author: SHANGLER, Presiding Judge.

text:
    Fred J. HART, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30371.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      Clifford A. Cohen, Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Hope E. Thurrott, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   SHANGLER, Presiding Judge.

The petitioner, in forma pauperis, brought a pro se Motion to Modify Court Order. The motion was without further designation. The pleading alleged that upon indictment by the Grand Jury he was let to bail on condition that he submit for admission to the Research Hospital in Kansas City [for what purpose does not appear] and that he not leave that confinement “until approved by the court.” Thereupon, the pleading continues, he was “admitted to this hospital and placed on 7-wing west, a locked ward.” The petitioner was thereafter sentenced by the court and committed to the Division of Corrections. The pleading concludes with the prayer that the petitioner be given credit for the 60 days of confinement in the locked ward at Research Hospital ordered by the court as a condition of bail.

The court entered a summary denial of the motion, without hearing, or statement of reason or legal ground. The pleading was dismissed without determination of the affidavit of poverty, option for amendment or appointment of counsel.

The petitioner was sentenced [according to allegation] on February 23, 1977, and the motion was brought on June 26, 1978, so the action was for post-conviction, not post-trial, relief. The form was not as sanctioned by Rule 27.26(c) but that the remedy sought was the mandatory effect of § 546.615, which accords to a convicted felon credit on the sentence for “all time spent by him in prison or jail . . . awaiting trial,” seems clear enough. Nor does there seem doubt that the Rule 27.26 procedure, fashioned as the inclusive post-conviction remedy [Wiglesworth v. Wyrick, 531 S.W.2d 713, 715[1] (Mo. banc 1976)], accommodates the contention the motion pleads. Shepherd v. State, 529 S.W.2d 943, 948[10] (Mo.App.1975); Gregg v. Wyrick, 449 F.Supp. 969, 971[3, 4] (W.D.Mo.1978).

The question remains whether the allegations of the motion, by whatever designation, pleads a cause of action for post-conviction relief so as to entitle the petitioner to pose the claim by an acceptable form, an appointment of counsel and an adjudication according to the method of the rule.

A salient purpose of the enactment of § 546.615 is to ensure that an indigent accused who awaits trial shall not serve a longer term for the same sentence than an accused able to meet bail to avoid confinement before trial and sentence. Gregg v. Wyrick, supra. Thus, the provisions of § 546.615 do not apply to credit sentence during the time the accused is free at bail. Beaver v. State, 543 S.W.2d 787, 788 (Mo.App.1976); State v. Carr, 567 S.W.2d 422, 423 (Mo.App.1978).

The contention of the petitioner for credit on sentence for the time spent in hospital confinement during the pretrial [presumably, mental] examination regimen, therefore, depends upon whether the conditions for that confinement amounted to a suspension of bail. The allegations, taken as true, plead that he was admitted to bail on condition “that he be admitted to Research Hospital . . . and that he not be permitted to leave until approved by the court.” The motion pleads further that the petitioner was admitted to the hospital, kept in a locked ward, and after stay, was permitted to leave only on compliance with an increase in bail from $10,000 to $40,000 as ordered by the court. These conditions of confinement, assumed as true, describe that serious curtailment of freedom of movement and personal liberty to which persons under the regulation of a “prison or jail” must submit.

The authorities agree that the nature of the confinement rather than the place determines whether the time of the accused has been spent in “prison or jail” under comparable statutes. See: Annot., 77 A.L.R.3d 260: Time Credit for Preconviction Custody (1977). The ancient perception of Lord Coke that “[h]e that is in the stockes, or under lawful arrest, is said to be in prison, although he be not infra parietes carceris” [Second Institutes, p. 589] has been given effect to credit the pretrial stay by an accused in a hospital. People v. Noble, 26 Misc.2d 903, 207 N.Y.S.2d 467, 468[1] (1960); People v. Cowsar, 40 Cal.App.3d 578, 115 Cal.Rptr. 160, 161 (1974). A virtually unanimous opinion accords to “prison or jail” under statutes of the purpose of § 546.615 a meaning to include time spent in a hospital to determine unfitness to proceed or incapacity for criminal conduct from mental condition. Re Estate of Schneider, 130 Ill.App.2d 440, 264 N.E.2d 805 (1970); People v. Gravlin, 52 Mich.App. 467, 217 N.W.2d 404 (1974) and other cases cited in the 77 A.L.R.3d 260 Annotation, at 262.

The case of Harkins v. Wyrick, 589 F.2d 387 (8th Cir. 1979) cited by the State does not alter the effect or sense of these precedents. That court merely denied the claim that constitutional protection of the laws entitled him to jail time credit on a Missouri sentence for time spent in a federal hospital awaiting trial on a federal charge. The contention of the motion, however, pleads a claim for credit to jail time under the terms of the Missouri statute on a Missouri sentence, and not under claim of constitutional right. The terms “prison or jail” as used in § 546.615 describe places of confinement and' do not preclude other lawful places of detention by comparable means.

The motion pleads a cause of action for Rule 27.26 relief, but not in a form a court need entertain. The dismissal of the Motion to Modify Court Order is affirmed but without prejudice to a motion under Rule 27.26 to correct judgment on the cause of action previously alleged. The petitioner upon such a formal motion pleaded shall be entitled to appointment of counsel to adjudicate that question of law. Fields v. State, 572 S.W.2d 477 (Mo. banc 1978); Rule 27.26(h).

All concur.

      . These cases assume — quite correctly — but without reference to specific rule language that the claim for credit for jail time served before sentence falls within the purview of Rule 27.26. The provision of rule which allows a prisoner in custody under sentence the post-conviction procedure for such a claim is, most aptly, the clause: “that [the] sentence [was in excess of the maximum sentence authorized by law] or is otherwise subject to collateral attack.” The complaint of the petitioner relates, not to the trial process, but to the legality of the judgment imposed, and so falls within the literal enablement of Rule 27.26(a) and outside the exclusions of Rule 27.26(b).

      . The motion pleads a sixty-day hospital confinement, but the interval alleged amounts to only forty-eight days by actual count.

      . A court, of course, may order commitment of an accused to a hospital, under conditions, for a mental examination under § 552.020. Neither the record nor the briefs describe the purpose of the hospital confinement, but we assume, from the very conditions pleaded, that the order of the court proceeded under § 552.-020.


source: Caselaw Access Project

author: WASSERSTROM, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Kenneth W. FINLEY, a/k/a Odell Nelson, Appellant.
    No. KCD30384.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      Joe L. Anderson, Independence, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and BARNES, Special Judges.
   WASSERSTROM, Chief Judge.

Defendant was convicted in 1974 of first degree robbery, and that conviction was affirmed by this court in 1975 in State v. Nelson, 526 S.W.2d 56 (Mo.App.1975). That appellate review was, however, abbreviated because this court was then under the belief that defendant's motion for new trial had not been filed timely in the trial court, and the review was therefore confined to those few matters specified in Rule 28.02.

Thereafter, in 1978, defendant filed a motion under Rule 27.26 to set aside the conviction because of ineffective assistance of counsel. Upon the hearing of that motion, the trial court found that the time for filing motion for new trial had been extended immediately after the original trial, but that erroneously no record was made of that extension and the fact of the extension was not reflected in the transcript on appeal which had been filed in this court. The trial court therefore granted the motion to set aside the judgment and conviction and permitted defendant to file a new motion for new trial. Pursuant to that permission, defendant did file his motion for new trial, a hearing was held thereon, after which the motion was overruled and a new sentence was pronounced and judgment entered. From that judgment, defendant pursues the present appeal.

The pertinent facts of the underlying crime are as follows. About 10:30 p. m. on April 24, 1973, Church’s Fried Chicken at 4001 Troost in Kansas City, Missouri, was held up by three black men. Two of the men, one holding a gun, demanded the money out of one cash register manned by Ronald McDonald. The third man, described by McDonald as being “tall, dark and a little skinny” and who wore a bandage on his left hand, demanded the money from another employee out of a second register. The money so obtained was approximately $50 from each register.

As soon as the three robbers left, McDonald called the police, who arrived at the scene while McDonald was in the process of hanging up the telephone. McDonald described the robbers, and a notice of the robbery with a description of the robbers was dispatched over the police radio.

Officer Washington was in a police car in the close vicinity, and he started cruising the area with his lights off. He was hailed by an unidentified informer from whom he received a tip, and Washington immediately drove to an apartment building at 4010 Forest, approximately one block from the scene of the robbery. Other police officers promptly answered his call for assistance, and the group entered the apartment building. As they walked down the first floor corridor, they overheard a conversation issuing behind the door of one of the apartments at the end of the hallway. The voices were heard to say: “They are looking at your car; but don’t worry, they can’t connect you with this. * * * They are out there looking at your car. * * * Well, why don’t you go and move it? * * They’re not going to catch us; they are looking for three black dudes with dark glasses. * * * Bitch, if you snitch, I’ll kill you.” One of the police officers recognized one of the voices as being that of defendant, but the officer was not able to say just what part of the foregoing conversation was uttered by defendant’s voice. The entire time which elapsed between the commission of the robbery and the overhearing of the conversation just stated was not more than eight minutes.

Just as soon as the officers heard the conversation related, they broke down the door to the apartment and saw inside six or seven men, one woman and a child. All of the men were arrested and searched. Upon the defendant, who wore a bandage on his left hand, the police found $51.75 in currency and coins.

