D-H are in violation of the “rear building line” restriction relative to Zermatt Court. We do not agree. Webster defines “rear” to be the opposite of “front”. The rear line of the building is thus the one opposite the front line of the building and not the line intersecting the front building line and running as its side building line. See Margolis v. Wilson Oil Corp., 342 Mich. 600, 70 N.W.2d 811, 813[4] (1955). Other jurisdictions have ruled that the fact a lot is on a corner does not cause it to have two fronts, one on each street, Turney v. Shriver, 269 Ill. 164,109 N.E. 708, 709[1] (1915), and that “front property line” restrictions do not apply to a side street adjacent to a corner lot fronting on an intersecting street. Where a lot is a corner lot and it is doubtful if the restriction applies to a cross street, it will not be enforced as to such street. See 26 C.J.S. Deeds § 164(2), pp. 1113-1114, quoted in Maher v. Park Homes, Inc., 258 Iowa 1291, 142 N.W.2d 430, 434[6] (1966). Similarly, Staley v. Mears, 13 Ill.App.2d 451, 142 N.E.2d 835, 837[2] (1957), holds: “While it is true that a corner lot, . . . in a certain sense, front[s] on both streets, still, in the strict sense of that term, that portion of the lot, only, which is opposite the rear and faces upon the street, is properly designated as the front of such lot.” Conversely, that line opposite the front of the Randall house is the rear building line. Those portions of the fence located north of line D-H are not in violation of the restriction because of their proximity to Zermatt Court as related to the “rear building line” of the Randall home.

As previously indicated, those portions of the fence located east of lines C-D and E-F were originally in violation of the indenture provisions because of their positions in front of the rear building line of the Randall home; however, we hold that plaintiffs’ right of enforcement is vitiated by the inaction of the architectural control committee. The committee never issued approval or disapproval of the proposed fence nor filed a suit to enjoin construction. Part D-2 provides that if the architectural control committee “fails to approve or disapprove within 30 days after plans and specifications have been submitted to it,” affirmative approval is not required and the related covenants are “deemed to have been fully complied with.” It also contains a requirement that suit to enjoin must be brought prior to completion of construction or the restrictions are waived and the related covenant deemed to have been fully complied with.

Since defendants did not wait 30 days to ■commence construction but instead built the fence during the 22nd to 24th days following submission of the fence plans, it could be argued that the thirty-day requirement was thus extended to April 14 (30 days beyond March 15, the completion date of the fence) for committee approval or disapproval. This offers plaintiffs little comfort since no action approving or disapproving the application was forthcoming during that period or any time thereafter. It could also be argued the time limitation (completion date of the fence) for filing suit by the committee should also be extended for the same reason; yet the fence was completed March 15, and if we extend the terms of the indenture by adding the 30 days following the completion of the fence, it avails plaintiffs nothing since suit was never brought by the committee.

The trial court, ruling for defendants, based its decision on the failure of plaintiffs to file their action prior to the completion of the fence. As shown above, we reach the same result for different reasons. It is not necessary to rule whether plaintiffs were required to bring suit prior to the completion of the fence since the provisions of the indenture were waived or nullified by the inaction of the architectural control committee. When the Randalls purchased their land they were charged with knowledge of the duly recorded fence restrictions of the indenture; similarly, the Buoncristianis were charged with knowledge of the extremely loose, even flimsy, provision for enforcement and waiver.

The fence is now deemed in compliance and plaintiffs’ claim denied. We now better understand the melancholy irony of the poet’s words, “Good fences make good neighbors.”

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.

      . Counts II and III, charging defendants with subdivision indenture violations by building a swimming pool and parking a house trailer on their land, were ruled against plaintiffs and no appeal is taken from that action of the trial court.

      . This illustration is taken from plaintiffs’ Exhibit R, a schematic drawing, and additional photographic exhibits.

      . Two other named committee members had resigned earlier. In their brief on appeal plaintiffs do not raise the issue of whether the architectural control committee was in fact in existence and operating at the time defendants submitted their plans and it is therefore unnecessary for us to rule that question.

      . Mending Wall by Robert Frost.


author: DOWD, Judge.

text:
    Kenneth Leroy HENDERSON, a minor, by and through his next friend and natural guardian, Yvonne Henderson, Plaintiff-Appellant, v. Wilbert JACKSON, Defendant-Respondent.
    No. 36075.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 8, 1975.

