text:
    FALLERT TOOL & ENGINEERING COMPANY, INC., Plaintiff-Respondent-Appellant, v. Eugene F. McCLAIN and Jacqueline E. McClain, Defendants-Third Party Plaintiffs-Appellants-Respondents, v. Charles B. FALLERT and Catherine E. Fallert, Third Party Defendants-Respondents-Appellants.
    Nos. 39013, 39029.
    Missouri Court of Appeals, Eastern District, Division One.
    March 20, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      Frank N. Gundlach, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for plaintiff-respondent and appellant on defendant’s second counterclaim.
    William R. Kirby, St. Louis, for defendants-appellants on appeal.
    Paul Taub, St. Louis, for defendant-third party plaintiffs-appellants-respondents.
   SNYDER, Presiding Judge.

This is a fraud action brought by Fallert Tool and Engineering Company, Inc. (Fal-lert Tool), a corporation, against Eugene F. McClain and Jacqueline E. McClain, defendants. The dispute arises out of the sale of a machine shop business by the McClains to Fallert Tool. Fallert Tool’s petition contains two counts, the first for fraud and misrepresentation and the second for punitive damages. A third count for rescission of the contract was subsequently dismissed.

The McClains filed two counterclaims against Fallert Tool and Charles B. Fallert and his wife, Catherine E. Fallert, individually. The first counterclaim prayed for judgment on a note given in part payment of the purchase price; the second counterclaim sought replevin of the machine tools which were purchased by Fallert Tool.

The trial court, after jury verdicts, rendered judgment for $63,195 in favor of Fal-lert Tool on the fraud count of the petition and in favor of the McClains on the punitive damage count of the petition. There was a judgment in favor of the McClains on both their first and second counterclaims. The judgment on the first counterclaim on the note was in the sum of $57,195, including interest and attorneys’ fees.

The McClains appeal from the judgment in favor of Fallert Tool on count one of the petition. Fallert Tool and the Fallerts individually appeal from the judgment against them on the second counterclaim. The appeals were consolidated upon joint motion of the parties. No appeal was taken from the judgment on the note.

The McClains contend that the trial court erred in: (1) denying their motion for a directed verdict at the close of all the evidence and their motion for a new trial; (2) giving and reading to the jury the verdict-director, Instruction No. 3; (3) permitting evidence of a loan obtained by Fallert Tool and the interest it was required to pay; (4) admitting into evidence and reading to the jury a letter written by Fallert Tool to Eugene McClain; (5) permitting Charles Fallert to testify to self-serving questions, answers and conversations that he had with third persons; and (6) giving and reading to the jury damage Instruction No. 4.

Fallert Tool and the Fallerts individually claim that the trial court erred in not rendering judgment in their favor on the re-plevin counterclaim.

Affirmed in part; reversed in part.

The McClains, as sole proprietors, owned the McClain Tool Company from 1961 to 1974. They offered the business for sale in 1973 and listed it with an agency. They were unsuccessful in selling it and in early 1974 they listed it with a different agency who advertised the offer to sell in the St. Louis Post-Dispatch. In response to that advertisement, Charles B. Fallert visited with Eugene McClain at the machine shop which was located on Manchester Road in the City of St. Louis.

Charles Fallert had been a toolmaker at Emerson Electric Company for three years, then a toolroom foreman and a manufacturing engineer over a period beginning in 1941 and ending in 1973 when he left Emerson. He had always planned on opening up a tool and die shop of his own and it was with this ambition in mind that he answered the McClain advertisement.

During subsequent negotiations, Charles Fallert was permitted to inspect the inventory and machines after the closing hour of the shop, but McClain would not permit him to talk to any of the three employees. A price of $58,000 was finally agreed upon. Both parties were represented by counsel and a sales contract was drafted, revised three or four times, and finally signed by the parties. Charles Fallert formed the plaintiff corporation and took over the business in May of 1974.

In accordance with the sales contract, cash in the sum of $17,000 was paid when the sale was closed and a note for $41,000 with interest at eight per cent per annum was taken by the McClains for the balance of the purchase price. The note was signed by the Fallert Tool and Engineering Company, Inc. and the Fallerts individually.

The McClains retained the right to complete several open orders although the evidence was not clear as to the exact cut-off date. Eugene McClain also agreed to aid Charles Fallert by familiarizing him with the operation of the business. McClain continued to come to the shop regularly during the period from May to October of 1974 and during that time cooperated with Charles Fallert in the operation of the shop, in addition to completing the jobs which were reserved to McClain by the purchase contract. There was a dispute about whether McClain also took over some orders to which he was not entitled.

Charles Fallert began to make complaints to McClain about the time that McClain left the business for good, or so he thought, in October of 1974. Fallert complained specifically that McClain had misrepresented the business in five respects. The claimed misrepresentations related to statements by McClain as to the number of customers and customer relations, statements as to the amount of business being done by McClain with nongovernment customers, representations that all the work was done in the shop when much of it was subcontracted, statements overstating the value of the machines and equipment and the price originally paid for them and a representation that there were no financial records for the business when, in fact, full journals and ledgers were kept which were concealed from Fallert by McClain.

There were discussions between Eugene McClain and Charles Fallert concerning Fallert’s complaints and at one time Fallert proposed to return the machine shop to McClain if McClain would return the purchase price, which McClain refused to do.

The suit was filed by Fallert Tool on April 28, 1975 and the business ceased to operate late in the year 1975.

The McClains’ first point relied on is a claim that the trial court erred in overruling their motions for a directed verdict after the close of all the evidence and for a new trial. In six subpoints they contend that there was not substantial evidence to sustain the various misrepresentation charges of Fallert Tool and that two of the charges were not actionable because they were matters of opinion and not representations of fact.

The insufficiency of the evidence to support a verdict may be preserved for review by an appellate court only if the appellant files a motion for a directed verdict at the close of all the evidence and alleges the denial of that motion in a motion for a new trial. Millar v. Berg, 316 S.W.2d 499, 502[1-3] (Mo.1958); Herrman Lumber Company v. Cox, 521 S.W.2d 4, 6[3, 4] (Mo.App.1975). No motion for a directed verdict at the close of all the evidence was made as to Eugene McClain but an oral motion “to dismiss the petition totally as against Mrs. McClain . . . ” was made by counsel at the close of all the evidence. This will be considered as a motion for directed verdict as to Jacqueline McClain, but the trial court did not err in refusing to grant it.

Mr. and Mrs. McClain were the co-owners of the business. She signed the sales contract and was a party to it as “Eugene F. and Jacqueline McClain, (‘sellers’), doing business as ‘McClain Tool Company.’ ” Eugene F. McClain and Jacqueline McClain, his wife, were the payees of the promissory note in the amount of $41,000 given as part payment of the purchase price and signed by Fallert Tool and the Fallerts, individually, as guarantors. Mrs. McClain worked in the business as bookkeeper and, although the issue of partnership did not arise, there is evidence that the two McClains acted in concert. Because she signed it, Jacqueline McClain made the representations contained in the contract itself. She is also bound by the representations made by Eugene McClain during the negotiations leading up to the final transfer.

Even in the absence of a principal-agent or partnership relationship, a party not actually making the fraudulent representation is liable if he accepted the benefits of the transaction and had either actual or constructive knowledge at the time of the fraud, or at the time he accepted the benefits, that fraud had been committed. In 37 Am.Jur.2d Fraud and Deceit, § 305, it is stated that:

One will be held liable for fraud, however, if he has knowledge thereof and adopts or takes advantage of it. The same has been held to be true where a person participated in the fraud with only constructive knowledge thereof, at least as to liability for compensatory damages. [Emphasis added].

As the bookkeeper and a part-owner of the business, Mrs. McClain knew or should have known of the representations made by her husband.

Where one engages with others in a common enterprise he cannot avoid liability for deceit committed by his associates of which he had no knowledge, but of which he could have informed himself, where he participates in the benefit derived of such deceit. Hornblower v. Crandall, 7 Mo.App. 220, affirmed 78 Mo. 581 (1883). Thus, because there was sufficient evidence to support a verdict against Mrs. McClain, her motion for a directed verdict at the close of all the evidence as to Mrs. McClain was properly denied.

By failing to file a motion for a directed verdict at the close of all the evidence, Eugene McClain voluntarily submitted the issues to the jury and cannot complain on appeal that the evidence was insufficient for submission to support a verdict. Millar, supra.

The McClains also contend in the detailed recital of their first point that the submissions of the various allegations of fraud to the jury were not “actionable misrepresentations.” The McClains did not raise the issue regarding “actionable misrepresentations” in their motion for a new trial. Therefore, the issue has not been preserved for appellate review.

Rule 78.07 in force at the time of the trial provides that allegations of error, in order to be preserved for appellate review, must be included in a motion for a new trial, with certain exceptions, one of them being the sufficiency of the pleadings to state a claim. The McClains’ point may be a somewhat inartfully drafted allegation that the pleadings were insufficient to state a claim. The claim that neither respondents’ pleading nor their verdict-director stated “an actionable misrepresentation” is a claim that the pleading did not allege fraud and that the instruction improperly submitted the issue of fraud. The point raised concerning the instruction will be discussed later. If fraud was not pleaded, Fallert Tool did not state a cause of action in its petition. Because failure to state a claim is jurisdictional, an issue relating to this deficiency may be raised for the first time on appeal. Eilers v. Kodner Development Corporation, 513 S.W.2d 663, 665[1] (Mo.App.1974).