The original indictment charged the commission of robbery against defendant under the name “Odell Nelson,” and the caption of the indictment referred to “Odell Nelson, a/k/a Kenneth W. Finley.” Before trial the state requested leave to file an amended information and pursuant to leave granted by the court, did file an amended information against defendant as “Kenneth W. Finley, a/k/a Odell Nelson.”

Defendant’s first Point Relied On complains of the police officers being allowed to testify as to the conversation heard through the locked door of the apartment. Defendant’s Point states that “none of the remarks were attributed by any evidence to the appellant” and “[t]he conversation was, therefore, hearsay, not subject to any valid exception to the hearsay rule.” That Point has no merit. The conversation was not offered to prove the truth of any matter stated therein, and the statements were therefore not subject to objection as hearsay. Still v. Travelers Indemnity Company, 374 S.W.2d 95 (Mo.1964); Bond v. Wabash Railroad Company, 363 S.W.2d 1 (Mo.1962).

In the argument portion of his brief, defendant attempts to change his Point I by disclaiming his hearsay objection and substituting instead an objection based upon relevancy. In this connection, defendant’s brief states:

“In counsel’s estimation, the only conceivable probative value of such evidence would be to show the guilty knowledge or preparations for flight of the declarant. Those issues are relevant but not to this Appellant since he was not identified as the declarant. The issue is not one of hearsay or exception thereto but of relevance. Purporting to show the state of mind of the declarant, the statement says nothing about whether the Appellant said it, believed it or concurred in it.” (emphasis in the brief)

This attempt to depart from the Point Relied On violates Rule 84.04, and the quoted portion of defendant’s argument therefore is not properly before this court for consideration. State v. Flynn, 541 S.W.2d 344, 348 (Mo.App.1976); State v. Tschirner, 504 S.W.2d 302, 306 (Mo.App.1974); Nutz v. Shepherd, 490 S.W.2d 366, 372 (Mo.App.1973). However, reviewing the argument as a matter of grace, we find it without merit. The parties holding the overheard conversation were all participants in a continuing conspiracy, at a time only eight minutes after the robbery, while they were still actively seeking to escape and elude the police. The statements made by any one of the conspirators are admissible against all. State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 716 (1944).

Defendant’s next Point complains of the amended information, in that it referred to a pseudonym which he says had the effect of inflaming the jury and creating an inference of criminal design. Such prejudicial effect was impossible in this case because there was no evidence indicating that the amended information ever came to the attention of the jury.

Defendant attempts to expand his Point II in the argument portion of his brief by complaining of certain testimony which referred to defendant’s alias, "Odell Nelson.” This attempt to go beyond the Point stated is again a violation of Rule 84.04. Even if it could be considered, the additional argument is without merit. A showing that an accused person used an alias is not per se prejudicial, and where a reference to an alias creeps into the proceedings, the situation on appeal will be controlled by a concrete appraisal of the significance of the incident in relation to the processes of the trial as a whole. State v. Loston, 234 S.W.2d 535, 540 (Mo.1950). A concrete appraisal of the whole record here leads to the firm conviction that there was no prejudicial error.

Defendant’s third Point challenges the admission of the evidence concerning the money found in his possession. He claims that this evidence was obtained by an illegal search and seizure.

There is no question but that the currency and coin were seized as a result of a search incident to an arrest. Defendant’s complaint rests on the contention that the arrest was without warrant and was not based upon probable cause.

The requirements of probable cause in this connection are authoritatively set forth in State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975). It is there stated:

“Of course, all the information in the possession of the officers and all reasonable inferences therefrom are pertinent to determine probable cause. Whether there is justification for probable cause to arrest without warrant must be determined by practical considerations of everyday life on which reasonable men act and is not to be determined by hindsight by legal technicians. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The determination of probable cause depends upon the particular facts and circumstances of the individual case and no ready ‘litmus paper test’ can be applied.”

The court also went on to specifically discuss the treatment to be accorded an anonymous informer’s tip. In that connection the opinion holds in part as follows:

“To hold true to the principles of our Federal and State Constitutions, an arrest, invasion and search and seizure upon a mere tip of an informer cannot be countenanced. On the other hand, to deny law enforcement officers the power to arrest, search and seize based upon such information may result in serious consequences and the inability of such officers to ferret out criminal activity in the community and to control dangerous substances. A balance must therefore be struck. The proper test is that an officer may rely on information received through an informant, rather than on direct observation ‘so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge’ and there is a substantial basis for crediting the hearsay.”

The standards set forth in Wiley applied to the present record show the existence of probable cause to arrest defendant. To the anonymous tip received by Officer Washington, there must be added the fact that after entering the apartment building indicated by the informant, the officers heard incriminating conversation which corroborated the tip and moreover in and of itself indicated participation in the crime from which the participants were at that very time trying to hide themselves from discovery. Still further, when the officers entered the apartment they could physically observe defendant, whose voice they had already identified, and who fit the description which had been given to the police by McDonald.

There being no error, the judgment is affirmed.

All concur.


author: MANFORD, Judge.

text:
    In Re: MARRIAGE of Donna Colleen PICKERING, by Virginia Foster, Next Friend, and Jeffrey Ray Pickering, by Bernard G. Pickering, Next Friend, Petitioners. Jeffrey Ray Pickering, by Bernard G. Pickering, Next Friend, Appellant, and Donna Colleen Pickering, by Virginia Foster, Next Friend, Respondent.
    No. 30562.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      L. E. Atherton, Milan, for appellant.
    James G. Spencer, Milan, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from final order denying original motion for modification of decree of dissolution for change of custody, and further order modifying decree of dissolution modifying child support payments and visitation rights.

Appellant sought change of custody of minor son. The parties were granted a decree of dissolution July 7,1977 and in said decree, respondent was granted legal custody of the minor child.

A change of custody was sought herein on the premise that respondent failed to provide proper care for the medical needs of the minor child, that respondent would leave the minor child for long periods of time, that the respondent associated with unfit and improper persons and that said minor child is not maintained in a stable environment.

After hearing the evidence, the trial court made findings of record and overruled appellant’s original motion. As part of said proceedings, respondent had filed her answer to said motion and filed a counter-motion. The counter-motion requested an increase in monthly child support from $80.00 to $125.00 per month and for an award of attorney fees. The evidence of record established respondent’s conduct was not such as to warrant a change of custody. Further, the evidence of record established the necessity for and the ability of appellant to pay an increased amount in child support and that respondent was without adequate funds to pay attorney fees.

As to the question of visitation of the paternal grandparents, the evidence of record established the sound relationship between the minor child and the paternal grandparents and that the child’s interests could be yet better served by granting specific, but limited, visitation to the paternal grandparents.

The court ordered appellant’s original motion overruled, granted an increase in the monthly child support to $100.00 per month and affixed specific times for visitation for appellant and for the paternal grandparents.

The record confirms this to be a case reviewable under Rule 73.01 and that the trial court’s ruling was supported by substantial and competent evidence. The trial court heard evidence upon the allegations for change of custody and upon the allegations in the counter-motion. The trial court did not erroneously declare or apply the law and the record confirms there was substantial competent evidence to support the court’s order, thus satisfying the rule in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

The record in this matter leads to the further conclusion that this cause has no precedential value and disposition of same is made under Rule 84.16(b). The action of the trial court is in all respects affirmed.

All concur.

      . For reference as to authority of Circuit Court to grant visitation to either maternal or paternal grandparents, see § 452.400, RSMo 1978.


text:
    John Delbert HORN, Appellant, v. STATE of Missouri, Respondent.
    No. 30580.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Lloyd F. Dieckman, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Hope E. Thurrott, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from trial court’s order denying motion for post-conviction relief pursuant to Rule 27.26.

On this appeal, one point is raised as error, alleging that “The due process clause of the Fourteenth Amendment, United States Constitution, prohibits a defendant being sentenced upon his guilty plea where the plea is obtained by mistake, misunderstanding and unfounded hope.”

Appellant cites State v. Rose, 440 S.W.2d 441 (Mo.1969) in support of his alleged error. This case is authority for the proposal that post-conviction relief will lie, if and upon the evidence, an accused was misled or under misapprehension at the time he entered his plea of guilty. That case is sound law, but when the principle of that case is weighed against the evidence of the present case, it (State v. Rose, supra) fails to be applicable. The evidence herein simply fails to bring the present case within the rule of State v. Rose, supra.

On January 20, 1977, appellant entered his plea of guilty to three felony counts. These charges or counts were (1) carrying a concealed weapon, (2) felonious assault upon a police officer and (3) leaving the scene of an accident.

The record reveals the trial court conducted a lengthy inquiry of appellant to ascertain that said guilty pleas were entered into voluntarily. During the course of this hearing, the court inquired what negotiations had taken place between the prosecution and the defense relative to the recommendation of sentence. The state recommended the maximum 5-year sentence on each count, to run concurrently with no probation. In addition, the state agreed not to file additional charges against appellant relative to an altercation while appellant was detained in the Jackson County Jail. Appellant completed a written guilty plea form. The form included question no. 4, which read as follows:

“ ‘Has anyone promised you anything in order to to get you to plead guilty?’ ”

to which appellant, in writing, responded:

“ ‘Yes. I’ve been offered three five-year sentences to run together, one dollar to a thousand dollars.’ ”

The only conclusion which can be drawn from the record is the above-referred to language of “one dollar to a thousand dollars” refers to another question on the form regarding assessment of punishment. Appellant stated to the court he simply entered this answer at the wrong place on the form. Appellant was at all times represented by counsel and had an educational level of two years of college.

After the trial court conducted the lengthy hearing as to the voluntariness of the guilty pleas, the court entered 5-year sentences, to run concurrently, on each of the three counts.