      Samuel A. Goldblatt, St. Louis, for plaintiff-appellant.
    Donald W. Brown, Richard H. Sjarda, St. Louis, for defendant-respondent.
   DOWD, Judge.

The plaintiff, a minor, through his next friend and guardian, brought an action for personal injuries sustained when he was struck by an automobile driven by defendant. The jury found for defendant, and plaintiff appeals.

The sole issue on appeal concerns the length of time the trial court allotted for plaintiff’s closing argument. Plaintiff contends the trial court abused its discretion both when it allotted him less time than he had requested and when it would not permit him an extra minute at the end of his argument.

After all the evidence had been presented, the trial counsel and the judge met in chambers to discuss instructions and the length of time the parties would have for closing arguments. The judge allowed each side twenty minutes for closing argument. Plaintiff’s counsel protested that he would need thirty minutes for his closing argument, but the judge insisted that twenty minutes would be sufficient if counsel concisely stated his case and eliminated less relevant matters. The first part of plaintiff’s closing argument consumed eighteen minutes, thus leaving only two minutes for the last part of his closing argument. When the final two minutes had elapsed, plaintiff’s counsel requested one more minute, but the trial judge denied the request.

The length of time allowed for final arguments has long been a matter within the sound discretion of the trial court, and appellate courts will not interfere unless this discretion has been clearly abused so as to deny counsel a reasonable length of time to present his case to the jury. Silver v. Hale, 2 Mo.App. 557 (1876); Reagan v. St. Louis Transit Co., 180 Mo. 117, 79 S.W. 435 (banc 1904); Neumann v. St. Louis Transit Co., 109 Mo.App. 221, 84 S.W. 189 (1904); Jackson v. City of Malden, 72 S.W.2d 850 (Mo.App.1934), overruled on other grounds, Carpenter v. Kansas City Public Service Co., 330 S.W.2d 797 (Mo.1959).

The determination of time to be allotted for closing arguments depends on a number of factors: the length of the trial, the number of witnesses, the number and complexity of the issues involved, and the competence and experience of the trial counsel. Reagan v. St. Louis Transit Co., supra; Price v. Laclede Gaslight Co., 219 S.W. 706 (Mo.App.1920); Stoecker & Price Storage & Auction Co. v. Cooper, 220 S.W. 972 (Mo.App.1920); Larkin v. Wells, 44 S.W.2d 882 (Mo.App.1932).

After carefully reviewing the entire trial record, we conclude that the trial judge, under the circumstances of this case, did not abuse his discretion in permitting plaintiff’s counsel twenty minutes for closing argument. The trial judge is a very experienced and highly capable jurist. Plaintiff’s trial counsel is an experienced and successful advocate. The trial was relatively brief, the total elapsed time from voir dire to verdict amounting to only two days. The issues presented to the jury were well-defined and not unduly complex.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    BEAUTY SUPPLIES, INC., a corporation, a/k/a National Beauty Supplies, Inc., a corporation, Plaintiff-Respondent, v. The HANOVER INSURANCE COMPANY, a corporation, et al., Defendants-Appellants.
    No. 36470.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 8, 1975.
    Motion for Rehearing or Transfer Denied Aug. 7, 1975.
    Willson, Cunningham & McClellan, J. H. Cunningham, Jr., St. Louis, for defendants-appellants.
    Burton H. Shostak, Kramer, Chused, Shostak & Kohn, St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Action for damages to property belonging to Beauty Supplies, Inc. under the vandalism and malicious mischief coverages of policies of insurance issued by five insurance companies. Following trial to the court without a jury judgment was rendered for insured for $14,388.90. The five insurers appeal on the sole ground that the loss was not covered because it resulted from thieves or burglars breaking into the building and causing the damage and the policies expressly exclude loss by pilferage, theft, burglary or larceny. We affirm.