When the attack on the sufficiency of a petition is made for the first time on appeal, the pleading will be held good unless it wholly fails to state a claim. Sumpter v. J. E. Sieben Construction Company, 492 S.W.2d 150, 153 (Mo.App.1973). In this determination, the petition will be liberally construed, Nichols v. Pendley, 331 S.W.2d 673, 678[7] (Mo.App.1960), and will be found sufficient after a verdict “ ‘[i]f, after allowing reasonable inferences and matters necessarily implied from the facts stated, there is sufficient to advise defendant with reasonable certainty as to the cause of action it is called upon to meet and bar another action for the same subject matter.’ ” Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 44[3, 4] (Mo.App.1971). See also Brennaman v. Andes & Roberts Brothers Const. Co., 506 S.W.2d 462, 463 (Mo.App.1973) where the trial court dismissed for failure to state a cause of action and the appellate court reversed viewing the petition under these principles.

It is unnecessary to recite the well-known elements of fraud and the pertinent allegations of the petition. See, Ackmann v. Keeney-Toelle Real Estate Company, 401 S.W.2d 483, 488[2—5] (Mo. banc 1966) for these elements. Fallert Tool’s petition, examined with these principles in mind, stated facts which if true would be the basis of a finding of fraud.

However, the fact that the pleading was sufficient to state a cause of action does not necessarily mean that there was evidence to support the submission of each misrepresentation under Instruction No. 3. In their second point the McClains claim the trial court erred in giving and reading to the jury this instruction. Again the contention of Fallert Tool that this point has not been preserved for appellate review must be considered.

Only two claims of error concerning Instruction No. 3 were raised in the trial court: (1) in the instruction conference the McClains’ counsel objected to Instruction No. 3 for the reason that only the representations made in the written purchase contract should have been considered and that evidence of the other representations should not have been allowed by the court; and (2) in the motion for a new trial, the McClains renewed the objections which were advanced in the instruction conference, and further objected that Instruction No. 3 was erroneous as to defendant Jacqueline McClain because there was no evidence in the record to support that instruction as against her. These alleged errors are not discussed in the McClains’ brief.

Instead, the McClains in their brief raise an entirely different claim of error relating to Instruction No. 3. They rely on lack of evidence to support the submission of certain alleged misrepresentations and the claim that certain of the representations were not actionable.

Errors in instructions not specifically objected to at trial before submission to the jury and not set forth in a motion for a new trial are not preserved for appellate review. Rule 78.07. The requirements of Rule 78.07 are to be strictly enforced. “If on appeal an alleged error relating to -an instruction differs from or is not included in the specific objections made to and determined by the trial court, it may not be reviewed by an appellate court. [Citing cases].” Belter v. Crouch Bros., Inc., 554 S.W.2d 562[1-4] (Mo.App.1977).

Because the errors relating to Instruction No. 3 briefed on appeal by the McClains differ from the alleged errors which were presented to the trial court, the McClains’ second point on appeal is not preserved for appellate review.

The McClains’ third point likewise is not preserved for review. The objection at the trial court to the disputed testimony (relating to a loan obtained by plaintiff to purchase defendants’ business and the amount of interest it was required to pay) was based on relevancy and the claim that the interest paid was not a proper element of damages. In the motion for a new trial there were general objections about self-serving, improper and unfounded statements and a second .general claim about rambling and self-serving statements which were not responsive to the questions asked. Nothing was said specifically about the loan and interest in the motion for a new trial.

Now on appeal the point raised is that the facts were not pleaded, the questions and answers were immaterial and irrelevant, allowed the jury to speculate and were prejudicial.

A litigant may not interpose one objection to the trial court and different objections on appeal. In jury-tried cases objections not presented to the trial court in a motion for a new trial are not reviewable on appeal. Rule 78.07. Mitchell v. Robinson, 360 S.W.2d 673, 676[1] (Mo.1962). Belter v. Crouch Bros., Inc., supra. This point is ruled against the McClains.

The McClains’ fourth point is that the trial court erred in admitting into evidence a letter written by Charles Fallert to Eugene McClain and in allowing the létter to be read to the jury. They contend that the letter was self-serving, prejudicial and invaded the province of the jury.

The letter, dated November 22,1974, contained a recitation of the various misrepresentations alleged by Fallert to have been made by McClain in addition to an offer by Fallert to either rescind the contract or negotiate a reduction of the purchase price. It also threatened a lawsuit if an agreement could not be reached on rescission or on a price reduction. McClain did not reply to the letter.

Generally, neither oral nor written declarations favorable to the interest of the declarant are admissible as evidence or proof of the facts asserted. 29 Am.Jur.2d Evidence, § 621; Brandtjen & Kluge v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009 (Mo.App.1940); Keeshan v. Embassy Investment Company, 303 S.W.2d 666 (Mo.App.1957); Hussey v. Robison, 285 S.W.2d 603, 608 (Mo.1955). Here the listing of the alleged misrepresentation in the letter was self-serving as to Fallert, the writer. It was error to receive the letter in evidence.

However, there was ample testimony independent of the letter to prove the allegations of misrepresentations contained in the letter. Therefore the evidence in the letter is merely cumulative and no prejudice results. Murphy v. Buschman-Jennings, Incorporated, 382 S.W.2d 29, 33-34[7, 8] (Mo.App.1964); McDowell v. Southwestern Bell Tel. Co., 546 S.W.2d 160, 162-163 (Mo.App.1976).

The McClains next contend that the trial court erred in overruling their objections to Fallert’s testimony relating his conversation with Eugene McClain regarding the threatened removal of McClain Tool Company from a United States government bidders’ list.

The general rule is that declarations of a party favorable to himself which are not part of the res gestae are hearsay, self-serving and inadmissible as evidence in his favor. A party cannot make evidence for himself by his own declarations. Such declarations are generally not rendered admissible by the fact that they were made in the presence of or in conversation or correspondence with, the other party or his agent unless the other party assents to the truth of the declarations. 31A C.J.S. Evidence § 216. The reason for the rule is the inherent untrustworthiness of such declarations and the probability that their introduction in evidence would open the door to frauds, perjuries and manufactured evidence. 29 Am.Jur.2d Evidence, § 621. Missouri cases follow the general rule. Critcher v. Rudy Fick, Inc., 315 S.W.2d 421, 429[13, 14] (Mo.1958); Stallman v. Hill, 510 S.W.2d 796, 798[7, 8] (Mo.App.1974).

Fallert Tool’s response that the declarations were admissible as part of the res gestae is not tenable. The conversation in which the declarations were made occurred in November of 1974, six months after the closing of the sale and the takeover of the business by Fallert Tool.

Although admission of Fallert’s conversation with Eugene McClain was error, it was cumulative and not prejudicial. There was direct evidence of problems with the government. A handwritten letter of Eugene McClain speaks of dealings with government employees and states that one of them “assured me that this problem would not keep you off the bidders’ list.” However, the letter also stated that one government employee was “happy with the last inspection.” Other testimony of problems with the government came from government employees.

More important, Fallert Tool’s case as finally submitted to the jury was not based on any evidence that the company was threatened with being removed from the government bidders’ list. The verdict-director (see footnote 1) of Fallert Tool spoke only to misrepresentations as to the condition of the machinery, the loyal clientele of the McClains, the amount of business from nongovernment customers, the absence of journals or ledgers as records of the business and the falsity of the statement that all work was done in the McClains’ shop.

The evidence of the conversation, therefore, did not support any of the allegations considered by the jury in reaching a verdict for Fallert Tool. Its admission was harmless error.

The McClains’ final point alleges error in the giving and reading of Instruction No. 4 (MAI 4.01), the damage instruction. The contention at the instruction conference, in the motion for a new trial, and in the McClains’ brief on appeal, was that there was no evidence of damages. Other objections are advanced in their brief but cannot be considered on appeal because they were not raised in the trial court.

The evidence of the selling price of the business, the poor condition and misrepresentations as to the value of the machines, the volume of business and profits in prior years which was lost, poor performance in the past, certain orders wrongfully retained by the McClains, among other facts brought out concerning the dealings between the parties, all provided the jury with sufficient evidence of the losses sustained by Fallert Tool. The committee’s comment on this instruction points out that it is short, simple and easily understood and because no specific items of damages are set out “there is no risk of the jury being improperly instructed on damages not supported by the records.” MAI No. 4.01. There was no error in giving Instruction No. 4.

In their brief the McClains argue in addition that MAI 4.02 (sic) with modifications should have been given and that the “Benefit of the Bargain” rule should have been used as a method of arriving at a damage figure. No alternate damage instruction was requested by the McClains at the trial. Moreover, the proposed instruction was not set forth in full in the argument portion of the brief as mandated in Rule 84.04(e). Therefore, the argument that MAI 4.02 should have been used instead of MAI 4.01 cannot be considered on appeal. Mitchell v. Robinson, supra.