On June 21, 1978, appellant filed his motion for post-conviction relief pursuant to Rule 27.26, alleging he was misled into pleading guilty on the assumption he would be paroled by Missouri authorities, thus enabling him to respond to a detainer from the state of Kansas for parole violation. In other words, appellant, in his motion, claims he pleaded guilty under the thought he would be paroled, thus enabling him to be returned to Kansas Authorities, and while satisfying the charges under Kansas law, he would satisfy the sentence of the Missouri trial for the three felony convictions. The only reference to this allegation is the subjective conclusion by appellant some 18 months subsequent to his plea of guilty. The conclusion was refuted on the record by testimony of both the prosecuting attorney and trial defense counsel.

Upon appellant’s 27.26 motion, a full evi-dentiary hearing was held and he was represented by counsel. The trial court denied the motion and from that denial, this appeal followed.

Other than the mere allegation by appellant that he was to be paroled on the charges so he could respond to a detainer from the state of Kansas, the record not only completely fails to substantiate appellant’s allegations, but reveals exactly what the prosecution agreed to do in exchange for the guilty plea.

During the hearing on the motion pursuant to Rule 27.26, it was alleged the assistant prosecutor promised or guaranteed parole for appellant; that he advised his defense counsel it was only under such terms he would plead guilty to the charges and that he wanted his guilty pleas withdrawn. The assistant prosecutor and defense counsel were present and testified at the 27.26 hearing, and both refuted appellant’s contention regarding the additional promise of parole. In addition, the defense counsel testified that at no time did appellant request a withdrawal of his pleas and the record fails to reflect a formal finding for such withdrawal.

The trial court proceeded with meticulous care in enabling the appellant the opportunity to prove his allegations. Except for the purely subjective claim by appellant that such a promise was made, there is not one direct piece of evidence, nor by any possible stretch of the imagination can one infer, that such promise was ever made to appellant.

The record reveals appellant was a well-educated individual, ably represented by counsel; that appellant entered into an agreement with the state relative to his sentencing and was aware of his actions, and that his actions and choices were, in fact, voluntarily entered into by him.

The mere allegation of appellant on this appeal that his constitutional rights were violated is found to be without merit. The evidence shows that appellant did not enter his pleas of guilty by mistake, misunderstanding or upon unfounded hope. The point raised by appellant is ruled against him.

The order by the trial court denying appellant post-conviction relief pursuant to Rule 27.26 was in all respects proper and that order, for the reasons set forth herein, is affirmed.

All concur.

      . While the rule in Fields v. State, 572 S.W.2d 477 (Mo.banc 1978) was enunciated subsequent to the case herein, the rule of that case was satisfied in fact by the trial court’s actions of a full evidentiary hearing, coupled with findings of facts and conclusions of law.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Robert Duane MYERS, Appellant.
    No. KCD 30667.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Paul Liebengood, Bates City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   PER CURIAM.

The defendant Myers appeals from a denial of his Rule 27.25 motion to withdraw a plea of guilty to a charge reduced to murder in the second degree. The motion was brought after imposition of sentence, and thus, after conviction.

While the express Rule 27.25 allows a motion to withdraw a plea of guilty after sentence to correct a manifest injustice, the normal scope of the procedure is meant to apply “only before sentence is imposed.” An application to withdraw a plea of guilty after imposition of sentence is an attack on the validity of the sentence within Rule 27.26. The procedure of Rule 27.26 is formulated for that distinctive purpose by a requirement of pleading, presentation of evidence on oath, entry of judgment supported by statement of reasons, and a record for appeal most apt to the adjudication of such an important grievance.

The contention of the defendant that the sentence was imposed upon a plea of guilty both involuntary and induced by an unhonored plea bargain is most aptly determined by a hearing on a Rule 27.26 petition. Bradley v. State, 564 S.W.2d 940 (Mo.App.1978). The record before us was on a proceeding far short of that contemplated for an informed post-conviction adjudication and review.

The appeal of the defendant is dismissed without prejudice to further proceeding by Rule 27.26 motion.


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles J. MILLER, Defendant-Appellant.
    No. 10994.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 2, 1979.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 16, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    A. L. Shortridge, Joplin, for defendant-appellant.
   MAUS, Judge.

The defendant was charged with possession of amphetamines. After a two-day trial, he was found guilty and sentenced to three years imprisonment in accordance with the verdict of the jury. The defendant argues four points on appeal, one of which is the sufficiency of the evidence.

A summary of the facts will be facilitated by the identification of the principals. The defendant was a deputy sheriff with long experience in security and law enforcement. Charles A. Goodwin was chief deputy sheriff. B. W. Forney and Larry Fuhr were also deputy sheriffs, assigned to criminal investigation. David W. Richardson was news director of a local television station. He was a friend of Goodwin. Judy Ryan was a young woman, 24 years of age, and an acquaintance of Richardson.

This case, as most cases do, presents some inconsistencies and conflicts in testimony. This is true not only in respect to the testimony of opposing witnesses, but in respect to the testimony of witnesses called by the same side. However, it is not the function of this court to weigh the evidence and sift out those conflicts and inconsistencies. That is the province of the jury. The jury has announced its determination of the facts by the verdict of guilty. It is for this reason that we must review the evidence most favorable to the state and consider favorable inferences drawn therefrom rejecting the evidence to the contrary. State v. Evans, 545 S.W.2d 694 (Mo.App.1976); State v. McNeal, 539 S.W.2d 722 (Mo.App.1976).

The defendant first became acquainted with Judy when he, along with other officers, served a search warrant at a home Judy was visiting. He said he subsequently saw her at the city jail when she was making a complaint or an inquiry. The defendant stated at this time she solicited marijuana from him and offered him a girl. She did not remember this incident. The defendant and Judy had further contact when the defendant on several occasions brought prisoners to a house where Judy was present. According to Judy, the purpose of at least some of these visits was for the prisoner to visit his girl friend. Also, according to Judy, on some of the visits the defendant supplied beer and vodka and on one occasion joined in smoking marijuana. The defendant had further contact with Judy when she accompanied Richardson to the courthouse to see about recovering her stereo which was being held by the sheriff’s office as evidence. While she was waiting in an outer office, according to Judy the defendant asked her to step into an adjoining room. There, the defendant showed her a small bag of mini-whites. At his repeated urging she took a few and he said that there were a lot more where they came from and if she wanted more, “he had a hundred for me and when I was ready, we would make an exchange.” He did not directly ask her to have sexual intercourse with him. He did suggest the exchange could be made at a small rural community. He told her to call when she was ready to make the exchange. In reference to the pills, approximately 9,000 to 10,000 at least similar, if not identical, pills were being held in a corn flakes box in the sheriff’s office.

Judy gave the pills to Richardson and they discussed the incident with Goodwin. Goodwin discussed the incident and other reports with the sheriff. The sheriff instructed him to investigate the defendant’s activities.

While there was no direct testimony, apparently plans were developed to test the defendant through Judy. Final arrangements were made at a meeting held at the television station early in the morning on April 30, 1976. Participating in the meeting were Goodwin, Forney, Fuhr and Richardson. Judy attended the meeting accompanied by her friend Susan Balleau. At the time of trial Susan Balleau had been killed in a car accident. After the meeting the group repaired to a home whose use had been arranged by Susan. From there, again in the early morning, Judy called the defendant and told him she was ready to make the exchange and gave him the address. At approximately 10:20 a. m. the defendant arrived. There was a discussion about the pills and why defendant wanted to go to bed with Judy. To the latter inquiry he replied because she appealed to him. He said he had to investigate a burglary, but would come back. Shortly before noon he returned. As they were upon his previous arrival, Richardson and Forney were hidden upstairs and Goodwin and Fuhr were in a bathroom adjoining the sitting room. A tape recorder had been placed under a couch in that room. The defendant entered and took from his pocket an envelope which he laid on a coffee table. Judy asked if it was all there and defendant said yes. When she asked if he was sure, he picked up the envelope and tore it open, displayed the pills and returned the envelope to the coffee table. The envelope was accompanied by defendant’s business card on the reverse side of which had been written “Tom Jones.” When the envelope was returned to the table, the officers emerged and defendant was arrested. As will be discussed in more detail, tests were performed on one of the pills and on the dust from the envelope with the result of the identification of amphetamine.

The defendant steadfastly denied his guilt. When arrested, he stated that he was trying to get some information. He repeated that explanation when he was questioned by the sheriff. However, it was not until later that he explained that the pills were vitamins (similar in appearance to the corn flakes box pills) that he had purchased at a drug store. The defendant attacks the credibility not only of Judy, but of Goodwin, Forney and Fuhr. The primary thrust of this attack was centered on the fact that Goodwin on April 29 filed for sheriff and the defendant had previously told him he could not support him. He also asserted that he had done such an outstanding job that the other deputies resented him. He also directly attacked the credibility of yet another deputy, Gary Smith. While the defendant denied the same, Gary Smith testified that, at defendant’s request, he went to defendant’s home where the defendant asked him to dispose of the evidence being held against him which was in the safe at the courthouse.