The five policies are not all-risk policies but insure only specific perils such as fire, lightning, sprinkler leakage and the perils listed in the extended coverage endorsement, which do not include water damage. The five identical vandalism and malicious mischief endorsements read as follows:

“In consideration of the premium for this coverage, and subject to the provisions of this policy and the Extended Coverage Endorsement attached thereto, the coverage under said Extended Coverage Endorsement is extended to include direct loss by Vandalism and Malicious Mischief. “Provisions Applicable Only to Vandalism and Malicious Mischief: The terms ‘vandalism’ and ‘malicious mischief’ as used in this endorsement mean only willful and malicious damage to or destruction of the property covered hereunder.
⅜ ¾: ⅜ ⅜ sjs ⅜
“2. This Company shall not be liable for loss—
⅝ * ⅜ ⅝ *
(b) by pilferage, theft, burglary or larceny, except that this Company shall be liable for willful damage to the building^) covered hereunder caused by burglars;
⅛ * ⅜ ⅜ * ⅝

On May 20, 1970 insured was a tenant occupying the ground floor of the building located at 5605-07 Delmar Boulevard in the City of St. Louis. The building in which insured’s property was located was not covered by these policies. On that date unauthorized persons entered the vacant second floor of the building, which was not rented to or occupied by insured, and stole plumbing fixtures therefrom by tearing them out of the walls and flooring of the second floor, breaking them loose from the connected water pipes, thereby permitting water to flow continuously over the floor of the second story, from whence the water leaked and came down through the ceiling of the first floor occupied by insured, damaging insured’s goods, wares and merchandise in the sum of $14,388.90. Insured made claim against all insurers. Liability was denied by each insurer. Judgment was entered for that sum plus $1,500 attorneys’ fees and court costs. Insurers’ motion for new trial was overruled, except as to the item of attorneys’ fees, whereupon this appeal was taken.

Insurers argue that the loss was the direct and proximate result of the acts of thieves and burglars, and since the vandalism endorsement excludes liability for loss caused by theft or burglary the loss is not covered.

This is a question of proximate cause. While the means and method by which the unauthorized persons entered the building are not disclosed by the stipulation of facts, we assume there was a sufficient breaking to constitute a burglary. What happened, then, was (1) a burglary, (2) acts of vandalism, Romanych v. Liverpool & London & Globe Ins. Co., 8 Misc.2d 269, 167 N.Y.S.2d 398, 402, and (3) a theft. In our view the loss was directly caused by acts of vandalism, a specifically covered- risk, notwithstanding a peril expressly excluded (burglary) was an antecedent contributing circumstance, and another peril expressly excluded (theft) was an independent concurring cause.

The burglary is not a factor in determining the proximate cause of the damage from water leakage. “An antecedent contributing circumstance is generally ignored in determining the proximate cause. That is to say, a situation which merely sets the stage for the later event is not regarded as being the proximate cause merely because it made possible the subsequent loss. For example, the explosion of gas, and not the lighting of a match, is the proximate cause of loss, where the explosion is caused by the lighting of a match in a room filled with gas. Likewise, the destruction of a plate-glass window, shattered when gas exploded upon its ignition by a lighted match being used to locate a gas leak, is by explosion, and not by fire, within an exception in a policy insuring the window against loss by fire.” 18 Couch on Insurance 2d § 74:714, p. 618.

Insurers cite Frisbie v. Fidelity & Casualty Co., 133 Mo.App. 30, 112 S.W. 1024 (1908), as a case squarely in point. Frisbie sued on a plate glass insurance policy which excepted loss in consequence of fire. A fire was started elsewhere and burned up to the insured building, which was dynamited, either by town authorities or a concerted action of the property owners (including the rental agent of the building dynamited) to prevent the further spread of the fire. Pointing out that the people who wrecked the building were not actuated by wrongful motive but by apprehension that the building if not removed would be destroyed by fire and would be the vehicle for spreading the fire, the court held that the proximate cause of the plate glass loss was the fire; that the dynamiting was a natural and necessary result of the fire and not an independent, supervening cause. The court cited from another case in which property was intentionally destroyed, in which it was stated that the proximate cause is the efficient cause, “the one that necessarily sets the other causes in operation.” Frisbie is to be distinguished on the ground that two elements present in that case are absent here, namely, necessity and consent.

