text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Richard EVANS, Defendant-Appellant.
    No. 37527.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 21, 1976.
    Darryl L. Hicks, Warrenton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Jefferson City, James G. Gregory, Pros. Atty., Montgomery City, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of burglary in the second degree and stealing, and sentenced to concurrent prison terms of five and three years respectively. We affirm the judgment.

On appeal, defendant contends that there was insufficient evidence of probative value to support his conviction. In determining whether a submissible case was made, we view the evidence most favorable to the state and consider favorable inferences reasonably to be drawn from this evidence, rejecting any evidence to the contrary. State v. Gamache, 519 S.W.2d 34, 39[1] (Mo. App.1975).

On August 7, 1974, the Union Electric substation near New Florence in Montgomery County, Missouri was burglarized. Copper wire in the substation was stolen and later sold as scrap to the Becker Metal Company in St. Louis. Defendant Evans was not physically present at the time of the burglary and the theft of the wire. His conviction rested upon his aiding and abetting the commission of the offenses. Prior to the offense, on Friday, August 2, 1974, Larry Peery, one of the persons who actually participated in the burglary and stealing, together with defendant, went to the Union Electric substation for the purported purpose of looking for employment. Defendant told Peery that he had a key to the substation which he had obtained« while working for L. E. Meyers, and they discussed taking copper or getting copper wire. The defendant informed Peery that he could get into the place using this key. On the night of August 6, 1974, Peery and two of the defendant’s sons went to defendant’s house and obtained the key. They used the defendant’s truck to go to the substation and there entered with the key and took the wire which they found there at that time. They then went back to the defendant’s house and one of the sons returned the key. From there they proceeded to St. Louis where the copper was sold to Becker Metals Corp. Peery received $312.00, each of the two sons received the same amount, and the defendant told Peery that he had received $312.00 from the proceeds of the check. According to Peery, the defendant had participated in discussions with Peery and his two sons concerning the use of the key to obtain entry to Union Electric’s substation for the purpose of getting the wire. At that time it was discussed as to how the money was going to be divided and it was decided that it would be divided into four equal parts, one part for the defendant, one part each for each of his sons, and one part for Peery. A search was made of defendant’s premises and a check stub from Becker Metals in the amount of $1,237.99 was found there. Wood from the spools of stolen copper was found in the defendant’s pickup truck.

“All persons who participate in the commission of an offense are principals and the act of one is the act of all; all persons who act together with a common intent and purpose are equally responsible therefor, and a person who. aids and abets the commission of a criminal offense is guilty as a principal. Evidence sufficient to justify the jury in finding that the defendant did in any way aid, abet or encourage another in the commission of an offense is sufficient to support a conviction. Furthermore, while evidence that an accused had an opportunity to commit an offense which merely raises a suspicion is insufficient to sustain a conviction, yet any evidence showing any form of affirmative participation is sufficient. Proof of conduct before, during or after the offense are circumstances from which participation in the offense may be inferred. Of course, a submissible case may be made on circumstantial evidence. But to warrant a conviction based on such evidence the facts and circumstances must (a) be consistent with each other, (b) be consistent with the hypothesis of guilt, (e) be inconsistent with innocence, and (d) point clearly to guilt as to exclude every reasonable hypothesis of innocence.” (Citations omitted) State v. Gamache, supra at 39[2 — 8].

It is not necessary that a conspiracy need be shown nor is it necessary that actual physical presence at the commission of the crime be proven in order to support a conviction. Furthermore, it is not required that the state prove that the defendant personally did all the things which make up the elements of the crime. State v. Lemon, 504 S.W.2d 676, 683[10-12] (Mo.App.1973).

Defendant participated in the planning of the crime. He supplied the key and the truck to carry it out, and according to believable testimony he received one-fourth of the proceeds. Such activity was sufficient to convict him as a principal in the commission of the crimes of burglary and stealing. Defendant contends that the evidence presented at the trial to support his conviction was uncorroborated testimony of Peery, the accomplice, and that it was so lacking in probative value as to be insubstantial. A correct statement of the rule upon which defendant relies is: “A conviction may be had on the uncorroborated evidence of an accomplice unless such testimony is so lacking in probative force as not to amount to substantial evidence.” State v. Powell, 433 S.W.2d 33, 34[2] (Mo.1968). Peery’s testimony was not self-destructive so as to rob it of all probative force, nor was it inherently suspect or incredible. Furthermore, portions of his testimony were corroborated by other witnesses. The determination of the credibility of a witness is a matter to be resolved by the jury. State v. Martin, 530 S.W.2d 447, 451[11] (Mo.App.1975).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    In the Matter of BABY GIRL B_.
    No. 37862.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 21, 1976.
    Richard A. Ong, St. Louis, Margaret M. Nolan, Clayton, Robert O. Hetlage, David Schwartze, St. Louis, for appellant.
   WEIER, Presiding Judge.

This appeal was taken from a judgment of the Juvenile Division of the Circuit Court of St. Louis County dated September 23, 1975, in which the court denied the petition of Barry C. Shapiro and Sharen Sue Shapiro, his wife, for transfer of custody and adoption of Baby Girl B-At the same time, the court granted the adoption petition of other adoptive parents.