Finally, Fallert Tool and the Fal-lerts individually allege error in the denying of their after-trial motions for a directed verdict or judgment notwithstanding the verdict on the McClains' second counterclaim, the action in replevin brought to recover possession of the machinery and equipment.

The Fallerts individually claim that the second counterclaim was not directed against them, only against the corporation. The counterclaim indeed was brought only against the corporation. Instruction No. 9, the verdict-director on the second counterclaim, also mentions only the corporation as defendant. The corporation alone signed the security agreement. Therefore, the judgment against the Fallerts individually on the second counterclaim was erroneous and must be reversed.

Fallert Tool contends that because the McClains’ $57,195 judgment on the note is off-set in total against the $63,195 judgment of Fallert Tool, Fallert Tool is not in default for any obligation owing to the McClains. The security agreement upon which the replevin judgment was based recited that it became void upon payment of the obligation on the promissory note.

The McClains claim the appeal from the judgment on the second counterclaim is now moot and that “the issue appealed from no longer exists.” They relate in their brief that certain machinery and equipment was delivered by Fallert Tool to them and credit given in an agreed amount of $13,000 against the $57,195 judgment on the note. Apparently there was a dispute as to whether all of the machinery and equipment sold to Fallert Tool was returned. Credit should be given against the judgment on the note for any additional machinery or equipment returned to the McClains.

Because of the setoff, the judgment of possession in favor of the McClains and against the corporation based on the signed security agreement is also reversed. 20 Am.Jur.2d Counterclaim, Recoupment and Setoff, § 157.

The judgment of the trial court is affirmed with the exception of the judgment on the second counterclaim which is reversed.

WEIER, C. J., and SMITH, J., concur.

      . Instruction No. 3 reads as follows:
      Your verdict must be for plaintiff if you believe:
      First, defendants represented to plaintiff that all of the machinery, tools and equipment being sold was in good operating condition, that defendants had an established machine shop with loyal clientele and had good relations with customers who would continue to do business with plaintiff after the sale, that defendants had substantial amounts of business from nongovernment customers, that defendants stated that all work was done in their shop, or the defendants had no journals or ledgers, intending that plaintiff rely upon such representations in purchasing the ‘McClain Tool Co.’, and
      Second, the representations were false, and
      Third, defendants knew they were false, and
      Fourth, the representations were material to the purchase by plaintiff of the ‘McClain Tool Co.’, and
      Fifth, plaintiff relied on the representations in making the purchase, and in so relying, plaintiff was using ordinary care, and
      Sixth, as a direct result of such representations, the plaintiff was damaged.
      MAI 23.05 Offered by Plaintiff

      . The attorney on appeal did not enter the case until after all the post-trial motions had been ruled on and the notice of appeal filed, which may account for some of the problems in connection with the points relied on.


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    Ray Charles McCASKILL, Appellant, v. STATE of Missouri, Respondent.
    No. 40174.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 20, 1979.

      Richard S. McConnell, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Marjorie Wholey Haines, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from a denial of his motion to vacate sentence under Rule 27.26. The circuit court of the City of St. Louis denied the motion without an evidentiary hearing. On appeal, movant contends that the court erred in denying him an eviden-tiary hearing.

Movant seeks to have his two year sentence set aside, alleging first that his “plea was involuntarily tendered for the reason that the plea was not intelligently made,” second, that he was denied effective representation in that his appointed attorney allegedly failed to advise him of the nature of the offense with which he was charged and that counsel failed to investigate, and third, that the information failed to charge a statutory offense.

An order overruling a motion filed under the provisions of Rule 27.26 is deemed a final judgment for purposes of appeal by the prisoner, and appellate review shall be limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Moreover, after review of the record, unless this court is left with the definite and firm conviction that a mistake has been made, the trial court’s judgment will not be reversed. Rule 27.26(j); Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977). Where the files and records of the case conclusively show that the prisoner is not entitled to relief, no evidentiary hearing is required in the trial court. Neither is a hearing required where movant’s allegations are merely conclusions. Smith v. State, 513 S.W.2d 407, 410—412[1], [6] (Mo. banc 1974).

In November 1973 McCaskill pleaded guilty to a charge of attempted first degree robbery. This charge had been reduced from robbery, first degree. The court accepted this guilty plea, finding that “the plea of guilty was made voluntarily, with full knowledge and understanding of the defendant’s rights and the consequences of his act.” The transcript of this plea hearing sets forth McCaskill’s responses to the court’s inquiry prior to accepting his plea of guilty. This includes responses as to (1) his understanding of the offense charged, and his desire to enter a guilty plea, (2) his knowledge that on this plea he could be sentenced to jail for a term ranging from a minimum of two years to a maximum of ten years, and (3) his discussion with, and satisfaction with the advice and recommendations of, counsel.

On December 21, 1973, after a pre-sen-tence investigation, imposition of sentence was suspended and McCaskill was placed on probation for a period of three years. A probation revocation hearing was held in June 1976, at which time evidence was admitted which showed that movant had been convicted of robbery, in the first degree on April 30, 1976. (He had received a seven year sentence on that conviction.) Probation was revoked and McCaskill was sentenced to two years in the Missouri Department of Corrections, such sentence to be served consecutively to the sentence of seven years.

The transcript of movant’s guilty plea hearing shows that the charge had been explained to him and that he had been advised that the range of punishment on a plea of guilty would be from two to ten years. The record refutes his allegation that his guilty “plea was involuntarily tendered for the reason it was not intelligently made.” Movant also alleges that his attorney was ineffective in that he failed to inform him of the nature of the charge and the range of punishment. These allegations are also refuted by the record. See Giles v. State, 562 S.W.2d 106, 111 (Mo.App.1977).

Further he alleges that his attorney failed to investigate the case. First we note that a challenge to the effectiveness of counsel is immaterial after entry of a guilty plea, unless movant alleges that counsel was inadequate or incompetent in such manner as to affect the voluntariness and intelligence of the plea. Matthews v. State, 501 S.W.2d 44, 47 (Mo.1973); Baker v. State, 524 S.W.2d 144, 148 (Mo.App.1975). No such allegation was made here. In addition, an allegation of failure to investigate is insufficient if movant fails, as he did here, to allege what possible defense might have been discovered upon further investigation and how such investigation would have benefitted him. White v. State, 558 S.W.2d 372, 374 (Mo.App.1977).

Finally, there is no merit to mov-ant’s contention that the information was defective in not setting forth the value of the property attempted to be taken. The actual allegation of the information was “several keys on a key ring, value undetermined.” The fact that no value was specified as to the property taken is immaterial so long as the property has some value. The averment in the information, “value undetermined,” does not suggest that the property was valueless; some value, not calculated or determined, obviously attached to the property. State v. VanHorn, 288 S.W.2d 919, 921 (Mo.1956); State v. Biven, 151 S.W.2d 1114, 1117 (Mo.1941); State v. Thomas, 525 S.W.2d 833, 835 (Mo.App.1975).

Affirmed.

GUNN and CRIST, JJ., concur.


author: STEPHAN, Presiding Judge.

text:
    CITY OF ST. CLAIR, a Municipal Corporation, Appellant, v. Ray Jesse CASH, Respondent.
    No. 39813.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 20, 1979.
    Joseph R. Aubuchon, Union, for appellant.
    Prudence L. Fink, Union, for respondent.
   STEPHAN, Presiding Judge.

On June 17, 1977, respondent Ray J. Cash was charged by the appellant City of St. Clair with a violation of City Ordinance 13-2 through failure to obtain a merchant’s license while doing business in the city. After pleading not guilty, respondent was tried by the Municipal Court of the City of St. Clair, was found guilty and fined $50 plus costs. Respondent appealed to the Franklin County Circuit Court for a trial de novo. He then filed a motion to dismiss in the circuit court in which motion he claimed that Ordinance 13-2 is “illegal”, “invalid” and “unconstitutional.” Respondent based this claim on the contention that the city has no statutory authority to impose a license tax upon him for engaging in “concrete subcontracting.” After hearing arguments on the motion, the circuit court dismissed the charge against respondent, and this appeal by the city followed.

St. Clair, as a fourth-class city, derives its authority to tax certain enumerated businesses and business apparatus from § 94.-270, RSMo 1969. That authority was exercised through Ordinance 13-2, which requires that persons or corporations engaged in specified occupations, including “merchants of all kinds”, obtain a license to do business in St. Clair. Appellant city, on this appeal, would have this court decide that it has the power to tax respondent under Ordinance 13-2 not only as a merchant, but under other provisions pertaining to manufacturers, dray operators and “all other business agencies” as well.