In Fawcett House, Inc. v. Great Central Insurance Co., 280 Minn. 325, 159 N.W.2d 268 (1968) an insured recovered under a casualty insurance policy which excluded any loss resulting from change in temperature, where a specifically covered risk (the act of vandals in shutting off insured’s heating system during freezing temperatures) directly caused the condition which permitted the heating and plumbing system to freeze. The court said, 159 N.W.2d l.c. 270: “ * * * the loss here is covered because it was directly caused by a specifically covered risk, even though indirectly and incidentally enhanced by another peril expressly excluded from coverage. Anderson v. Connecticut Fire Ins. Co., 231 Minn. 469, 43 N.W.2d 807.” In Hatley v. Truck Insurance Exchange, 261 Or. 606, 494 P.2d 426 (banc 1972), adhered to and rehear. den., 261 Or. 606, 495 P.2d 1196, an insured recovered under a policy of property insurance containing a vandalism and malicious mischief endorsement but excluding loss caused by surface water and water below the surface of the ground, where sometime during the night unknown persons took a hose lying on the ground near the building, turned on the hose full force and placed the hose near the building at the bottom of a sloping area and left it running for a protracted period, resulting in considerable damage. The court said, 494 P.2d l.c. 432: “The vandalism and malicious mischief endorsement was added to the policy to give coverage for damage caused by just such acts. Where the act of vandalism or malicious mischief consists of turning water against the building, and where there is water damage as a direct and immediate result of that act, the general policy exclusion for certain types of water damage does not apply.”

Nor is the theft a controlling factor. If the theft be considered as a concurring cause of the loss, it was not the predominating, efficient one. The stealing and carrying away of the plumbing fixtures, after their severance, did not cause the damage to the goods of the insured. To the extent that the taking was concomitant with the vandalism, that element of stealing was a concurrent cause of the loss, but “ * * * when there are two concurrent causes of a loss, the predominating, efficient one must be regarded as the proximate [cause], * * Howard Ins. Co. v. Norwich & N. Y. Trans. Co., 12 Wall. 194, 20 L.Ed. 378 (1870). In Allstate Ins. Co. v. Coin-O-Mat, Inc., 202 So.2d 598 (Fla.App.1967), it was held that loss suffered when persons entered a laundry owned and operated by insured and severely damaged 12 washing machines was not excepted from policy coverage of direct loss to insured’s property through vandalism and malicious mischief by a clause in the policy excluding loss by theft or burglary even though it occurred in the course of an actual or attempted theft or burglary.

If it be contended that the chain of causation was set in motion by the burglary and intent to steal, insured nevertheless should prevail under the rule that “ * * recovery may be allowed where the insured risk was the last step in the chain of causation set in motion by an uninsured peril, * * Revised Vol. 5, Appleman Insurance Law and Practice § 3083, p. 311.

We conclude that the burglary was an antecedent contributing circumstance but not a proximate cause; that the theft, while a concurrent cause, was not the predominating, efficient cause; that the proximate cause of the loss was the vandalism, a specifically insured risk. Accordingly the judgment is affirmed.

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


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Gene Elmer BLANKENSHIP, Appellant.
    No. 9898.
    Missouri Court of Appeals, Springfield District.
    July 14, 1975.

      John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for respondent.
    Frederick E. Steck, Sikeston, for appellant.
   BILLINGS, Chief Judge.

Defendant Gene Elmer Blankenship was convicted of stealing “Baby”, a 500 pound Duroc sow, and her three gilts from their Ripley County pen, and the jury fixed his punishment at two years in the penitentiary. He contends error was committed in denying him a continuance of his trial and asserts his inculpatory statements to officers should have been excluded from evidence because they were involuntary. We affirm.

“Baby” and her offspring, each of the latter weighing 350 pounds, were purloined from their owner’s pasture on August 14, 1973. Defendant was taken into custody under a warrant on August 23, 1973, in Wayne County and was conveyed to the Ripley County Jail that night by Sheriff Dawes and Deputy Patrick. Miranda warnings were given the defendant at the time of his arrest and again after he had been lodged in jail. Three days later he admitted to the officers that he and another individual had stolen the hogs.

The state’s information was filed September 11, 1973, and one week later the circuit court found defendant to be an indigent and appointed a Doniphan attorney to represent him. On December 4,1973, the original trial date, the defendant disqualified the regular judge, and a special judge was designated to try the case. On April 12, 1974, defendant’s trial was set by agreement for August 23, 1974.

On the morning of the scheduled trial defendant’s attorney advised the judge that defendant had prepared and desired to submit a motion of his own. Entitled “Motion to Postpone Trial”, the unverified document is as follows:

“(1) Hired Lawyer not present. Which was Hired about 6 months or more ago, hired same date as he was for Wayne Co. charge.

“(2) Wasn’t notified 5 calender [sic] Days before trial date, was notified August 20th at 11:45 A.M. By telephone By [Doniphan] appointed Lawyer.

“(3) Wasn’t notified early enough to supenia [sic] witnesses.”