The defendant has placed emphasis upon an inconsistency in the description of the envelope involved. Judy testified in her deposition and at trial the envelope defendant took from his pocket was white. Defendant testified it was white. All others testified it was blue. The envelope in evidence is in fact a light blue. The defendant insists that this inconsistency means that there were two envelopes; a white one produced by defendant and a blue one containing the pills in question and produced by some other person. This argument ignores the right of the jury to determine that Judy and the deputy sheriffs were talking about the same envelope, which Judy described as a different color. The jury’s determination is supported by the evidence. Referring to the envelope defendant had taken from his pocket, Judy clearly testified that that envelope was on the table when the deputies came from the bathroom. The defendant’s testimony established that as he folded the envelope which he had torn open, the bathroom door opened and he laid the envelope on the coffee table. The defendant denied that he had blue envelopes in his possession. The testimony of Deputy Fuhr established that blue envelopes, at least similar to the one in question, were found in the front and in the trunk of defendant’s automobile.

The defendant’s explanation, his attack upon the credibility of the state’s witnesses and his emphasis upon the inconsistencies were all vigorously and ably presented to the jury. The jury resolved these issues against him and their resolution is supported by the evidence. “It was the jury’s province to resolve any conflicts in the evidence.” State v. Smart, 328 S.W.2d 569, 573 (Mo.1959). This court has no authority to determine otherwise.

The defendant insists that the state did not present evidence sufficient to support a determination that the pills contained amphetamine. As stated, the envelope contained approximately 100 pills. A qualified chemist performed three tests upon a pill and upon a quantity of dust from the envelope. The tests demonstrated the substances contained a mixture of amphetamine and caffeine. He did not perform a quantitative analysis to determine the relative proportion that was amphetamine. On cross-examination the chemist admitted the proportion could have been ½ % amphetamine and 99½% caffeine. But, the chemist stated that amphetamine is distinctive because of its molecular structure; that it is inappropriate to refer to the strength of amphetamine. A molecule of amphetamine is a molecule of amphetamine and the term strength is properly applied to the percentage of amphetamine molecules in a given mixture. The defendant presented the testimony of a pharmacist. He gave the structure of a molecule of amphetamine as defined in the United States Dispensato-ry as C9H13N and specifying that amphetamine must contain 98% of that formula. The “IP” required not less than 97% of C8H13N. The druggist in speaking of a pill that had to have something to hold it together said that if the pill didn’t have 96% to 98% of that formula it wouldn’t be amphetamine. It seems apparent the druggist was speaking of the purity required before a substance should be considered as pure amphetamine. His further testimony establishes his opinion that amphetamine can be present even though a substance is not of that purity. For example, he said that if amphetamine is mixed in a dry substance, whether it be caffeine, powdered sugar or anything that is a carrier, the amphetamine is still there. Nevertheless, the defendant argues that the pills in question were not proscribed “unless the strength of amphetamine is 96 to 98 percent.” We do not agree. The appropriate schedule defines the proscribed substance as “any material, compound, mixture or preparation which contains any quantity” of amphetamine, (emphasis added) 13 CSR 50-130(l)(B) 3. This is not a case where the substance identified by the chemist was not on the proscribed list as in State v. Bridges, 398 S.W.2d 1 (Mo. banc 1966), where the court remanded the case to give the state an opportunity to prove the substance was “a compound or mixture containing the proscribed drug amphetamine itself”. This is a case in which a proscribed drug was in compound. No quantitative analysis was required. State v. Umfleet, 538 S.W.2d 55 (Mo.App.1976). There was testimony that amphetamine was present in the pill and dust and that presence is sufficient to support the conviction. State v. Jefferson, 391 S.W.2d 885 (Mo.1965); State v. Young, 427 S.W.2d 510 (Mo.1968). “Even a modicum of the drug in possession is sufficient for conviction.” State v. Kuhrts, 571 S.W.2d 709, 715 (Mo.App.1978).

Defendant argues that the possibility of the presence of only ½% of amphetamine in the compound means that the state did not present sufficient evidence that the defendant was knowingly, intentionally, and consciously in possession of the controlled substance. He relies upon State v. Polk, 529 S.W.2d 490 (Mo.App.1975) in which “traces” of heroin were found in capsules found in the jewel box of one of three persons with whom the defendant rented an apartment in the defendant’s name. That case of constructive possession is clearly distinguishable. State v. Padgett, 557 S.W.2d 731 (Mo.App.1977). Here it was found the defendant had personal possession of an envelope containing approximately 100 pills, identical in appearance, from which one pill and the dust were found to contain the controlled substance. The defendant’s guilty knowledge can be inferred from the circumstances, including his request of Deputy Smith to destroy the evidence. State v. Burns, 457 S.W.2d 721 (Mo.1970); State v. Conti, 573 S.W.2d 95 (Mo.App.1978).

The defendant in the closing portion of his brief argues that since the state did not establish the amphetamine strength of the compound, a submissible case was not made because the pills could have been on the exempt list. This contention is not included in his “points relied on” and is not preserved for review. However, this argument has been answered against the defendant by Statute (§ 195.180 RSMo, V.A. M.S.) and decision. The burden to prove an exception was upon the defendant. State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977); State v. Hubble, 494 S.W.2d 358 (Mo.App.1973).

After the same was heard by the court and counsel in chambers, the state was permitted to play to the jury a portion of a cassette tape recorded by the unit under the couch. This was over the objection of the defendant that extensive portions of the tape were inaudible and unintelligible. That objection is preserved on appeal. This contention has been succinctly answered. “That some portions of the tapes were inaudible does not necessarily render the entire conversation inadmissible; that question was for the trial judge to determine in his discretion.” United States v. Weiser, 428 F.2d 932, 937 (2nd Cir.1969). Defendant did not deny making the statements contained on the audible portion of the tape. He admitted he might have said “those words to her” and proceeded to explain why. He made no effort to establish that the tape contained or should have contained anything favorable to him. “In addition, appellant testified and did not deny that he said what was audible on the tapes, and although he stated the recordings were not complete, he did not attempt to point out specific matters favorable to him which were not audible. . . . The trial court properly declined to exclude the tape recordings for this reason.” State v. Spica, 389 S.W.2d 35, 49 (Mo.1965).

In his motion for new trial and brief the defendant contends the trial court erred in admitting the tape because it had not been produced in response to his request for disclosure. Along the same line, there was evidence photographs were made of what appeared to be a smudged fingerprint on the blue envelope. The photographs were given to Deputy Goodwin. There were no further questions or testimony concerning the smudge or photographs. Also in his motion for new trial and brief, the defendant seeks to convict the trial court of error for not requiring the state to produce the photographs.

The failure of the state to comply with the request for discovery is not to be condoned. However, it does not follow the trial court erred or that the judgment should be reversed. “[I]t was defendant’s responsibility to call this failure to the court’s attention . . . .” State v. Davis, 556 S.W.2d 45, 47 (Mo. banc 1977). The sanction to be imposed is within the discretion of the court. State v. Davis, 572 S.W.2d 243 (Mo.App.1978). The trial court did not err in admitting the tape because it had not been produced when no objection was made on that basis. State v. Lang, 515 S.W.2d 507 (Mo.1974). The trial court did not err in not requiring the production of the photographs (if they were subject to the rule) when defendant first raised the point in a motion for a new trial. “Allegations of error and a motion for a new trial must be based upon objections made at trial, e. g., State v. Jones, 515 S.W.2d 504 (Mo.1974).” State v. Gadbury, 558 S.W.2d 426, 427 (Mo.App.1977). Also State v. Merritt, 564 S.W.2d 77 (Mo.App.1978). These contentions of the defendant must be denied.

Defendant’s last contention is that the trial court erred in admitting Exhibit 4 because that controlled substance list was not shown to be in force on the date of the offense nor to have been published as required. Exhibit 4 was certified to be “Missouri Controlled Substance List—1975 filed in this office by the Missouri Department of Social Services Division of Health October 1975”. The first page of the list is stamped “Refiled March 24, 1976”. The certification is dated April 6, 1976. Without specificity defendant asserts that the schedule was not published as required by §§ 536.021 and 536.023 RSMo, V.A.M.S. § 536.021 prescribed in general the procedure required for making, amending or rescinding a rule after the effective date of the act January 1, 1976. § 536.023 provides for the procedure for the numbering, indexing and form of rules. It further required that all rules on file January 1, 1976, which did not conform to the prescribed standards be rewritten and refiled within 90 days and “the rewritten rules shall become effective immediately upon refiling without following the provisions of Section 536.021”. It was not necessary that the procedures prescribed by § 536.021 be followed upon the refiling of the schedule. Courts may take judicial notice of the Code of State Regulations. § 536.031-[5]. The schedule in question was originally filed January 31, 1972. It was refiled on March 24, 1976. It was not amended between October 18, 1975, and January 13, 1977. The schedule was properly admitted. State v. Harris, 564 S.W.2d 561 (Mo.App.1978); State v. Winters, 525 S.W.2d 417 (Mo.App.1975). The judgment is affirmed.

All concur.

      . In this connection even where a prescribed quantity is an element of the offense, it is not necessarily required that a chemist analyze each pill in the envelope. “But where similar issues involving narcotics have been raised in other jurisdictions, it has been held that where a sample is tested and the evidence reasonably produces a logical and legitimate deduction of the fact required to be proved, a submissible case is made and the issue is one for the jury.” State v. Edwards, 521 S.W.2d 474, 477 (Mo.App.1975). For a discussion of this topic in a case where tests of 16 out of 1000 pills were found to establish the presence of 200 grams of barbituric acid see People v. Yosell, 53 Ill. App.3d 289, 11 Ill.Dec. 184, 368 N.E.2d 735 (1977).


author: REINHARD, Presiding Judge.

text:
    Larry DeLOCH, Appellant, v. STATE of Missouri, Respondent.
    No. 40104.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    John J. Allan, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from the denial of his Rule 27.26 Motion to Vacate Judgment and Sentence. He has raised one point of alleged error. As we find it to be without merit, we affirm the trial court’s denial of the motion.