However, faced with the record we have before us, we are unable to review the order of the circuit court. We cannot determine whether the ordinance requires a license of one who engages in activities such as those of the respondent, nor can we determine whether § 94.270 authorizes a fourth-class city to regulate and license such activities, for the record does not advise us what those activities consisted of. The argument portion of appellant’s brief is replete with statements such as the following: “Respondent is a concrete subcontractor. He therefore furnishes concrete for a profit. * * * Respondent similarly takes cement, ■ water, and gravel, mixes them in the proper fashion, and makes his finished product. Respondent is a manufacturer. * * * [T]he ‘manufacturing’ process — i. e., the process of mixing concrete — occurs in transfer vehicles.” None of these statements is accompanied by a reference to the transcript or the stipulation which was filed separately. Nor could there be; there is nothing in the record to support them. The ten page transcript consists of copies of various documents transmitted in the case from municipal to circuit court, including a copy of the charge filed in the municipal court, the municipal court’s finding of guilty and imposition of fine together with its docket entry, respondent’s motion to dismiss filed in the circuit court, and a stipulation between the parties establishing that St. Clair is a fourth-class city and placing before the circuit court a copy of the ordinance in question. The transcript then tells us that respondent’s motion was argued, taken under advisement and thereafter sustained. The transcript was approved by the attorneys for both parties. Nothing appears concerning the activities of respondent which gave rise to ordinance violation charge against him. See State ex rel. State Highway Commission v. Hill, 373 S.W.2d 666 (Mo.App.1963); Moulder v. Webb, 527 S.W.2d 417 (Mo.App.1975); V. M. v. L. M., 526 S.W.2d 947 (Mo.App.1975); Farrar v. Moore, 416 S.W.2d 711 (Mo.App.1967).

We are cognizant of our duty to provide a review upon the merits of a case whenever possible. State ex rel. State Highway Commission v. Hill, supra, 668. This principle, however, presupposes a record upon which this court can act with some degree of confidence in the reasonableness of its review, without resort to speculation and conjecture as to the controlling facts of the case. Id., 671; Moulder v. Webb, supra, 420-421; V. M. v. L. M., supra, 949; Farrar v. Moore, supra, 714—715. For us to attempt to determine, on this record, whether a fourth-class city may, under the authority of § 94.270, require a license of one who engages in “concrete subcontracting” or whether the ordinance encompasses such activity would necessitate such prohibited forays into areas of judicial guesswork.

Because it is the duty of the appellant City of St. Clair to provide this court with a record containing everything “necessary to the determination of all questions . presented to the appellate court,” Rules 81.12(a), (b) and 81.14(a) and § 512.-110, RSMo 1969, and because it has failed to do so in this case, we hereby dismiss the appeal. Empire Gas Corp. v. Randolph, 552 S.W.2d 82, 84 (Mo.App.1977); Davis v. Long, 521 S.W.2d 7, 8-9 (Mo.App.1975); Farrar v. Moore, supra, 715.

Appeal dismissed.

KELLY and STEWART, JJ., concur.


author: CRIST, Judge.

text:
    STATE of Missouri ex rel. YEN PEN CHOU, Relator-Appellant, v. Raymond T. PERCICH, Comptroller of the City of St. Louis, Respondent.
    No. 40559.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 20, 1979.
    Benjamin Roth, St. Louis, for relator-appellant.
    Joseph R. Niemann, Asst. City Counselor, St. Louis, for respondent.
   CRIST, Judge.

Appeal from order of the Circuit Court quashing its Alternative Writ of Mandamus.

Relator was employed as a physician at Koch Hospital by the City of St. Louis during the 1977 fiscal year at a bi-weekly salary of $961.53. In addition, Relator received additional sums of money for “overtime” hours he worked in addition to the 80-hour bi-weekly time period which formed the basis for the $961.53 figure.

Relator was paid for his services to the city as a physician amounts totalling $35,-889.07 up to but not including the final bi-weekly period for such fiscal year, which sum was payment for regular and overtime hours. The city comptroller refused to authorize payment for either the regular or overtime hours Relator claims was due for the final pay period.

Relator claims the city owes him $1,394.22 gross salary less payroll deductions of $796.47, or a net sum of $597.75. Respondent comptroller says that the Relator had already been paid too much by reason of a $25,000 annual salary limitation imposed by the Charter of the City of St. Louis. We agree.

Article VIII, Section 8 provides:

“Payment of salaries; maximum established additional compensation or employment ; interest in city contracts; political activity. — All salaries shall be paid at least monthly. Salaries fixed in this charter at a certain sum shall be construed to mean not less than such sum, but no salary under the city shall exceed twenty-five thousand dollars ($25,000) per annum, nor shall any officer or employe receive any additional compensation for serving in any other capacity under the city while in such office or employment; nor hold any office or employment under the state or United States except in the militia or as notary public, nor have a personal interest, directly or indirectly, in a contract with the city; and no elective officer shall be a member of the general city committee of any political party. Any person guilty of any wilful violation of this section shall thereby forfeit his office or employment.” [Emphasis added].

In the title of the Article the words “Payment of salaries; maximum established; additional compensation or employment; interest in city contracts; political activity” evince a certain and definite intention of the framers of the Charter concerning the amount an employee might legally earn in city employment. This intention is buttressed by the plain language of the provisions, viz: “but no salary under the city shall exceed twenty-five thousand dollars ($25,000) per annum, nor shall any officer or employe receive any additional compensation for serving in any other capacity under the city while in such office or employment. . . . ”

The framers intended not only that an employee shall not receive more than $25,-000 per year in any one office or position, but prohibited dual employment with the city. The language of said Article manifestly evinces an intent that no employee of the city shall receive as compensation for his services under the city an amount more than $25,000 per year. This is exemplified by the fact that he may not be interested, either directly or indirectly, in a contract with the city. When one decides to become employed by the city, he or she has an immediate built-in salary limitation of $25,-000. See Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644, 649 (Mo.1941); State ex rel. Forsee v. Cowan, 284 S.W.2d 478, 481 (Mo.1955); and Riepe v. City of Independence, 525 S.W.2d 622 (Mo.App.1975).

This Court recognizes that the monetary limitation is totally unrealistic and abysmally low. We cannot, however, under the guise of judicial construction, thwart the will of the citizens of St. Louis.

The judgment of the trial court is affirmed.

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


text:
    Karl E. BRAUN, Appellant, v. GENERAL MOTORS CORPORATION, Respondent.
    No. 39209.
    Missouri Court of Appeals, Eastern District, Division 2.
    March 20, 1979.

      Leroy Crouther, Jr., Thad F. Niemira, St. Louis, for appellant.
    Joseph M. Kortenhof, Kortenhof & Ely, St. Louis, for respondent; Otis M. Smith, General Motors Corp., Detroit, Mich., of counsel.
   STEPHAN, Presiding Judge.

Plaintiff Karl E. Braun appeals from a judgment entered upon a directed verdict in favor of defendant General Motors Corporation at the close of a three-and-a-half-day jury trial.

This litigation arises from an automobile collision which occurred in July, 1973, when plaintiff’s car, while turning left off U.S. Highway 67 near Poplar Bluff, was struck in the right front quarter panel by a car traveling in the opposite direction. Plaintiff sustained a severe skull fracture on the right side, slightly forward of the ear, and was unconscious for some ten and a half days following the accident. The injury necessitated a number of operations and resulted in partial temporary paralysis and loss of coordination on plaintiff’s left side, occasional loss of memory and equilibrium, and drastic personality change. Plaintiff was forced to undergo extensive physical and psychiatric therapy. He was unable to return to work for approximately two years after the accident and at the time of trial was experiencing some difficulty on the job because of his memory lapses.

Plaintiff’s second amended petition alleged that he sustained personal injuries when his head struck the inside rearview mirror of his car, manufactured by defendant, during the accident; and that such injuries were caused by a defect in the design of the mirror. Plaintiff’s prayer sought actual damages of $750,000 from General Motors and the other driver involved in the accident and $500,000 in punitive damages from General Motors. At the time of trial plaintiff’s claim against the other driver had been settled and the case was tried against General Motors alone. Defendant’s motion for a directed verdict at the close of plaintiff’s ease was overruled, but an identical motion at the close of all the evidence was sustained. Plaintiff’s motion to dismiss his cause without prejudice, made while defendant’s second motion for directed verdict was under consideration, was denied.

It was plaintiff’s contention at trial that the defect in the design of the mirror lay in the upper ball joint, situated in the retainer plate or bracket where the support arm of the mirror attaches to the frame of the car, above the windshield. The purpose of the upper ball joint is to permit forward/rearward adjustment of the mirror to suit the driver’s needs. This joint, of course, must have some stiffness or resistance to movement or the mirror would simply hang loosely from the car’s frame. It must, however, be designed to move with relative ease in the interest both of convenience of adjustment and of safety. Simply stated, plaintiff maintained at trial that the upper ball joint was too stiff, that the amount of force required to cause the mirror to deflect or break away upon impact made the mirror unreasonably dangerous.

On appeal, plaintiff makes three assignments of error. He contends that the trial court erred in (1) excluding certain testimony of his expert witness; (2) sustaining defendant’s motion for a directed verdict; and (3) denying plaintiff’s motion to dismiss his cause without prejudice. We find these points to be without merit and affirm the judgment of the trial court.