On July 26, 1971, the child had been transferred from its natural mother to the St. Louis County Division of Family Services (hereinafter Family Services) for foster care and placement in the best available adoptive home. The parental rights of the mother were terminated in that same order. Following an investigation of Barry Shapiro and his second and previous wife, Marjorie, Family Services requested the Juvenile Court to order the custody of Baby Girl B_ transferred from that agency to the Shapiros. An order in conformance with this request was entered on September 2, 1971, the child remaining subject to supervision of the agency and continuing jurisdiction of the Juvenile Court.

Barry and Marjorie Shapiro had a history of marital difficulties which they had hidden from the agency during its investigation. Their situation did not improve, and they separated twice after obtaining custody of the child. On September 7, 1972, Barry and Marjorie were divorced. On May 17, 1972, after their final separation, but before the divorce, the child was removed from Mr. Shapiro’s physical custody pursuant to a capias order issued by the Juvenile Court on the recommendation of Family Services. On May 30, 1972, the Juvenile Court entered its order transferring the legal and physical custody of the child from Mr. and Mrs. Shapiro to Family Services. These facts were previously detailed in an opinion of the Missouri Supreme Court in In Interest of Beste, 515 S.W.2d 530 (Mo.1974).

As reported in In Interest of Beste, supra, the previous order of the court transferring custody back to Family Services was set aside and a full hearing was had in regard to the right of the court to change the physical custody of the child. Evidence was adduced, and upon the conclusion of the hearing, the court ordered that the child remain in the legal and physical custody of Family Services. Following the adverse ruling on an after-trial motion, Shapiro appealed, and in its opinion the Supreme Court stated, supra at 533, that this like all cases is governed by the rule that all appeals are statutory in origin and must be taken in compliance with the appropriate statutes. The opinion then points out that under the Juvenile Code an appellant must come within the class of persons entitled to appeal. Section 211.261, RSMo 1969, provided for an appeal to be taken “on the part of the child” by a parent. In view of the fact that all appeals must be taken in compliance with this section, since appellant is not the parent of the child, he had no standing to pursue the appeal.

On this appeal, petitioners Barry and Sharen Sue Shapiro (Barry’s third wife) contend that: “The Order of the Court transferring the custody of Baby Girl Beste from Mr. and Mrs. Shapiro to the Family and Welfare Services Agency was made without prior notice to Mr. Barry Shapiro, thereby depriving him of an opportunity to be heard and thus violative of the Due Process Clause of the 5th and 14th Amendments of the Constitution of the United States and equal protection of the Laws under the 14th Amendment of the Constitution of the United States and Article 1, Section 2 of the Constitution of the State of Missouri, 1945." This is identical to the issue raised by Mr. Shapiro’s prior appeal wherein the Supreme Court held that Barry Shapiro lacked standing to appeal. Mr. Shapiro was not a parent as defined in § 211.021(5), RSMo 1969, and therefore cannot appeal pursuant to § 211.261. This contention is without merit and is therefore denied.

The second contention advanced by petitioners is that the order dated September 23, 1975 denying their petition for transfer of custody and adoption was not in the best interest of the child. We review court tried cases on appeal upon both the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01. This means that the decree or judgment of the trial court will be sustained by the appellate court (1) unless there is no substantial evidence to support it, (2) unless it is against the weight of the evidence, (3) unless it erroneously declares the law, or (4) unless it erroneously applies the law. Our exercise of the power to set aside a decree or judgment on the grounds that it is “against the weight of the evidence” is exercised with caution and “with a firm belief that the decree or judgment is wrong”. Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976). From a careful review of the record we have determined that the judgment of the court was supported by substantial evidence and was not against the weight of the evidence. Petitioner Barry Shapiro has a varied work history, shifting jobs several times during the five years preceding the day of the hearing. His annual income was estimated at $25,000.00 but he was not a salaried employee and worked on a commission basis. He had been employed at his present position only three weeks at the time of the hearing, so a true picture of his income would be difficult to ascertain. He had two prior unhappy marriages, and the petitioner-wife had one previous marriage. The short duration of this marriage at the time of the hearing did not illustrate a stable, secure environment for a child. During the investigation of his home with regard to the instability of his second marriage by Family Services, he withheld information. Such withholding constitutes misrepresentation and alone may be sufficient for a finding that petitioner-husband was not a suitable custodian for the child. H_v. D_, 373 S.W.2d 646, 654[3] (Mo.App.1963).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


author: SHANGLER, Presiding Judge.

text:
    Etta Marie PEMBERTON et al., Plaintiffs-Appellants, v. Harley REED et al., Defendants-Respondents.
    No. KCD 27887.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      Robert L. Langdon, Bradley, Skelton & Schelp, Lexington, for plaintiffs-appellants.
    James L. Gillham, Independence, for defendants-respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The sisters Maggie and Cora Pemberton owned two tracts of land as joint tenants with the right of survivorship. On January 17, 1946, Maggie and Cora executed, without consideration, a warranty deed to defendants Reed, husband and wife, to a 29⅝⅞ acre parcel of land [Tract A], On October 22, 1946, they executed another warranty deed to defendants Reed to a 59 acre parcel [Tract B] and reserved in themselves a life estate. Cora died on November 18, 1947. Maggie died on April 22, 1974.