The facts leading to movant’s conviction are found in State v. DeLoch, 554 S.W.2d 559 (Mo.App.1977). Briefly, a jury convicted the movant of three counts of felonious wounding and one count of operating a motor vehicle without the consent of the owner. He received sentences of four years imprisonment on each count of felonious wounding, these sentences to run consecutively, and four years imprisonment for operating a motor vehicle without the consent of the owner, this sentence to run concurrently with the other counts.

On appeal movant contends he was illegally placed twice in jeopardy for the same offense, in that his conviction for the three counts of felonious wounding arose out of a single act on his part and therefore he should only have been tried for one offense. Movant apparently raised this issue at his trial and in his motion for new trial, but did not raise it in his direct appeal to this court following his conviction.

We have previously held that a claim of double-jeopardy is not cognizable in a post conviction motion to vacate judgment and sentence. Williams v. State, 567 S.W.2d 370, 371 (Mo.App.1978). Accord Barker v. Ohio, 328 F.2d 582, 585 (6th Cir. 1964); Velazquez v. Sanford, 150 F.2d 491, 493 (5th Cir. 1945); Crapo v. Johnston, 144 F.2d 863, 864 (9th Cir. 1944) cert. denied 323 U.S. 785, 65 S.Ct. 267, 89 L.Ed. 626 (1944). Therefore, movant is precluded from obtaining relief under Rule 27.26 for his double-jeopardy claim.

Although not obliged to do so, we have considered the merits of movant’s contention and find the rule announced in State v. Whitley, 382 S.W.2d 665 (Mo.1964) disposi-tive of this case. In Whitley, the State charged the defendant with three counts of manslaughter after he drove his vehicle into another automobile killing three of its occupants. The court stated:

Most courts hold that there are as many separate and distinct offenses as there are persons injured or killed by the unlawful operation of a motor vehicle, so that successive prosecutions may be instituted against the person who committed unlawful act without violating the rule against double or former jeopardy.

Id. at 667.

Here, while fleeing from police officers, the movant collided with another automobile injuring the driver and two passengers therein. Under the rule of Whitley, which we are bound to follow, movant may constitutionally be convicted of three counts of felonious wounding where his one separate act resulted in injury to three different persons. We rule this point against mov-ant.

Movant finally contends that the imposition of three sentences for felonious wounding violates his rights to equal protection. We have reviewed this contention and find it to be without merit.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . The Western District of this court took a contrary position in Weir v. State, No. KCD 30,018 (Mo.App.W.D., February 21, 1979) transferred April 2, 1979.


author: GUNN, Judge.

text:
    John M. SWEAZEA, Appellant, v. STATE of Missouri, Respondent.
    No. 40244.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.

      Peter Lumaghi, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Teresa Aloi Angle, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant appeals the trial court’s denial of his Rule 27.26 motion without evidentiary hearing. The motion arises out of movant’s conviction for first degree robbery and second degree burglary, affirmed in State v. Sweazea, 555 S.W.2d 670 (Mo.App.1977). His appeal charges that the trial court erred in failing to appoint counsel to assist in the preparation of his motion, in failing to hold an evidentiary hearing and failing to make findings of fact and conclusions of law. We affirm.

Movant relies on Fields v. State, 572 S.W.2d 477 (Mo.banc 1978), which mandates that the trial court appoint counsel for indigent movants and to make findings of fact and conclusions of law in all 27.26 motions. But movant’s motion was filed prior to Fields, and its directives are prospective only. Thus, the failure to appoint counsel and make specific findings of fact and conclusions of law was not clearly erroneous. Baker v. State, 584 S.W.2d 65 (Mo.banc 1979).

Under the law applicable at the time of the motion, in order to receive the benefit of an evidentiary hearing and appointment of counsel the movant had to plead facts, not conclusions, which, if true, would warrant relief, and the factual allegations must not be refuted by the record. Wilson v. State, 582 S.W.2d 725 (Mo.App.1979); Allen v. State, 582 S.W.2d 361 (Mo.App.1979). Here, the movant has failed to plead sufficient factual allegations to warrant an evidentiary hearing, and the summary denial of the motion is equivalent to the findings of fact and conclusions of law required by Rule 27.26(i). Wilson v. State, supra.

Movant asserts that he was denied effective assistance of counsel through inadequate trial preparation. He alleges that his counsel spent one hour conferring with him and failed to interview two alleged alibi witnesses. Both allegations, even if true, would not merit relief. Absent the necessary showing that more time would have benefitted him, movant’s contention that counsel spent one hour in conference with him is an insufficient basis for granting relief. Cox v. State, 572 S.W.2d 631 (Mo.App.1978); Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977). Movant’s reliance on Rodgers v. State, 567 S.W.2d 634 (Mo.banc 1978), is misplaced. Rodgers is readily distinguishable. In Rodgers, it was alleged that counsel failed to confer with movant or investigate his case prior to the day of trial. The record here is otherwise. Movant acknowledges at least three conferences with his counsel over an eight month period. Several potential defense witnesses were interviewed and trial strategy was discussed. Likewise, the assertion that counsel failed to interview his brother and sister-in-law as potential alibi witnesses also affords no basis for relief. Movant not only failed to state in his motion the expectant testimony of his family members but repeatedly refused to disclose to defense counsel the substance of the testimony. His conclusional allegation that his brother and sister-in-law would provide an alibi defense is factually insufficient. Allen v. State, supra. Sherrill v. State, 515 S.W.2d 611 (Mo.App.1974). Moreover, counsel’s decision not to interview the family members was specifically a matter of trial strategy and within his professional judgment. As such, it does not provide a basis for an ineffective assistance of counsel claim. Allen v. State, supra; Cage v. State, 573 S.W.2d 73 (Mo.App.1978); Williams v. State, 566 S.W.2d 241 (Mo.App.1978).

Movant also charges ineffective assistance of counsel by reason of the failure to request a psychiatric examination. But the record is barren of any indication that movant had discussed his mental problems with his counsel or that there was any basis for asserting an insanity defense. Thus, there was no breach of duty owed to mov-ant. McDonald v. State, 572 S.W.2d 633 (Mo.App.1978); Charles v. State, 570 S.W.2d 700 (Mo.App.1978).

Nor does movant’s challenge to the trial court’s denial of his pro se request for a psychiatric examination on the day of trial afford any basis for 27.26 relief, as the alleged wrongful denial asserts trial court error — a matter for direct appeal. Williams v. State, 567 S.W.2d 370 (Mo.App.1978); Plant v. State, 547 S.W.2d 835 (Mo.App.1977).

Finally, movant’s challenge to the trial court’s denial of his pro se motion to disqualify the judge on the day of trial is again a complaint of trial court error, thus a matter for direct appeal, not 27.26 relief. Williams v. State, supra. His conclusional allegation that the denial of his disqualification motion deprived him of a fair trial does not make his claim reviewable in a post-conviction motion. Crawford v. State, 554 S.W.2d 491 (Mo.App.1977).

Judgment affirmed.

REINHARD, P. J., and GRIST, J., concur.

      . The motion was filed February 9, 1978; Fields was effective November 6, 1978.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Ernest Zep ROBINSON, Appellant.
    No. 40358.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    Nancy H. Grove, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

A jury convicted defendant of burglary in the second degree. Punishment was assessed at ten years imprisonment under the Second Offender Act.

We reverse and remand for a new trial.

At the time of the burglary in November, 1976, William Poston was branch manager of the Department of Revenue office which defendant allegedly burglarized. During direct examination, Poston was asked approximately how much money was taken during the commission of the burglary. Over defendant’s objection that Poston had no personal knowledge of the matter, Po-ston responded that approximately $27,-000.00 was taken. During cross-examination, Poston testified that he did not personally conduct an audit or make a computation prior to arriving at the $27,000.00 figure; he was told that sum by other people. After Poston gave such testimony, defendant moved for a mistrial and requested that the witness’s earlier testimony concerning the amount of money missing be stricken from the record. The court overruled the mistrial motion but reserved its ruling on the motion to strike.

Thereafter, Poston reiterated that he had not made any personal inventory of the loss. His testimony that $27,000.00 was taken was based upon tapes prepared by independent auditors during the course of their official audit and viewed by Poston as manager. Poston was aware, in general terms, of the amount of money maintained overnight, but the $27,000.00 figure came from his examination of the tapes that were compiled by independent auditors. The court then overruled the defendant’s renewed motion for mistrial and motion to strike the earlier testimony, indicating that the court was relying upon the business records exception to the hearsay rule. However, the tapes were never offered into evidence as business records under Section 490.680, RSMo. 1978. No foundation was laid for the admittance of such tapes into evidence as business records.

We believe Poston’s testimony, $27,000.00 was taken, is inadmissible hearsay. State v. Dixon, 420 S.W.2d 267 (Mo.1967). However, though subject to exclusion upon proper objection, the admission of hearsay which does not have a decisive effect on the jury or result in a miscarriage of justice is not prejudicial error. State v. Montgomery, 571 S.W.2d 784, 788 (Mo.App.1978); State v. Mills, 521 S.W.2d 495, 497 (Mo.App.1975).

Defendant was charged with burglary in the second degree. Such offense does not necessitate proof of the value of property taken during the course of its commission. It is an established rule that the property within the burglarized premises need not be of any particular value so long as it has some value. State v. Stead, 473 S.W.2d 714, 715 (Mo.1971).