In the first point mentioned above, plaintiff charges error in the trial court’s exclusion of opinion testimony of his expert witness, John Senne, (a) as to the possibility that a driver could, under the conditions present in the accident, strike his head on the rearview mirror; and (b) as to the adequacy of the design of the mirror; and the exclusion of (c) a demonstration in which Senne and plaintiff’s counsel proposed to illustrate the damage that could be done upon impact with a mirror by striking and breaking a small red quarry tile with the edge of a mirror similar to the one in plaintiff’s car. It is unnecessary that we consider plaintiff’s challenges to the trial court’s rulings on this evidence, however, for in all three instances the evidence was admitted at a later point in the trial. Sen-ne answered the two questions during rebuttal and later during direct examination, respectively; plaintiff’s counsel performed the demonstration during examination of another witness. Senne’s answers and the demonstration are therefore all part of the record and will be considered by this court on the issue of the submissibility of plaintiff’s case.

In his second point, plaintiff first contends that the trial court improperly sustained defendant’s motion for a directed verdict at the close of all the evidence because it had denied defendant’s first such motion, made at the close of plaintiff’s case. Plaintiff seems to be arguing that the trial court, in overruling defendant’s first motion, somehow “certified” the case as sub-missible and was later precluded from ruling otherwise regardless of the sufficiency of his evidence. The issue, however, is not the logical consistency of the court’s two rulings but the propriety of the second ruling. If plaintiff’s evidence did, in fact, fail to establish a submissible case, it is immaterial at which point in the trial the court so ruled. Cf. Rotermund v. Basic Materials Co., 558 S.W.2d 688, 693 (Mo.App.1977).

In determining whether plaintiff’s evidence established a submissible case, we must, of course, consider that evidence in the light most favorable to plaintiff. We accept such evidence as true and give plaintiff the benefit of all favorable inferences reasonably drawn therefrom. Defendant’s evidence is to be disregarded except insofar as it aids plaintiff’s case. Weatherford v. H. K. Porter, Inc., 560 S.W.2d 31, 33 (Mo.App.1977); Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 569 (Mo.App.1977); North County School District v. Fidelity & Deposit Co., 539 S.W.2d 469, 477 (Mo.App.1976).

Missouri has adopted § 402 A of the Restatement (Second) of Torts as its standard of liability in products liability cases. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969). That section has been held applicable to suits brought against the manufacturer of a product alleged to have been defectively designed, Blevins v. Cushman Motors, 551 S.W.2d 602, 606-607 (Mo. banc 1977), Polk v. Ford Motor Co., 529 F.2d 259, 265 (8th Cir. 1976), and requires in this case that plaintiff prove, inter alia, (1) that the mirror design contained a defect which made it unreasonably dangerous when put to a use reasonably anticipated; (2) that the mirror was in substantially the same condition at the time of the accident as it had been when manufactured by defendant; and (3) that the defect in the mirror was the proximate cause of injuries sustained by plaintiff while he was using the mirror in a manner reasonably anticipated. See Keener, supra, 366. Defendant contends that plaintiff failed to prove any of these elements of his case. We need not consider points (2) and (3), as we hold that the record, judged in the light of the principles set forth above, is wholly devoid of evidence from which a jury could reasonably infer that the design made the mirror unreasonably dangerous.

Plaintiff’s case on this issue rests largely on the testimony of Mr. Senne, a mechanical engineer with experience in accident reconstruction and fault analysis. Senne’s testimony was based on a visual examination of the rearview mirror, which had been removed from plaintiff’s car after the accident and was admitted into evidence; examination of and experimentation with “exemplary” mirrors similar to the one from plaintiff’s car; and examination and measurement of salvaged remnants of plaintiff’s car.

At no time during his testimony did Sen-ne characterize the mirror design as defective or unreasonably dangerous. See Hurt v. General Motors Corporation, 553 F.2d 1181, 1184 (8th Cir. 1977). Senne was asked his opinion of the adequacy of the design of the upper ball joint with regard to its ability to deflect under impact. His answer simply dealt with the general physical laws of inertia. The gist of the answer was that a greater amount of pressure is required to move any physical object with a sudden, intense impact than that necessary to move the same object the same distance under a constant, static push. Since the total force exerted on an object is a function both of the amount of the force and the time during which it is applied, as the time factor decreases the amount of force exerted must be increased to move the object the same distance. As noted, supra, footnote 1, federal safety regulations require that inside rearview mirrors be so designed as to deflect or break away when subjected to a pressure of ninety pounds or less. A General Motors representative testified that defendant’s requirements were more stringent, that the mirrors manufactured by defendant were tested and adjusted so as to deflect under twenty to fifty pounds of pressure. The heart of plaintiff’s claim of a defective design is that defendant’s testing was done with a spring scale, which exerts a constant, steady pressure and that such testing therefore totally failed to take into account and adequately safeguard against the sudden force which is likely to be exerted on a mirror during an accident. However, plaintiff introduced no evidence as to the amount of force required to deflect plaintiff’s mirror on impact, or as to the force necessary to fracture the human skull or otherwise injure the body. Senne’s testimony in this regard simply did not go beyond discussion of the laws of physics. In his demonstration, plaintiff’s counsel showed that a small red quarry tile could be used to deflect a mirror (slightly larger than plaintiff’s) when exerting a steady force on it, but that the same tile would shatter when struck by the edge of the mirror. Because of the great dissimilarity of the conditions under which the demonstration was conducted and the accident occurred [cf., e. g., Blevins v. Cushman Motors, 551 S.W.2d 602, 610 (Mo. banc 1977)], we believe the demonstration to be probative of nothing more than the general laws of physics to which Senne attested. The most that could reasonably be inferred from Senne’s testimony and the demonstration is that it would require more than twenty to fifty pounds of pressure to deflect plaintiff’s mirror under impact. To infer anything more from that evidence, specifically, to infer that the design was defective or unreasonably dangerous, would be pure speculation and conjecture. Hale v. Advance Abrasives Co., 520 S.W.2d 656, 658 (Mo.App.1975).

Plaintiff also introduced, as evidence of the defect, the following excerpt from a Request for Admission which had previously been served on defendant:

Request: “That the inside rearview mirror assembly on plaintiff’s vehicle was not designed to break away under impact.”
Answer: “Admitted, in view of the technically preferable deflect or collapse option in the standard.”

Plaintiff characterizes this answer as an admission of a defect in the design. In fact, however, it is nothing more than a statement of the obvious truth that defendant chose to comply with the federal regulation quoted supra, footnote 1, through a deflect-design mirror. The admission says nothing as to the reasonableness of that choice, and we do not believe any inference favorable to plaintiff’s case can reasonably be drawn therefrom.

In sum, plaintiff’s evidence proved little more than an injury sustained during the use of defendant’s product. For that alone, a manufacturer will not be held liable. To do so would be to hold such manufacturer an absolute insurer of all who use its product. The law merely imposes on defendant the burden of designing and constructing reasonably safe vehicles, Hurt v. General Motors Corporation, 553 F.2d 1181, 1184 (8th Cir. 1977), and plaintiff’s evidence failed to prove that it did not do so in this instance.

Finally, plaintiff contends that the trial court erred in denying his motion for dismissal without prejudice, made during the hearing on defendant’s motion for a directed verdict after the close of all the evidence. Voluntary dismissal is governed by Rule 67.01, which provides in part:

“A civil action may be dismissed by the plaintiff without prejudice without order of court any time prior to the introduction of evidence. After the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party. Leave of court shall be freely granted when justice so requires.”

In the instant case, we believe the trial court could and did properly rule, in effect, that justice did not require the granting of leave to plaintiff to take a voluntary non-suit. It is obvious from the wording of Rule 67.01 that the Supreme Court intended that a trial court have discretion in this regard. We cannot hold that discretion to have been abused where, after a three-and-one-half-day trial, during which plaintiff obviously had the opportunity to present all of the admissible evidence available to him, leave to dismiss without prejudice was denied. There are here present no circumstances which militate against our deferring to the exercise by the trial court of its discretion: plaintiff had not suffered the unexpected unavailability of a witness; there is no indication that any witness testified differently than had been expected; nor is there any indication in the record that, upon retrial, plaintiff could produce evidence sufficient to make a submissible case. Plaintiff’s counsel moved for dismissal after stating his belief, on the record, that defendant’s motion for a directed verdict would be sustained. Counsel’s effort was a desperate, though unavailing, effort to avoid the consequences of inadequate proof. However circumscribed the trial court’s discretion in denying such a motion may be, cf. Daniel v. Laclede Gas Company, 575 S.W.2d 226 (Mo.App.1978), we hold that it was not abused in this case.

The judgment is affirmed.

CRIST and KELLY, JJ., concur.

      . In his petition, plaintiff originally contended that the mirror did not comply with Federal Motor Vehicle Safety Standard 111 S3.1.2.2, originally promulgated in 32 Fed.Reg. 2413. That section provides that “If the mirror is in the head impact area, the mounting shall break away without leaving sharp edges or deflect or collapse when the mirror is subject to a force of 90 pounds in a forward or sideward direction in any plane 45° above or below the horizontal.” At trial, counsel for plaintiff conceded that this standard was probably met and attempted to prove that the mirror was nonetheless unreasonably dangerous.

      .“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

      . It has been noted that where the defect alleged is in the design, rather than the condition, of the product (that is, “[wjhere the product is made precisely as it was intended to be made”) the term “defective condition” in § 402 A has little independent meaning and “the true test is whether the product is unreasonably dangerous when put to a use reasonably anticipated.” Caplaco One, Inc. v. Amerex Corporation, 435 F.Supp. 1116, 1119 (E.D.Mo.1977); Wade, “Strict Tort Liability of Manufacturers”, 19 Southwestern L.J. 5, 14-15 (1965).