Defendant’s attorney told the court that his client had advised him that he had hired a Sikeston attorney to represent him in a case pending in Wayne County and in the case before the court. The attorney stated he had not heard from the Sikeston attorney and understood that he was in Europe. The attorney also said that defendant felt he should have two individuals present as witnesses in his behalf, and that although he, the attorney, was late in notifying defendant the case was going to trial on August 23, 1974, he had in fact told him the case was set for trial. Defendant’s pro se motion was denied, and trial and conviction followed.

In this appeal the defendant is represented by his employed attorney. Point One of defendant’s brief states: “The court erred in not granting a continuance where ineffective assistance of counsel resulted in a denial to the defendant of his United States constitutional rights under the sixth and fourteenth amendments and requires a new trial in all criminal cases.”

The remaining point in the brief is: “A conviction based on a coerced or involuntary confession is a denial of the fourteenth and fifth amendments of the United States Constitution and requires a new trial in all criminal cases.” As subpoints to Point Two the brief continues:

“1. All the circumstances taken together or individually make the confession by the defendant involuntary and inadmissable [sic],

“2. The defendant was illegally detained in violation of rule 21.11 of the Rules of Criminal Procedure during which time and without the assistance of counsel a eonfession was elicited as the result of promises and threats by the sheriff.

“3. The subsequent confession to the prosecuting attorney was the result of the same influences and inducements and therefore inadmissable [sic].”

Initially, we observe that under the Supreme Court Rules we would be justified in summarily dismissing this appeal for noncompliance with those rules. No jurisdictional statement as required by Rule 81.-08(b), V.A.M.R. has been filed in this case even though this deficiency was called to the attention of defendant’s counsel the same date the notice of appeal was received. Defendant’s brief does not contain the jurisdictional statement required by Rule 84.04(b). Defendant’s statement of facts falls short of being a “fair and concise statement . . . without argument.” Rule 84.04(c). Defendant’s points relied on do violence to Rule 84.04(d) inasmuch as they fail to advise us “wherein” and “why” the trial court erred in its rulings. Abstract statements of law, without any showing how they are related to actions or rulings of the trial court, are denounced by the rule and deemed inadequate. The argument portion of the brief does not contain a single page reference to the transcript as required by Rule 84.04(h).

We again call attention to the ever-increasing number of cases, civil and criminal, being appealed to the Court of Appeals of this state and the necessity for adherence to the rules governing appeals. The rules are for the benefit of all — litigants, attorneys and the appellate courts. The expansion of the jurisdiction of the Court of Appeals by constitutional mandate and interpretations thereof by our Supreme Court has resulted in an overflow of appeals that may ultimately submerge the appellate process in this state. Compliance with the appellate rules of procedure can help dam against the rising crest of appeals awaiting appellate review.

Since this is a criminal case and we are not unaware of the propensity of the federal judiciary in habeas corpus proceedings to ignore the rules and statutes governing procedure and practice of preserving error and obtaining judicial review in this state, as well as to override decisions of our Supreme Court, we have concluded, albeit reluctantly, to wade through the trial transcript and argument portions of defendant’s brief in an effort to rule the defendant’s complaints on the merits.

Point One: The thrust of this point is that the defendant’s pro se motion for a postponement of the trial should have been granted because his appointed attorney failed to investigate to determine if there were any witnesses for the defense, failed to earlier notify the defendant of the trial date, and failed to familiarize himself with the principles of law applicable to the case.

The only issue for our review is whether the trial court was guilty of an abuse of discretion in denying the defendant’s last minute motion on the morning of the trial. We are cited to a multitude of cases bearing on the question of ineffective assistance of counsel, but the issue of the trial court’s discretion and alleged abuse thereof is not touched upon. If the defendant is attempting to charge his trial attorney with ineffective assistance of counsel “[W]e decline to review this contention on direct appeal because the record does not sufficiently develop facts essential to a meaningful review.” State v. Cluck, 451 S.W.2d 103, 107 (Mo.1970).

Turning to the question whether the denial of defendant’s motion constituted an abuse of discretion, we first recognize the rule that we should not lightly disturb the action of a trial court in this area and should interfere only where a clear abuse of discretion has been demonstrated. State v. Reece, 505 S.W.2d 50 (Mo.1974).