Evidence which tends to draw the attention of the jury away from the issue it was called upon to resolve should be excluded. State v. Proctor, 546 S.W.2d 544, 545 (Mo.App.1977). At the time the hearsay testimony was offered, there was evidence before the jury that a sum of money had been taken. We cannot say that the admission of inadmissible hearsay to prove a theft in the amount of $27,000.00 was not prejudical as tending to draw the attention of the jury away from the factual issues before it and to emphasize the theft of a large sum of money.

In State v. Dixon, supra, the defendant, charged with burglary second degree and stealing, was granted a new trial because the trial court failed to strike a witness’s testimony that $21.00 in change and two bottles of whiskey were missing from his store. His knowledge of the amount of the money stolen was based upon information conveyed to him by a notation made by the night man at closing time and left with the cash register. No business practice was established as to a standard amount customarily left in the register. His testimony as to the missing whiskey was based upon the fact that the night man had told him the shelves were refilled and a notation indicated two bottles were replaced. The appellate court held the testimony was not based upon personal knowledge and its admission constituted reversible error upon both the burglary and stealing convictions.

We cannot conclude the erroneous admission of the hearsay testimony in the instant case was not a decisive factor in the jury’s verdict. The admission lacks any saving quality such as the use of the hearsay statement to impeach or as mere corroboration. Absent such saving quality, the admission is reversible error. State v. Favell, 536 S.W.2d 47, 51 (Mo.App.1976).

Having found reason to reverse, we do not deem it expedient to answer defendant’s other point relied on.

The judgment is reversed and remanded for new trial.

REINHARD, P. J., and GUNN, J., concur.


text:
    Peter FOWLER, Appellant, v. STATE of Missouri, Respondent.
    No. 41102.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    Leonard W. Buckley, Jr., St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, James Cumbee, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Maureen Dickmann, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from an order of the Circuit Court denying his Rule 27.26 Motion to Vacate Judgment and Sentence.

In 1976 movant was tried and convicted by a jury of robbery first degree; the jury assessed punishment at ten years in the Department of Corrections. We affirmed that conviction on appeal. State v. Fowler, 558 S.W.2d 366 (Mo.App.1977).

On July 7,1978, movant filed a Rule 27.26 motion. He alleges numerous grounds why both his trial counsel and his attorney on appeal were ineffective. He also pleads bias by the trial court and a conspiracy against him involving the circuit judge and his attorneys. After conducting an eviden-tiary hearing, the trial court denied his motion, finding that the attorneys “adequately and competently represented the movant.” The court made no findings pertaining to the charges of bias and conspiracy.

On appeal, movant urges that the findings of fact and conclusions of law did not address all the issues raised by the motion, and that they were not supported by the evidence.

The findings of fact and conclusions of law in this case were filed nine days after our Supreme Court ruled in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978). In Fields the Supreme Court again examined the issue of the need for findings of fact and conclusions of law in Rule 27.26 motions. The court decided that in order to insure finality under the provisions of Rule 27.-26(d) and to avoid multiple motions by the same movant advancing the same grounds of collateral attack, specific findings of fact and conclusions of law were required.

In the instant case, we believe that the findings of fact and conclusions of law are insufficient to comply with the mandate of Fields. The court found that the attorneys “ ‘adequately and competently represented the movant.’ ” We therefore reverse the order of the circuit court and remand for more specific findings of fact and conclusions of law on the allegations concerning effective assistance of counsel.

Having decided that the trial court’s findings of fact and conclusions of law do not satisfy the rule promulgated in Fields, we do not reach movant’s second point that the findings of fact and conclusions of law are not supported by the evidence.

Reversed and remanded for more specific findings of fact and conclusions of law.

GUNN and CRIST, JJ., concur.

      . Even before Fields, a similar finding that “movant did have effective assistance of counsel at the time said plea was entered” was held to be insufficient in Porter v. State, 504 S.W.2d 30, 33 (Mo.1974).

      . No error was committed by the trial court in not making findings concerning the allegations of bias and conspiracy. The movant’s testimony was the only evidence on these issues and he stated no facts relating to these assertions. This amounted to no substantive evidence to support these charges; therefore the court was not required to make findings of fact. Haynes v. State, 561 S.W.2d 450, 451 (Mo.App.1978).


text:
    STATE of Missouri, Respondent, v. James J. ROKITA, Appellant.
    No. 41164.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    Daniel R. Devereaux, Devereaux & Stokes, St. Louis, for appellant.
    George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from an order of the circuit court of the City of St. Louis dismissing his appeal from a misdemeanor conviction in the Magistrate Court. On September 28, 1978 defendant was found guilty of the sale of obscene materials and fined $500 in the magistrate court of the City of St. Louis. On the same date the Magistrate Judge entered the following order: “Deft cont 10/10/78 for file motion to appeal [sic].” A motion for new trial was filed with the magistrate court on October 10 and denied the same day. On October 20, defendant filed his notice of appeal with the circuit court, whereupon the prosecuting attorney successfully moved for a dismissal of the appeal as untimely filed, pursuant to Missouri Supreme Court Rule 22.-10.

On appeal to this court, defendant maintains that the ten day limitation of Rule 22.10 on filing criminal appeals from magistrate court began to run only after his motion for a new trial was denied, and that, by analogy with the rules of procedure in the circuit court, the magistrate court judgment was not final and appealable until the motion for a new trial either had been passed on or the time granted for filing the same had expired. We cannot agree.

The authorities cited by defendant to the effect that appeals from judgments entered prior to the disposition of a motion for new trial are premature for want of a final, appealable judgment (see e. g. State v. Hicks, 438 S.W.2d 215 (Mo.1969)), deal with circuit court proceedings, and, as such, are not germane to post-trial procedure in the magistrate court.

The right of appeal in a criminal case is purely statutory as no such rights existed at common law, State ex rel. Garnholz v. LaDriere, 299 S.W.2d 512, 515 (Mo. banc 1957); State ex rel. Moberly v. Dorris, 223 Mo.App. 159, 9 S.W.2d 820, 821 (1928) and unless the statute is complied with, the appellate court cannot acquire jurisdiction of the cause. State ex rel. Moberly v. Dorris, supra at 821.

The relevant statute, in effect at the time of the trial and attempted appeal of this case, Sec. 543.290 RSMo 1969 provides as follows:

1. Any person convicted before a magistrate for any misdemeanor may appeal to the circuit or other court having jurisdiction in criminal cases, if he shall file, within ten days after judgment is rendered, an application stating that he is aggrieved by the verdict and judgment in the case and that appeal is not taken for vexation or delay.

Supreme Court Rule 22.10 provides:

Any person who is convicted in a magistrate court for any misdemeanor shall be entitled to appeal therefrom to the circuit court in the county. The appeal shall be taken within ten days after judgment is rendered by filing, within such time, a notice of appeal with the clerk of the magistrate court.

We find nothing in the statutes, Supreme Court Rules or cases which leads us to the conclusion that the Magistrate Judge can extend the ten day period. Neither do we find authority for defendant’s contention that the filing of a motion for new trial in the magistrate court extended that period. Since the time had expired for the filing of the notice of appeal, the circuit court was without jurisdiction and properly dismissed the appeal.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . The trial, attempted appeal and dismissal in the circuit court occurred prior to the effective date of the new Judicial Article and the implementing statutes.


author: SMITH, Judge.

text:
    DONZE LAKE DEVELOPMENT CORPORATION, INC., a Missouri Corporation, Xavier F. Grither and Norma T. Grither, his wife, and Alvin C. Donze and Lily Mae Donze, his wife, Plaintiffs-Respondents, v. Clarence HOLLIDAY and Doris Holliday et ux. and et al., Defendants-Appellants.
    No. 39845.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 2, 1979.

      Limbaugh, Limbaugh & Russell, Wm. L. Syler, Jr., Cape Girardeau, for defendants-appellants.
    Claude C. Knight, St. Charles, for plaintiffs-respondents.
   SMITH, Judge.

Defendants appeal from the judgment of the trial court quieting title in plaintiffs to a twenty plus acre tract of land in Ste. Genevieve County. We affirm.

Defendants’ initial point is that their “paper” title was better than plaintiffs’ and the trial court erred in finding the contrary. At the beginning of the trial, the parties and the court engaged in a lengthy colloquy to stipulate to certain matters. Included in the stipulation were the respective chains of title of each of the parties and the legal description of the property. The following also ensued:

“Mr. Mcllrath [defendants’ attorney]: Yes: comes to that, who exercises control over. Its purely a question after that.
The Court: Whether or not your people have acquired it by adverse possession is that it boils down to?
Mr. Mcllrath: Yes.”

Defendants contend the stipulation reached only to the links in the chains of title and not to the strength of those links. We believe, however, that the above statements by defense counsel were a concession that plaintiffs’ title was the better title and that defendants’ right to the property depended on their being able to establish adverse possession. Such a judicial admission obviates the need for further proof of the admitted fact. Young v. Frozen Foods Express, Inc., 444 S.W.2d 35 (Mo.App.1969).

In addition the record before us fully supports the trial court’s finding. Plaintiffs’ chain of title originates with a Spanish land grant in 1796, of 7056 arpens (6002.6 acres) to a Madame Villars, head of a family. This grant was supported by a certified survey by the Surveyor General of Upper Louisiana in 1799. In 1805 the Congress passed an act to secure to persons who had received land grants within the Louisiana territory, all the rights which had been acquired by them under the dominion of France or Spain. 2 Stat. 324. Under the provision which applied to Madame Villars, such persons “shall be confirmed in their claims to such lands in the same manner as if their titles had been completed.” Subsequently supplements to this act were passed. 2 Stat. 391, 2 Stat. 440, 2 Stat. 748. Proceedings were begun in 1806 by Madame Villars to have her claim confirmed by a board of commissioners appointed for that purpose. This was ultimately accomplished in 1836 by Act of Congress which approved the confirmation recommendation of the board. 5 Stat. 126. See also 4 Stat. 565, 4 Stat. 661.