      . The record indicates that the mirror had been removed, at the request of plaintiffs counsel, from plaintiffs car in a salvage yard near Poplar Bluff some eight months after the accident, and that the upper bail joint was not moved during the removal or thereafter. Plaintiffs counsel would not permit the witness Senne to move or test the joint; hence, his examination of the mirror was solely visual. The part of plaintiff’s car otherwise available for Senne’s inspection apparently included only the left front interior, the driver’s area. That section had been reconstructed from salvaged parts and was stored in the basement of the office of plaintiffs counsel. The record does not detail how or when plaintiff obtained these parts.


author: WELDON W. MOORE, Special Judge. DON W. KENNEDY, Special Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Edwin JOHNSON, Defendant-Appellant.
    No. 10547.
    Missouri Court of Appeals, Southern District, Division One.
    March 21, 1979.
    Motion for Rehearing or to Transfer Denied April 19, 1979.
    Application to Transfer Denied May 17, 1979.

      Michael Baker, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before FLANIGAN, P. J., TITUS, J., and MOORE, KENNEDY, PYLE and CAMPBELL, Special Judges.
   WELDON W. MOORE, Special Judge.

This is an appeal from a judgment and sentence of life imprisonment, upon a jury verdict of guilty of first degree murder.

The facts of the offense are singularly free of complication and dispute. In the late afternoon of May 12, 1968, the defendant shot the decedent Woods through the head with a .22 caliber rifle. The decedent Woods was emerging from the door of his quarters in the Rainbow Gardens Motel in Springfield where he resided with his wife and children, and of which he was the manager. The defendant Johnson also resided in the motel with his wife and a child.

The homicide was witnessed by the decedent’s wife and a Mrs. Evans, another resident of the motel, who were talking with each other outside the motel. They were apparently looking toward the door where the decedent emerged, heard the shot, and saw the decedent fall. Looking toward the sound of the shot, they saw the defendant standing outside his quarters in front of his pickup truck, lowering a gun. As decedent’s wife rushed to her fallen husband, and as Mrs. Evans went to call the police, the defendant turned and entered his living quarters with the gun.

The incident was preceded by no recent altercation or encounter of any kind between the defendant and the decedent. Three or four weeks earlier the decedent Woods had intervened during an assault by defendant Johnson upon his wife, and at that time defendant had said that he “ought to shoot him and her both.”

The police arrived shortly at the scene. Defendant was found standing inside his living quarters. The rifle was leaning against the television set. Defendant was placed under arrest. He appeared to have been drinking but not to be intoxicated. The arresting officers agreed he seemed confused and disoriented. “He didn’t really act like he understood exactly what was going on” said one. An officer later returned and found a spent rifle shell on the floor of the apartment.

The defendant’s brief testimony was that he was unable to remember shooting the decedent. He remembered having put the gun, unloaded, in his pickup truck on Friday night. There were shells in the glove compartment. He remembered being at his father-in-law’s house in Buffalo on Saturday, and remembered being on Jefferson Street (not the address of the motel).

Besides the testimony of the defendant Johnson, defendant’s case consisted of the testimony of two psychiatrists who gave it as their opinions that the defendant suffered from paranoid schizophrenia at the time of the offense, and could not appreciate the nature, quality, or wrongfulness of his conduct, and could not conform his conduct to the requirements of the law. The state presented no rebuttal evidence.

•Defendant’s brief contained eleven points relied on.

Defendants first point is that the court erred in overruling his motion to suppress evidence concerning the .22 rifle and the .22 shell casing because of an unreasonable search and seizure. The police officers had a right to enter defendant’s apartment to arrest him. State v. Johnson, 463 S.W.2d 785 (Mo.1971). The rifle was in plain sight and could be seized by the arresting officer. State v. Hawkins, 482 S.W.2d 477 (Mo.1972). The .22 caliber shell was found by an officer on a later visit to the apartment of the defendant and it was the testimony of the officer that the wife of the defendant, who lived with defendant in the apartment, consented to the search. The court had the right to believe this testimony and she could give valid permission to search the said premises. State v. Stuart, 415 S.W.2d 766 (Mo.1967). Point one is ruled against defendant.

Defendant’s point two is that the court erred in overruling his motion to dismiss the information because he had previously been acquitted by reason of mental disease or defect. The proceedings which resulted in the acquittal of January 11, 1971, found later to be invalid, did not put defendant in jeopardy of being found guilty. Therefore the present trial does not constitute double jeopardy. State v. Kent, 515 S.W.2d 457 (Mo.1974); U. S. v. Lasater, 535 F.2d 1041 (8th Cir. 1976). Point two is ruled against defendant.

In defendant’s point three he claims he is entitled to be discharged because there has been an unreasonable and prejudicial delay in bringing him to trial and the court erred in denying his pre-trial motion for that relief.

Since eight and one-half years passed from the time of the offense to the time of trial, a detailed procedural history, in both the magistrate and circuit courts, from arrest to trial, is appropriate.

Magistrate Court Procedure

On May 13, 1968, a felony complaint was filed, a warrant was issued and served on defendant. Defendant was arraigned and preliminary hearing was set for May 28, 1968. Defendant was advised that the court would, on May 15, 1968, consider appointing attorney for preliminary hearing. On May 15,1968, an attorney was appointed for defendant. On May 21, 1968, he filed a motion for mental examination of defendant, which was sustained on May 29, 1968.

Defendant was examined by Dr. T. William Howard on June 5, 1968, and was further examined by Drf James B. Allison on June 12, 1968. Defendant was also examined at St. John’s Hospital on June 15, 1968.

On June 28, 1968, the prosecuting attorney filed motion for mental examination by Dr. Hulstra which was sustained on July 1, 1968.

On August 21, 1968, a hearing was had and the court, after reviewing the reports of Dr. Hulstra, Dr. Allison and Dr. T. William Howard (in evidence by stipulation) and conferring with the defendant, ordered defendant committed to a mental institution for psychiatric hospitalization.

On August 28,1969, the state filed objection to release of defendant which was in response to defendant’s motion to proceed, which was not filed until August 29, 1969. The prosecuting attorney apparently received a service copy of the motion before it was filed.

Defendant, in his motion, alleged that he was committed to the state hospital until he had the capacity to understand the proceedings against him; that he had been staffed by the professional staff; that he felt that he had the capacity to understand the proceedings against him; that he could assist in his defense. He prayed that he be returned to the jurisdiction of the court. The motion was overruled.

On September 21, 1970, a motion to proceed was filed by the director of mental diseases and was sustained on October 7, 1970. On October 14, 1970, by agreement of the prosecuting attorney and attorney for defendant, the case was reset for November 5, 1970.

Preliminary hearing began on November 5, 1970, and ended November 6, 1970. Defendant was bound over to the circuit court for its action on November 13, 1970.

Circuit Court Procedure •

On November 10, 1970, an information was filed charging defendant with first degree murder. November 12, 1970, defendant filed motion for examination pursuant to Chapter 552 RSMo 1963 Supplement.

On November 16, 1970, defendant was arraigned and entered pleas of not guilty and not guilty by reason of mental disease or defect. Defendant’s motion for examination pursuant to Chapter 552 RSMo was sustained. Dr. James Allison and Dr. Han Hulstra were appointed to examine defendant.

On December 31, 1970, defendant appeared with a different attorney and the state declined to accept a plea of not guilty by reason of mental disease or defect excluding responsibility. The case was set for trial February 8, 1971.

On January 11, 1971, defendant again appeared with his attorney and state appeared. A supplemental report of Dr. Huls-tra was filed. State accepted a plea of not guilty by reason of mental disease or defect excluding responsibility. Court found defendant not guilty by reason of mental disease or defect. The court found defendant was still suffering from the disease or defect and ordered him committed to the custody of Director of Mental Diseases of Missouri, Department of Health, at State Hospital No. 1.

Defendant filed petitions or applications for order of release on July 15, 1971, January 14, 1972, March 14, 1973, April 22, 1974, and December 23, 1974.

Five hearings were held between July 12, 1972, and March 21, 1975, on the petitions or applications for release and release was denied each time.

On March 10, 1976, the Supreme Court of Missouri ordered defendant released from the State Hospital at Fulton because the original commitment to the hospital was invalid for “failure to follow the provisions of Section 552.030.2, RSMo. 1969.” Defendant was ordered into the custody of the Sheriff of Greene County to be held for further proceedings on the criminal charges.

On March 19, 1976, an attorney was appointed to represent the defendant and the court announced its readiness and intention to proceed with trial as soon as possible, if and after the court determines defendant is mentally able to proceed and the state can make a submissible case. On April 15,1976, after a hearing, the court found that defendant was mentally competent to proceed and the state could make a submissible case.

Trial was set for June 6, 1976. On May 17, 1976, the court, over the objection of the defendant, sustained the state’s motion for a continuance and the case was reset for July 14, 1976.