In granting or denying a continuance in a criminal case the trial courts, of necessity for the proper and orderly process of the administration of justice, are vested with broad discretion. State v. Crider, 451 S.W.2d 825 (Mo.1970). See also State v. Jefferies, 504 S.W.2d 6 (Mo.1974).

Here, the defendant was appointed counsel more than eleven months before. the trial. Taking the defendant’s unverified motion at face value, he had employed another attorney six months or more before the trial date. No entry of appearance by such an attorney appears in the record, and according to defendant’s trial attorney he had not heard from the other attorney about the case.

The original trial date, December 4, 1973, was circumvented by the defendant’s disqualification of the regular judge. Thereafter in April, and by agreement, the trial was set for the August date. The defendant had ample time to consult with his appointed lawyer to assist in the preparation of his defense, including advising his attorney of any witnesses he desired subpoenaed in his behalf. There is no record showing that he made any attempt to notify his attorney of any witnesses or, for that matter, of the employment of another attorney to take over his case.

Treating the defendant’s motion as one for a continuance, it is fatally deficient. It in no respects complies with the requirements of the statute [§ 545.720, RSMo 1969, V.A.M.S.] or the rule [25.08 V.A.M.R.] governing an application for a continuance.

We find no abuse of discretion by the trial court, and the point is denied.

Point Two : Before the state offered evidence of defendant’s confession the trial judge, out of the hearing and presence of the jury, conducted a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing on the voluntary nature of the confession. The state, having the burden of proof of voluntariness since the confession was obtained while the defendant was in custody [State v. Williams, 369 S.W.2d 408 (Mo. banc 1963)], offered the testimony of Sheriff Dawes that the do-fendant had been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); that the defendant indicated he understood his “rights”; and that no promises, threats, or mistreatment was involved in the defendant admitting his guilt. Thus, the state met its burden by presenting a prima facie showing of voluntariness. State v. Nolan, 423 S.W.2d 815 (Mo.1968).

The defendant called Deputy Patrick as a witness in support of his contention the confession was involuntary. The deputy’s testimony as to a conversation between the sheriff and the defendant prior to the latter’s admissions can best be summarized by the last question asked the witness by defendant’s counsel and the deputy’s answer:

“Q: The purport was he was trying to help him on some other cases that were against him?
A: No, not to that extent. He [sheriff] said he wanted to talk to him about it and he would do what he could for him, but he could promise him nothing. That is what the sheriff said, as close as I can remember.”

The defendant admitted that the sheriff had read him the Miranda warnings several times. He said the sheriff told him that if he did not cooperate the sheriff was going to bring more charges against him. As a result of the sheriff’s statement the defendant said he then admitted his involvement in stealing the hogs. On cross-examination the defendant admitted that prior to giving the prosecutor a written incriminatory statement he had been asked by that official if he had any complaints about the way he was being treated and his only complaint was that he did not like the jail food very well. The prosecutor also asked the defendant if he, the prosecutor, had not made inquiry of him of any promises or threats by the sheriff. The defendant replied: “I don’t remember for sure about that.”

Also produced by the defendant as witnesses on the confession issue were his father and mother. The mother testified the sheriff told her that if she knew anything that her son had done to tell him and it would make it lighter on her son. Defendant’s father said he was present when the sheriff was talking to Mrs. Blankenship and the sheriff told them that if they knew anything or could get the defendant to say anything “[T]hey would go easy on him in this county and they would try to see that charges were dropped on him in Wayne County.” In rebuttal, the sheriff testified he did not make the statements attributed to him by Mr. and Mrs. Blankenship.

The trial judge concluded the defendant’s confession was voluntarily made, and the sheriff testified as to the defendant’s admissions as part of the state’s case.

“Where, as here, the testimony conflicts as to whether the confession was voluntary, admission of the confession into evidence by the trial court is a matter of discretion. State v. Pierce, 236 S.W.2d 314 (Mo.1951).” State v. Garrett, 510 S.W.2d 853, 855 (Mo.App.1974). We give due deference to the opportunity of the trial court to judge the credibility of witnesses [Rule 73.-01(3)(b)], and the evidence adduced at the hearing supports the conclusion that the confession of guilt by the defendant was voluntary.