In 1811, the Congress provided for survey of public lands in the Louisiana Territory and provided for sale of the public lands to the highest bidder except for section 16 of each township which was reserved for “support of schools.” 2 Stat. 662. In 1820 the Congress enacted the Admission Act for the State of Missouri and therein granted to the State “[t]hat section numbered sixteen in every township, and when such section has been sold, or otherwise disposed of, other lands equivalent thereto for the use of schools.” (Emphasis supplied) 3 Stat. 545. The land in dispute is located in Sec. 16. Defendants trace their chain of title to patents granted by the State in 1907 and 1912 to T. J. Moss Tie Company — defendants’ predecessor in title.

In Glasgow v. Baker, 128 U.S. 560, 9 S.Ct. 154, 32 L.Ed. 513 (1888) the Supreme Court, in dealing with a similar problem arising under an act in 1812 (2 Stat. 748), held that the acts of Congress providing for confirmation of titles acquired prior to the Louisiana Purchase in 1803, divested the United States of title to those lands at the time of those acts. The subsequent grants to the State of Missouri of section 16 were invalid as to that land covered by confirmable grants because the United States had no title to convey. See also Stoddard et al. v. Chambers, 2 How. 284, 43 U.S. 284, 11 L.Ed. 269 (1844); Bissell v. Penrose, 8 How. 317, 49 U.S. 317, 12 L.Ed. 1095 (1850); Smith v. United States, 10 Pet. 326, 35 U.S. 326, 9 L.Ed. 442 (1836); and United States v. Clarke, 8 Pet. 436, 33 U.S. 436, 8 L.Ed. 1001 (1834). Obviously, the State could not transfer title or ownership which it did not have. Plaintiffs’ title, originating from the Villars grant, is superior to defendants’ title arising from the Moss Tie patent. In their brief, defendants, while conceding the validity of the Villars grant and its confirmation, refer to an exhibit which they contend casts doubt upon the confirmation of a portion of the Spanish grant. From the exposition set forth in the brief, it appears that the exhibit refers to a private survey made nine years after the confirmation of the Villars grant. We do not understand nor do defendants explain how such a survey could affect the confirmed grant. At any rate, if a copy of the exhibit is before us it is so illegible that we are unable to determine what it is or what it says. We cannot base a conclusion contrary to that reached by the trial court upon a document which is either not before us or is so poorly copied that it is illegible. We find no error in the trial court’s finding on the better title.

Defendants’ next point is that because they .had better paper title, the trial court erred in placing the burden of proof of adverse possession upon them. Inasmuch as we have upheld the trial court’s finding that plaintiffs had the better title there is obviously no merit to this contention. Inferentially defendants contend the evidence supported their claim of adverse possession. The evidence does not establish the requisite continuing adverse possession and the trial court’s finding in this regard is fully supported by the evidence.

Defendants’ final point is that the trial court erred in admitting the testimony of plaintiffs’ surveyor because he did not begin his survey at an established government monument. We have difficulty understanding what prejudice arose from this claimed error inasmuch as the description of the property was stipulated to. Further, the defendants’ surveyor compared the survey he prepared with that of plaintiffs’ surveyor and indicated they appeared to show the same area in dispute. Because we have not been favored with these exhibits, we are unable to determine whether any conflict exists in the surveys. We presume that the trial court found no discrepancies of moment. We find no prejudical error in the admission of this testimony.

Judgment affirmed.

SNYDER, P. J., and PUDLOWSKI, J., concur.

      . Other reservations were also made but they are not pertinent to this case.


text:
    John and Janice KELLY, Appellants, v. BOYS’ CLUB OF ST. LOUIS, INC., Michael V. Janes, Anton Sestric, James A. Altodonna, Harry T. Bussman, Jr., Joseph W. Martino, Carl A. Enger, Eugene P. Slay, John Doe and Ken Wild, Defendants.
    No. 40058.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 2, 1979.

      Kroening, Mertz & McDaniel, J. Douglas McDaniel, St. Louis, for appellants.
    London, Greenberg & Fleming, C. John Pleban, Burton Greenburg, St. Louis, for defendants.
   SMITH, Judge.

Plaintiffs appeal from the action of the trial court in dismissing their five count petition seeking equitable and legal relief.

Plaintiffs are the owners of property including a home in Soulard Historic District contiguous to and across the street from property owned by defendant Boy’s Club. The defendants are the Boy’s Club, a pro forma corporation, and its Directors and Executive Director. The petition was based upon the claimed action of the Boy’s Club allowing buildings in the Soulard Historic District to deteriorate in order that the Boy’s Club could obtain authority to demolish them. Counts I, II and III sought in-junctive relief (1) to require Boy’s Club to protect and preserve the buildings, (2) to prevent demolition of the buildings and (3) to abate the nuisance by protecting and preserving the buildings. Count IV sought damages for nuisance and Count V sought damages for emotional distress.

Since the filing of the notice of appeal, the buildings have been demolished pursuant to authority from the City of St. Louis. This matter has been called to our attention by an uncontroverted affidavit which we may consider. Koch v. Board of Regents of Northwest Missouri State College, 265 S.W.2d 421 (Mo.App.1954). The relief sought in Counts I, II and III can no longer be provided and those Counts are moot.

Count IV alleges that the Boy’s Club permitted the buildings to deteriorate by evicting the tenants, by inviting the public to remove whatever they desired from the buildings, by failing to secure or board up the buildings, by refusing to allow neighbors to board up the buildings, by permitting weeds to grow upon the property and by permitting the property to be used for dumping rubbish and noxious materials. Several violations of city ordinances are alleged. The result of this conduct, it is pleaded, has been to knowingly encourage vandalism, destruction, and arson on the defendant’s property, to create a breeding ground for rats, insects and other health hazards, to create a fire hazard, and to bring into the neighborhood vandals, arsonists and other undesirables. Plaintiffs allege that the actions of the Boy’s Club have resulted in plaintiffs’ home being damaged, their personal property being stolen, their peace being disturbed, their health being impaired, their property being reduced in value, and their suffering great distress and fear for their well being and safety. Damages, actual and punitive, are sought.

In Count V plaintiffs allege that the conduct of defendants was “willful, extreme, outrageous, wanton, and beyond all possible bounds of decency” and has affected plaintiffs’ mental and emotional well being and that plaintiffs have incurred physical and mental harm as a result of stress and fear.

Defendants have raised several contentions in support of the trial court’s action. We need not consider those which relate solely to whether the buildings could be demolished under the City ordinances. The first contention we need consider is that plaintiffs’ petition fails to state a cause of action as to both Counts IV and V. As to the latter we agree, as to the former we disagree.

Taking Count V first, plaintiffs have sought to premise recovery upon the tort of outrageous conduct causing severe emotional distress. Missouri recognized this tort in Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo.1965) in which the Supreme Court adopted the position of Restatement (Second) of Torts, § 46 (1965). See also Watson v. Franklin Finance, 540 S.W.2d 186 (Mo.App.1976). We find it unnecessary to decide whether the conduct alleged reaches the level of outrage necessary to support such a cause of action. The tort requires that the outrageous actions be committed “intentionally or recklessly” with the desire to inflict severe emotional distress or in deliberate disregard of a high degree of probability that the emotional distress will follow. Sec. 46 Restatement, supra, Comment i. There is no allegation in plaintiffs’ petition that such intent existed, or that defendants acted recklessly as above defined. There is no allegation that the conduct of defendants was engaged in with any intent to injure anyone, particularly plaintiffs, or with knowledge that it would have a high probability to do so. The petition alleges only that defendants engaged in a course of conduct for their own benefit, not directed toward plaintiffs but in disregard of their rights, which caused plaintiffs to suffer emotional upset. We do not find this sufficient to state a cause of action.

We turn to Count IV. “At common law, a ‘nuisance’ is a wrong arising from an unreasonable or unlawful use of property to the discomfort, annoyance, inconvenience or damage of another, and usually comprehends continuous or recurrent acts.” Meinecke v. Stallsworth, 483 S.W.2d 633 (Mo.App.1972) [6]; “It is the law that one may not make such an unreasonable, unusual or unnatural use of his property that it substantially impairs the right of another to peacefully enjoy his property.” City of Fredericktown v. Osborn, 429 S.W.2d 17 (Mo.App.1968) [2-7]. In every case the question is one of reasonableness of use and that determination depends upon the facts and circumstances of each case. Clinic and Hospital v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384 (1951) [8-11]. Plaintiffs here have alleged that defendants intentionally and deliberately allowed residential buildings located in a residential neighborhood to seriously deteriorate, to become a health hazard, and to become a haven for vandals, arsonists and undesirables. The activities included failure to obey city ordinances and refusal to permit other persons to protect the property. The allegations sufficiently plead an unreasonable, unusual and unlawful use of the buildings causing discomfort, annoyance, inconvenience and damage to the plaintiffs. The allegations are sufficient to state a cause of action for nuisance. City of Fredericktown v. Osborn, supra; Clinic and Hospital v. McConnell, supra.