On July 8, 1976, the defendant filed two motions to suppress. On July 14, 1976, defendant filed a motion to view the scene of the alleged offense. Hearings were conducted on these motions on July 14 and July 15, 1976.

Defendant was tried on October 18 and 19, 1976.

In State v. Hadley, 249 S.W.2d 857 (Mo.1952) defendant entered a plea of guilty to murder in the first degree and was sentenced and was confined from March 1930 until December 1949, when his plea and the judgment rendered thereon was vacated for want of counsel. Defendant was indicted for the same offense on February 3, 1950, and on May 6,1950, was again found guilty. It was held that defendant was not denied a speedy trial since there had been no delay by the state in the sense that the state was slow or reluctant to prosecute, but that the delay was due to an error in the record of the first proceeding.

In State v. Brown, 502 S.W.2d 295 (Mo.1973) cert. den. 416 U.S. 972, 94 S.Ct. 1999, 49 L.Ed.2d 562, the indictment was filed on April 27, 1965, and was not tried until after March 10, 1970. Defendant contended that the court erred in overruling his motion for discharge because he was denied his constitutional right to a speedy trial. Defendant, on August 27, 1965, filed a motion requesting a mental examination, which was sustained. The examination found defendant incompetent to stand trial and he remained in that status until he was deemed competent by a hearing of January 8, 1969. Defendant cited and relied on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It was held that Barker v. Wingo does not apply where a delay resulted from lack of mental capacity of an accused to stand trial. The court cited Genereux v. Pelosi, 96 R.I. 452, 192 A.2d 630 (1963) where it is stated “[i]f the accused himself has put in issue his mental capacity to stand trial it has been held that he cannot thereafter claim that either his constitutional or statutory right to speedy trial has been violated.” The court cited Howard v. United States, 261 F.2d 729 (5th Cir. 1958), relying on Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956) held that the failure to put an accused to trial because of mental incompetency does not deprive him of the right of a speedy trial under the guarantee of the Sixth Amendment to the Constitution of the United States.

Here defendant put his mental capacity to stand trial in issue in both the magistrate and circuit courts. Defendant initiated an offer to plead not guilty by reason of mental disease or defect which the state refused to accept. Later the state did accept such plea and defendant was committed to State Hospital No. 1 on January 11, 1971. The Supreme Court of Missouri ordered defendant released on March 10, 1976, and the defendant was tried in October 1976.

After it was determined that defendant lacked the requisite mental capacity to stand trial and after defendant’s plea of not guilty by reason of mental disease or defect had been accepted, the state could not try him so long as those conditions existed. “ ‘[T]he conviction of an accused person while he is legally incompetent violates due process.’ ” Brown v. State, 485 S.W.2d 424 (Mo.1972). From August 21, 1968, until at least March 10, 1976, defendant was not legally competent to stand trial except for that brief period from October 14, 1970, to January 11, 1971, during which the defendant had his preliminary hearing and initiated his plea of not guilty by reason of mental disease which the state accepted. When the period of mental incompetency to stand trial is not considered, defendant’s right to a speedy trial is not violated. See Miller v. State, Fla., 332 So.2d 65.

Here it was the defendant who initiated the mental examination and it was the defendant who apparently initiated the plea of not guilty by reason of mental disease. The court was always open to the defendant and he had several hearings pertaining to his status. The state was not slow or reluctant to proceed on the various motions filed by the defendant, nor was the state slow or reluctant to afford défendant a jury trial once his mental competency was established. Point three is ruled against defendant.

Defendant’s fourth point is that the information should have been dismissed for the reason that the statute upon which it was based had been repealed.

The fact that the statute upon which the information was based and which was in effect at the time of the homicide had been repealed before the trial does not entitle defendant to the dismissal of his information. Section 1.160 RSMo 1969. Point four is ruled against defendant.

Defendant’s point five is that the court erred in overruling his objections to and motion for mistrial based on questions concerning threats allegedly made by him to the decedent for the reason it deprived him of his right to be tried on the crime charged. There was no error in admitting testimony that the defendant, three or four weeks before the shooting, had made what could be considered a threat to shoot the decedent. This is admissible testimony even though it might prove another crime. State v. Whitley, 512 S.W.2d 840 (Mo.App.1974). The testimony is plainly relevant to show motive, deliberation and state of mind. Defendant’s fifth point is ruled against defendant.

Defendant’s sixth point is that his motion for judgment of acquittal should have been sustained for the reason that the evidence showed that he was suffering from a mental disease or defect so as to exclude from responsibility. A criminal defendant is presumed to be free of mental disease unless defendant introduces substantial evidence of lack of responsibility, whereupon the matter becomes one for the trier of facts. State v. Bacon, 501 S.W.2d 499 (Mo.App.1973). The question of defendant’s lack of responsibility was for the jury. Point six is ruled against defendant.

Defendant’s seventh point is that the charges should have been reduced to second degree murder because the evidence established he was not capable of forming the intent required for first degree murder and the state failed to show such state of mind. The evidence, which has been recounted in this opinion, plainly shows that the evidence was sufficient to support an instruction upon the subject and a verdict of first degree murder. Defendant’s point seven is ruled against defendant.

Defendant’s points eight and ten complain of giving of certain instructions. He claims that the court’s first degree murder instruction requiring a finding that defendant “intended to take the life of Glen Dale Woods” and the second degree murder instruction requiring a finding that defendant “intended to cause serious bodily harm to Glen Dale Woods” was confusing. We are unable to say this is so. Defendant’s points eight and ten are ruled against defendant.

Defendant’s point nine is that the court erred in failing to give a certain instruction offered by defendant which told the jury that if the defendant was unable, because of mental disease or defect, to form the specific intent required by a certain crime or degree of crime then he must be found not guilty of the crime because of lack of specific intent. The court did, however, give two other instructions to the same effect, also offered by the defendant. Neither the two instructions which were given nor the refused instruction are in MAI. When a court has fully and properly instructed on the subject there is no error in refusing further instructions on the subject. State v. Peterson, 546 S.W.2d 175 (Mo.App.1976). Point nine is ruled against defendant.

Defendant’s point eleven is that the court erred in admitting into evidence photos of the body of the decedent. The trial judge viewed the photos and allowed them to be introduced. Proof of the decedent’s death was an essential part of the state’s case. This is one of those matters entrusted to the discretion of trial judges and we find no abuse of discretion. State v. Jackson, 499 S.W.2d 467 (Mo.1973). Point eleven is ruled against defendant.

The judgment is affirmed.

FLANIGAN, P. J., TITUS, J., and PYLE and CAMPBELL, Special Judges, concur.

KENNEDY, Special Judge, dissents.

DON W. KENNEDY, Special Judge,

dissenting.

I dissent. I think the passage of eight and one-half years from the time of the alleged crime and arrest to the time of the first trial was presumptively prejudicial to defendant and in violation of his right to a speedy trial. I would reverse and remand for further proceedings upon the motion for discharge, and I would place upon the state the burden of showing that the defendant suffered no intolerable disadvantage for the delay. See Williams v. United States, 102 U.S.App.D.C. 51, 53, 250 F.2d 19, 21 (1957). Here are my reasons:

Eight and one-half years passed from the time of the assumed crime, followed immediately by defendant’s arrest, until the trial which resulted in his conviction. Such an extraordinary interval raises inevitably the speedy trial question and entitles it to the closest examination.

The right to a speedy trial is vouchsafed to the defendant by Article I, Section 18(a) of the Missouri Constitution of 1945. It is also one of those fundamental rights imposed upon the states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967).

The fundamental interests served by these constitutional provisions have been discussed by the Supreme Court of the United States in the case of Barker v. Wingo, 407 U.S. 514, 519-522, 92 S.Ct. 2182, 2186-2188, 33 L.Ed.2d 101, 110-112 (1972). The reader is referred to that opinion for amplification of the philosophy of the speedy trial requirement and I will resist the temptation to quote from it at length. The opinion points out that it is not only the obvious interests of the defendant which are served by a reasonably prompt trial of criminal charges. Society also has an interest which exists “separate from, and sometimes in opposition to” the interests of the accused.

In discussing criteria for permissible and impermissible delay in trial, the supreme court observed that some courts had held that a defendant waived a right to a speedy trial by failing to demand same, and that other courts and legislatures had prescribed a certain time period within which the defendant must be offered a trial. The opinion proceeds (407 U.S. at 529-530, 92 S.Ct. at 2191-2192, 33 L.Ed.2d at 116, 117):

“We . . . reject both of the inflexible approaches — the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
Now to the case before us:
The charge-to-trial period is divided as follows:
3 months — In jail pending preliminary hearing. Two mental examinations conducted.
27 months — In state hospital pending preliminary hearing as incompetent to stand trial.
2 months — In jail and in state hospital from preliminary hearing to judgment of acquittal and commitment to state hospital (January 11, 1971).
62 months — In Fulton State Hospital under January 11, 1971 judgment, until discharge on habeas corpus.
7 months — In jail awaiting trial.

The five periods total eight and one-half years, during all of which defendant was incarcerated, either in jail or in the state hospital.

The greater part of the delay is accounted for by two periods of confinement in the state hospital — the first of twenty-seven months because incompetent to stand trial, and the second of five years and two months under the abortive judgment of acquittal and hospital commitment.