The defendant further attacks the use of his confession because officers failed to take him before the Magistrate Judge of Ripley County on Friday or Saturday following his Thursday night arrest. Defendant says that this failure violated Rule 21.11 and rendered his detention in jail illegal, and, consequently, his Monday confession was rendered constitutionally infirm. We are cited to no authority which holds that noncompliance with Rule 21.11 converts a lawful incarceration into an unlawful one. In addition, the testimony of Sheriff Dawes was undisputed that when he inquired of the magistrate judge Friday when he could bring the defendant before the judge, the magistrate told the sheriff he would see the defendant Monday. We find no merit in this prong of defendant’s contention.

The judgment is affirmed.

All concur.

      . Our records reflect a three-fold increase in the number of appeals and petitions for original writs since our 1970-1971 judicial activities report.

      . Rule 21.11 reads as follows:
      “Warrant — Arrested Person Brought Before Judge or Magistrate
      Persons arrested under a warrant for any offense shall, as soon as practicable, be brought before the judge or magistrate out of whose court the warrant issued, or if he is absent or his office be vacant, then before the nearest judge or magistrate of a court in such county having original jurisdiction to try criminal offenses. The warrant upon which the arrest was made, with a proper return endorsed thereon and signed by the officer making the arrest, shall be delivered to such magistrate or judge.”


text:
    Dorothy F. Grace SCHWARBERG, Plaintiff-Respondent, v. Kenneth GRACE, Defendant-Appellant.
    No. 36111.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 22, 1975.

      Rendlen & Rendlen, Clifford H. Ahrens, Douglas F. Browne, Hannibal, for defendant-appellant.
    Wasinger & Parham, Marion F. Wasinger, Austin Parham, Hannibal, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Dorothy Grace Sehwarberg, divorced wife of Kenneth Grace, brought an action against him to partition the marital dwelling house property in Hannibal, alleging that during the marriage they were seized of the property as tenants by the entirety; that following the divorce they became tenants in common; that each is entitled to a one-half share and that the property cannot be divided in kind. Petitioner prayed that the property be sold and the proceeds divided between the parties. Defendant filed a general denial. Following a trial to the court without a jury the circuit court decreed partition, finding that petitioner owns a ¾ interest; that defendant owns a ¾ interest; that the property cannot be partitioned in kind, and ordered it sold and the proceeds divided according to the interests of the parties after payment of costs and expenses. Defendant appealed.

The common source of title is Charlotte E. Grace, widow of Joseph M. Grace, Deceased. Petitioner called defendant to the stand and by him proved the following facts: Ten children, including defendant, were born of the marriage of Joseph and Charlotte Grace. Joseph died'April 5, 1927. Charlotte died May 16, 1942. The other nine children were Carl, Charles, Frank, George, Josephine, John, Mary, Richard and Wilbert. Carl died May 28, 1931, single, without descendants. On February 26,1946 George, Charles, Josephine, John and Wilbert, and their respective spouses, joined with Wayne Henry, surviving spouse of Mary, then deceased, in a warranty deed conveying the property in question to Kenneth and Dorothy Grace — the parties to this partition suit. Kenneth and Dorothy Grace obtained the interests of the minor children of Mary and Wayne Henry by a guardian’s deed dated August 14,1946. Petitioner testified that Frank and Richard died prior to the marriage of petitioner and defendant on April 22, 1941; that Richard died without children, leaving surviving a widow, Mary Frances, who later married a man named Bier and is presently residing in Buffalo, New York.

Defendant assigns error in decreeing partition. He contends that petitioner failed to prove whether Charlotte, the common source of title, died testate or intestate. She was shown to have died on May 16, 1942 and in the absence of evidence to the contrary a person shown to be dead is presumed to have died intestate. 23 Am. Jur.2d Descent and distribution § 51; 26A C.J.S. Descent & Distribution § 2, p. 519.

Defendant complains of failure to plead and prove “as to a determination or decree of heirship with respect to Charlotte * ⅝ *(!> [t]he presumption is that the land descended to the heirs of the common source on [her] death, and, when such heirs show heirship, title is prima facie complete.” 68 C.J.S. Partition § 101 a., p. 161.