Defendants contend that the nuisance alleged is a public one and plaintiffs lack standing to challenge it. But a private person may pursue an action in nuisance even as to a public nuisance if he suffers a special injury not common to the public generally. Clinic and Hospital v. McConnell, supra; Shelton v. Lentz, 191 Mo.App. 699, 178 S.W. 243 (1915). Whether this nuisance as alleged be deemed public or private, plaintiffs have asserted special injury to themselves and their property based upon their proximity to the nuisance.

Defendants contend they are not responsible for the criminal actions of third parties such as arsonists and vandals. Some causal connection must exist between the acts of the defendants and the nuisance complained of. State ex rel. Weatherby v. Dick & Bros. Quincy Brewing Co., 270 Mo. 100, 192 S.W. 1022 (1917); Bellflower v. Pennise, 548 F.2d 776 (8 Cir. 1977). However, that causal connection is met if the defendants had reasonable anticipation of harm and failed to exercise reasonable care to avert such harm. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976). Here it is alleged that defendants had such knowledge, did nothing to avert the dangers and in fact affirmatively encouraged such depredations. If the allegations are true, as we must presume them to be for purposes of a motion to dismiss, the reasonableness of defendants’ activities and conduct is a question of fact for the fact finder. A property owner cannot knowingly allow his property to become a haven for criminals to the detriment of his neighbors and deny that his property has become a nuisance because the resulting criminal activities are those of third parties. Additionally, the allegations of vermin infestation, health dangers, and fire hazards do not involve the actions of third parties but rather the action or inaction of defendants and are in themselves sufficient to support a claim of nuisance. Ruppel v. Ralston Purina Co., 423 S.W.2d 752 (Mo.1968); People v. Oliver, 86 Cal.App.2d 885, 195 P.2d 926 (1948); Pucci v. Algiere, 106 R.I. 411, 261 A.2d 1 (1970).

Defendants contend also that plaintiffs’ petition is barred under the doctrine of res judicata because of the prior decision in Dempsey v. Boys’ Club of City of St. Louis, Inc., 558 S.W.2d 262 (Mo.App.1977) in which plaintiffs were also parties plaintiff. That case was remanded by this court for further proceedings. The record before us does not reveal what the present status of that case is — i. e. is it still pending or has it become final. Res judicata is an affirmative defense and the burden is upon defendants to establish its applicability including the finality of the prior judgment. Rule 55.08. They have not done so here.

Additionally, the Dempsey case involved a review of the action of an administrative body — the Board of Adjustment of the City of St. Louis- — -which had ordered a permit to demolish the buildings be issued. In its judgment in that case the trial court ordered one count dismissed as improperly joined. That count sought equitable relief to prevent the destruction of the buildings because Boys Club had permitted the property to deteriorate. That was the only litigated count which could be considered to have raised a nuisance type claim. The trial court held the joinder of the equitable count was improper in a proceeding to review the decision of an administrative body. On appeal we held the count moot because the matters raised therein could propérly be considered by the Board of Adjustment on remand in determining the propriety of issuing a permit for demolition.

The action for nuisance is a separate and distinct cause of action from that for review of an administrative decision. Res judicata precludes relitigation of the same cause of action between the same parties. Smith v. Preis, 396 S.W.2d 636 (Mo.1965) [4—7]. The causes of action in Dempsey and here are not the same. Collateral estoppel precludes relitigation of the same issue already decided as between the same parties. Smith v. Preis, supra. No issue of fact was resolved in the initial trial court judgment or on appeal concerning the presently asserted claim of nuisance. The Board of Adjustment, of course, had no authority to make a judicial determination of plaintiffs’ claim for damages because of defendants’ alleged nuisance and whatever it did upon remand of the Dempsey case could have no effect on the present common law cause of action. Nor have plaintiffs split their cause of action inasmuch as there is not a single cause of action but two distinct ones. Chuning v. Calvert, 452 S.W.2d 580 (Mo.App.1970) [7-9].

Our review of the record and consideration of the matters briefed by the parties convinces us that the trial court correctly dismissed Count V and erroneously dismissed Count IV.

Judgment as to Counts I, II, III and V is affirmed, judgment as to Count IV is reversed and remanded.

SNYDER, P. J., and PUDLOWSKI, J., concur.

      . Plaintiffs in their intervening petition raised a nuisance contention but that petition and the motion to intervene were withdrawn when plaintiffs were joined as additional plaintiffs. There were therefore no claims of nuisance before the trial court in the Dempsey case.


author: SNYDER, Judge.

text:
    In re the MARRIAGE OF Sally A. WALDRUP and Eddie Joe Waldrup. Sally A. WALDRUP, Petitioner-Respondent, v. Eddie Joe WALDRUP, Respondent-Appellant.
    No. 40858.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    Theodore S. Schechter, Clayton, for respondent-appellant.
    David C. Godfrey, Clayton, for petitioner-respondent.
   SNYDER, Judge.

Respondent Sally Waldrup filed suit for dissolution of her marriage to appellant Eddie Joe Waldrup. The trial court ordered the dissolution, awarded respondent custody and child support, denied her petition for maintenance and attorney fees and divided the marital property. Appellant appeals from the order distributing the marital property, contending that the trial court abused its discretion in weighting the division in favor of the wife.

In appellate review of a judgment dividing marital property, two principles are firmly established. The first is that a just and equitable distribution is not necessarily an equal distribution. In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977). The second is that the appellate court must defer to the trial court’s superior opportunity to judge the credibility of witnesses and must sustain the trial court’s order unless there is no substantial evidence to support the judgment or the judgment is against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); In re Marriage of Strelow, 581 S.W.2d 426 (Mo.App.1979). Further, the power to set aside a decree or judgment on the ground that it is against the weight of the evidence should be exercised with caution and only with the firm belief that the decree or judgment is wrong. Murphy v. Carron, supra.

This court has read the transcript thoroughly and studied the briefs of both parties. The decision of the trial court is supported by substantial evidence and is not against the weight of the evidence; nor is there any error of law. There is no firm belief that the judgment is wrong.

An extended discussion of the facts would serve no purpose and an opinion would have no precedential value.

The judgment is affirmed in compliance with Rule 84.16(b).

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


text:
    William J. RAACK, Executor, etc., Appellant, v. Ruby ITALIANO, Respondent.
    No. 40897.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    William J. Raack, Clayton, pro se.
    L. W. Boschert, St. Charles, for respondent.
   REINHARD, Presiding Judge.

Appeal from an order of the circuit court of St. Charles County dismissing an appeal from .an order of the probate court allowing the claim of claimant-respondent Ruby Itali-ano against a certain estate then before it. The probate court allowed the claim on August 12, 1977, and executor-appellant filed his affidavit of appeal and designation of record with the probate court on September 9, 1977. The probate court allowed the appeal and transferred the cause to the circuit court on September 20. No further action was taken in the case by any party until April 24,1978, when claimant filed her motion to dismiss the appeal on the ground that the circuit court lacked jurisdiction to hear the appeal by virtue of the executor’s failure to perfect his appeal by paying the circuit court docket fee. The executor immediately paid the fee, but the circuit court thereafter granted claimant’s motion to dismiss after finding that the appeal was “not complete”, the docket fee not having been “paid within time.”

The question thus presented on this appeal is narrow — whether the failure to pay the circuit court docket fee within the thirty-day limit for taking appeals from probate to circuit court is fatal to the jurisdiction of the circuit court over the matter. We conclude that it is not, reverse the order dismissing the appeal and remand the cause.

Section 472.180 RSMo 1969, in effect when the events below took place, specifies that appeals from probate orders “shall be taken within 30 days” after the objectionable decision is made. It is clear that the filing of the affidavit for appeal required by § 472.210 constitutes the “taking” of the appeal, which act vests the circuit court with jurisdiction thereof, Poppa v. Poppa, 364 S.W.2d 52 (Mo.App.1962). The payment of the circuit court docket fee is addressed in § 472.240 (R.S.Mo.1969) in effect at the time pertinent to events in this case which provides only that the circuit clerk shall file the designated record certified by the probate court to the circuit court “upon payment by the appellant of the circuit court docket fee.” No time limit is expressly set by statute for the filing of the certified record or the payment of the docket fee, nor is there any statutory indication that the filing of the certified record constitutes the filing or the “taking” of the appeal.

The general principle informing our analysis of this question was expressed in Silver v. Estate of Silk, 538 S.W.2d 732 (Mo.App.1976), where this court noted that the statutes governing appeals from probate court were to be “liberally construed to ‘extend rather than restrict the statutory right to appeal’ ”, Id. at 733.

In Poppa v. Poppa, supra, objection was made to the circuit court’s jurisdiction to hear an appeal from probate court where there had been a six-month delay in the certification of the record to the circuit court. It was shown that the affidavit for appeal was timely filed, however. The court there held that the jurisdiction that vested in the circuit court upon the “taking” of the appeal by filing of the affidavit was not later divested by the failure to certify the designated record for six months. Similarly, in Jo B. Gardner, Inc. v. Beanland, 564 S.W.2d 632 (Mo.App.1978), the failure to file the statutorily required appeal bond within the thirty-day time limit was held not to defeat circuit court jurisdiction of the otherwise properly perfected appeal from probate court.

We discern no reason in law or logic for distinguishing failure to pay the circuit court docket fee from failure either to promptly secure a certification of the record or to file an appeal bond, as a basis for divesting the circuit court of jurisdiction to hear the appeal. Accordingly, we hold that failure to pay the circuit court docket fee within the thirty-day period for taking appeals to the circuit court does not defeat that court’s jurisdiction to hear the appeal.

Order reversed and cause remanded.

GUNN and CRIST, JJ., concur.