The earlier hospital confinement of twenty-seven months is to be weighed differently from the later confinement. If the case was in abeyance during this period there was at least a trial in prospect. It languished but it was not dead. It was likely under occasional review by prosecutor, by defense counsel and by the court. For this reason the time should be weighed less heavily against the state than the time during the second period, but it should not be excluded from consideration.

Delay because of the incompetency of an accused to stand trial may sometimes reach a point when a case ought to be dismissed. Williams v. U. S., 102 U.S.App.D.C. 51, 55, 250 F.2d 19, 23 (1957). Aside from the constitutional issue, our statute recognizes that eventually it may be unjust to resume the prosecution and provides for its dismissal, § 552.020(7), RSMo 1969. (Such time is excluded, however, in applying the statutory 180-day period in which a criminal charge must be tried under our new § 545.-780, RSMo, enacted in 1977).

The second period of sixty-two months, however, should be given greater weight on the side of the motion for discharge. During this period the case was considered by all to be finally disposed of and dead. Neither any prosecutor nor any defense attorney was looking toward a trial of the case. No investigation was proceeding, no evidence being preserved, no discovery in progress. It may be worth noting under the heading of absence of continuity, that the defendant’s first attorney was replaced by another before the acquittal of January 11, 1971. Yet a third attorney represented him in the present trial. A fourth and fifth had represented him on his petitions for release. A number of prosecutors had represented the state. All the defendant’s attorneys acted under court appointment.

The remainder of the eight and one-half year period is accounted for by twelve months in jail in three different segments.

Only one part of the whole lapse of time might be considered the “fault” of the state. That was the final seven-month period before the trial, which seems inordinate in the circumstances of this case. During that time one continuance was granted, from a July setting. It was at the state’s request and over the defendant’s objection. Of course, any delay which is intentionally or negligently caused by the state should be weighed more heavily against the state.

No part of the delay can be laid to the defendant, for aught the record shows. Delay attributable to defendant’s fault is to be excluded from consideration upon the speedy trial issue. If delay is purposefully used as a defense tactic it cannot be used also in support of a plea for discharge because of denial of a speedy trial. But in this case there is no hint of that on defendant’s part. The reasons for the delay were (with possible exception-mentioned above) of a “neutral” variety. Barker v. Wingo, supra, 407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119.

It might be argued, on the basis of State v. Hadley, 249 S.W.2d 857 (Mo.1952) that the courts were open to the defendant during the sixty-two month period of confinement, and that he could at any time have secured his release from the state hospital and have gotten a trial — the “relief” which he ultimately got. But this is more theoretical than practical. And you might as well argue the state at any time could have had the 1971 acquittal set aside and have put the defendant upon trial. After all, it is ultimately the responsibility of the state to provide a speedy trial, not that of the defendant. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; U. S. v. Sarvis, supra, 173 U.S.App.D.C. at 234, 235 at 1183, 1184.

But regardless of the absence of culpability on the state’s part — and bearing in mind that the defendant also was innocent of blame for the delay — I think the mere passage of time in this case probably has materially diminished the defendant’s ability to establish a defense of mental disease or defect excluding responsibility.

It is quite evident that defendant’s only defense was mental disease or defect barring responsibility. It is also clear that it was a substantial defense. While we have the trial testimony only of Dr. Allison and Dr. Hulstra, I infer that the several doctors who examined defendant in connection with his various petitions for release had found him mentally ill at the time of examination, for his petitions were regularly denied. The magistrate court originally found the defendant mentally incapable of trial, and the preliminary hearing was held only after defendant had been twenty-seven months in a mental hospital. Although the January 11,1971, commitment by the trial court was later determined to be invalid, the prosecuting attorney at the time of that commitment did agree that the defendant was not guilty by reason of mental disease and defect barring responsibility, and the court accordingly acquitted the defendant and committed him to the state hospital. It appears from the record that the state would have been willing before the present trial to accept a plea of not guilty by reason of mental disease or defect, but the defendant would not agree to it. The claim of mental disease or defect was no sham defense.

A persuasive defense of mental disease excluding responsibility usually must be established by more than psychiatrists’ testimony based upon after-the-fact examinations. Testimony of aberrant behavior and speech over a period of time, gathered usually from friends, family, neighbors, employers and fellow workers, may be pieced together to form a history showing a deranged mind. Such data is useful to the psychiatrist in his diagnosis and it is useful also to the jury in raw form. These bits and pieces of information, each in itself of small significance, are more than likely lost over a period of eight and one-half years.

Not all the disadvantage stemming from the delay belongs to the defendant. The state’s task of producing evidence in rebuttal of defendant’s testimony of mental disease or defect is made more difficult, if not impossible. The whole process of investigating defendant’s mental condition as of a date eight and one-half years in the past, at least in the circumstances of this case, becomes a mighty uncertain business.

“When prosecution is delayed because of an accused’s mental incapacity to stand trial, the difficulty of determining whether the accused was mentally responsible at the time of the crime is increased. Passage of time makes proof of any fact more difficult. When the fact at issue is as subtle as a mental state, the difficulty is immeasurably enhanced.” Williams v. U. S., supra, 102 U.S.App.D.C. at 54-55, 250 F.2d at 22, 23.

My treatment of this sixty-two month period is inconsistent with State v. Hadley, supra, where trial took place twenty years after offense and charge. During nearly all that time defendant had been in prison under a sentence based upon a guilty plea which was at length set aside because defendant had not been represented by counsel. The case is distinguishable from this in that there was no insanity defense, calling for a wide-ranging investigation — but I am dubious about the authority of the ease, anyway, since Barker v. Wingo, supra. The case seems to me an anachronism.

Except for Hadley, I have found no case which survived a speedy trial challenge where the first trial occurred anything like eight and one-half years after the offense and charge. Cases such as Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (eight years from indictment to trial) are not in point for there had been an earlier trial. The earlier trial gave an opportunity for thorough investigation and for the preservation of testimony by means of the record.

      . See United States v. Sarvis, 173 U.S.App.D.C. 228, 233, 523 F.2d 1177, 1182 (1975) to the effect that incarceration of defendant pending trial is a factor to be considered on speedy trial issue — and in our case the factor is not mitigated by defendant’s receiving credit for it on his penitentiary sentence!

      . In Williams, a seven-year delay, occasioned largely by his mental incompetence to stand trial, was held to entitle defendant to discharge. See also U. S. v. Morgan, 185 U.S.App.D.C. 372, 390-91[12], 567 F.2d 479, 497-98[12] (1977) where in dicta the court seriously questioned whether an effective insanity defense could be presented after six years.

      . Defendant was reluctant for the court before the present trial to enter a plea of not guilty by reason of mental disease or defect. “I’d like to get out from under that plea myself,” defendant said, “because that plea was made to me by— without my knowing anything about it, you see . . I feel that this is too much of a plea there.” Defendant’s I.Q. was measured after the killing to be 64 (that of a 10-year-old child). Later it was measured as 88, a dull normal.


text:
    Larry WAYNE, Movant, v. STATE of Missouri, Respondent.
    No. 40834.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 27, 1979.

      Robert C. Babione, Public Defender, St. Louis, for movant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Rule 27.26 motion. Movant appeals the denial of his motion without an evidentiary hearing.

On August 2,1976, movant was convicted of second degree murder and sentenced to life imprisonment. Thereafter, movant escaped custody. His trial counsel filed a timely motion for new trial and notice of appeal. Our Court dismissed the appeal on April 25, 1977 for failure to perfect appeal and comply with the rules.

On appeal movant claims the trial court erred in not granting movant an evi-dentiary hearing when he alleged in his Rule 27.26 motion that he had received ineffective assistance of counsel on an aborted appeal. We must limit our appellate review to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Foster v. State, 520 S.W.2d 684, 686 (Mo.App.1975). We find they are not.

Movant’s Rule 27.26 motion alleged:

(1) His escape from custody during post-trial proceedings;

(2) His indication to his attorney before his escape of his desire to appeal the conviction;

(3) His attorney’s knowledge of his family’s address; and

(4) His attorney’s failure to contact his mother concerning the appeal.

Can a defendant complain about his attorney’s failure to perfect his appeal while he is an escapee during the time in which an appeal can be taken? He cannot.

Movant alleges the denial of his constitutional right to appeal. He desired to appeal. He claims his attorney knew he wanted to appeal and points to the filing of the notice of appeal. Movant alleges his attorney refused or negligently failed to take proper steps to perfect his appeal. In support of his claim of ineffective assistance of counsel movant cites Green v. State, 451 S.W.2d 82 (Mo.1970) and Sampson v. State, 570 S.W.2d 337 (Mo.App.1978). These cases are not enough. Had movant refrained from escaping custody, things might have turned out differently.

A defendant who escapes custody during post-trial proceedings relinquishes his right to appeal. Movant “is in no position to charge his counsel with ineffectiveness for failing to pursue that which movant by his conduct had relinquished.” White v. State, 558 S.W.2d 372, 375 (Mo.App.1977). Movant was in contempt of court and the law. Such trifling with justice must not be tolerated.

Judgment affirmed.

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