Defendant objects that Mary Frances Grace Bier, widow of Richard, “was a dower claimant and a necessary party” and that the court erred in decreeing partition without Mrs. Bier having been made a party to this action under Rule 96.06, which provides that every person having an interest in the premises shall be made a party to the action. Defendant asserts that under § 469.010, RSMo 1949 the widow of Richard “had a dower interest in a third part of all her husband’s lands”; that under § 469.250, RSMo 1949 the widow had the right to sue for the assignment of dower in the county wherein the real estate was situate; that petitioner failed to introduce evidence from the records of the local court establishing that no such action had been commenced within the period of limitations, and therefore petitioner failed to account for her outstanding dower interest; that Mrs. Bier is a necessary party to this action. This contention fails. Mrs. Bier is neither a necessary nor a proper party to this action. Richard’s widow had no dower right because Richard was never “seized of an estate of inheritance [in this property], at any time during the marriage,” as required by § 469.010, supra. Richard died before the death of his mother and therefore never inherited any interest in the premises. “Dower depends upon the character of the seisin of the husband; that is, a beneficial seisin of lands in the husband, * * * of an estate of inheritance during coverture.” Resch v. Rowland, 257 S.W.2d 621, 624[1] (Mo.1953).

Defendant makes the further point, which must be sustained, that petitioner failed to plead or prove whether Frank left descendants surviving him. Since he died before the death of his mother, Charlotte, the common source of title, Frank never inherited an interest in this property. It is therefore immaterial whether Frank left a wife surviving him. See the next preceding paragraph. It is a matter of vital interest, however, whether Frank left descendants surviving him who were alive and in being at the date of the death of Charlotte, the common source of title, on May 16, 1942. We have searched the record in vain for evidence on this point. The unknown heirs, grantees and successors of Frank were not named as parties to this action. The circuit court, without any evidence on the question, apparently proceeded upon the assumption that Frank died without issue. Upon the death of Charlotte the property descended to her children, or their heirs. Frank was her child. If before her death Frank died intestate, leaving no surviving issue, his interest would not be counted in ascertaining the interests of the surviving heirs, but if Frank died intestate, leaving issue who survived the death of Charlotte, such issue would take Ms share.

The burden of proof in a partition action rests upon the party or parties bringing the action, to establish the title claimed. Tillman v. Melton, 350 Mo. 155, 165 S.W.2d 684, 687[5] (1942); 68 C.J.S. Partition § 101 b. (1), p. 162. When, as here, petitioner’s claim of title derives by descent it is incumbent upon petitioner to establish heirship, trace the line of descent through each of the heirs, and account for all outstanding inheritable interests. Except for possible heirs of Frank, petitioner has met this burden with respect to all outstanding interests. Thus, the record shows that defendant inherited and owns one interest in his own right as an heir. He and petitioner acquired the interests of six other heirs by virtue of the two deeds in evidence. The interests of Carl and Richard were accounted for by testimony that they died without surviving children, prior to the death of Charlotte. The name of Frank, however, is present in this record but unaccounted for. Whether Frank had heirs who have a present interest cannot be ascertained from this record. There is no presumption that Frank died without issue. Johnson v. Johnson, 170 Mo. 34, 70 S.W. 241, 247-248 (1902). Without proof foreclosing the possibility of an outstanding interest in heirs of Frank petitioner has not fully met her burden. Without such proof partition would be only partial and defective; would constitute a cloud on the title to the real estate, deter bidders at a partition sale and keep the sale from being free and open. Harper v. Hudgings, 211 S.W. 63, 65 (Mo.1919). All persons having an interest in the property must be made parties to the proceeding. Billinger v. Jost, 510 S.W.2d 57 (Mo.App.1974); Rule 96.06.

Except for this defect the judgment and decree of partition is proper in all respects. There was no error in denying defendant’s offer of proof that during the continuance of the marriage he made substantial and material improvements on the property, at his own cost and expense, for which he asks an allowance out of the proceeds of the sale. During coverture improvements on the marital dwelling are presumed to have been a gift upon the part of the husband, based upon mutual love and affection. Hosford v. Hosford, 273 App.Div. 659, 80 N.Y.S.2d 306 (1948).

For failure of proof with respect to the potential heirs of Frank the judgment and decree is reversed and the cause remanded with directions as follows: The case shall not be retried on the merits initially on this remand. The only immediate issue on remand will be whether Frank died without issue surviving him. If the finding is in the affirmative on this limited issue the court shall reenter the original judgment. If the finding is in the negative or is inconclusive on this issue the court shall give petitioner an opportunity and time to file an amended petition joining as defendants the heirs of Frank, if known, and the unknown heirs, grantees or successors of Frank, if unknown; to secure service upon them by publication, and to proceed in accordance with Rule 54.17. Only then and in that event shall the case be retried on the merits.

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