On July 24, 1974, J. D. Pemberton [nephew of Maggie and Cora] and his wife brought an action in two counts. The first count sought to set aside the two deeds for lack of mental capacity of Maggie and Cora and for the undue influence of the grantees, defendants Reed. The second count sought the sale of the two parcels and distribution of the proceeds among the heirs of Maggie and Cora.

The defendants Reed moved dismissal on the grounds that the plaintiffs Pemberton were barred by the limitations of § 516.050, RSMo 1969. The motion was sustained by the trial court and the plaintiffs Pemberton appeal the dismissal of their petition.

The issue for determination requires construction of the statutes of limitations on actions for the recovery of lands, among them, § 516.050 which provides:

If any person entitled to commence such action ... die during the continuance of any disability specified in section 516.030 [e. g. insanity] and no determination or judgment be had of the title, right or action to him accrued, his heirs . may commence such action . . .after the time in sections 516.010 to 516.090 limited for that purpose, and within three years after his death, but not after that period.

The parties concede that Maggie and Cora were mentally incompetent at the time the two deeds were executed — although there had been no formal adjudication to that effect. Thus, § 516.030 comes into play which provides:

If any person entitled to commence an action in sections 516.010 to 516.090 . be, at the time such right or title shall first descend or accrue, . . . insane . the time during which such disability shall continue shall not be deemed any portion of the time in sections 516.-010 to 516.090 . . . but such person may bring such action . . . after the time so limited, and within three years after such disability is removed; provided that no such action shall be commenced ... by any person laboring under the disabilities specified in this section, after twenty-four years after the cause of such action . . . shall have accrued.

The general statute of limitations, § 516.-010, establishes that no action for the recovery of lands shall be commenced after ten years from the accrual of the cause of action. This provision is incorporated by reference into § 516.030 and § 516.050.

In sum and paraphrase: § 516.010 requires a cause of action for the recovery of lands to be commenced within ten years of accrual. § 516.030 enlarges the period for the commencement of such an action for a person under disability to twenty-four years. § 516.050 allows an heir of a person who has died while still under disability an extension of three years, provided the deceased was “entitled to commence such action”.

The right to challenge the validity of the deeds to the Reeds first accrued to Maggie and Cora Pemberton on January 17, 1946, and October 22, 1946, when the instruments were executed. Smelser v. Meier, 271 Mo. 178, 196 S.W. 22, 25[4] (1917). At the death of Cora on November 18, 1947, this cause of action belonged solely to Maggie as the surviving joint tenant, and since her mental incompetency continued until her death on April 22, 1974, her right to challenge these conveyances expired altogether twenty-four years from their dates of execution — January 17,1970 and October 22, 1970, respectively. [§ 516.030].

The plaintiffs concede that Maggie was barred to commence these actions by limitations, but argue that their cause of action did not arise until they had an immediate right of possession, which accrued to them upon the death of Maggie. They direct this argument primarily to Tract B in which the aunts reserved a life estate; they confess the difficulty to assert this position as to Tract A in which no life estate was reserved, but insist nonetheless that since Maggie was under the appointment of a guardian their right of possession did not arise until her death. These contentions rest on the premise that even though Maggie as life tenant may have been barred by limitations, they as heirs were not. The plaintiffs do not tell on what basis they are entitled to the possession of the property nor do they say how their cause of action is saved from the operation of limitations.

The defendants Reed argue simply that because the twenty-four year period of limitations had run out on the Maggie Pember-ton cause of action, she was not at her death a “person entitled to commence such action” and so the three year extension of § 516.050 was unavailable to the plaintiffs as her heirs.

These contentions lead to the dispositive issue on appeal: If at the time of her death the right of Maggie Pemberton to challenge the deeds had expired by the operation of § 516.030, how did that affect the right of plaintiffs, as her heirs, to bring an action to set aside these conveyances on grounds of mental incompetency of the grantors and undue influence of the grantees?

The answer begins with the general rule in this state that a deed executed by a mental incompetent is voidable, not void, so that such a conveyance is sufficient to pass title to the grantee of a defeasible character, subject to defeat at suit of the grantor. Gibson v. Shull, 251 Mo. 480, 158 S.W. 322, 325[8, 9] (1913); Wigginton v. Burns, 216 S.W. 756, 759[3] (Mo.1919); McAnaw v. Tiffin, 143 Mo. 667, 45 S.W. 656, 658[3] (1897). Such a conveyance, therefore, has force and effect until the option to avoid it is exercised. 26 C.J.S. Deeds § 68, p. 790. While incompetent, the grantor, may not seek to defeat the grant, but his guardian may bring such an action for him. McAnaw v. Tiffin, supra, 45 S.W. 1. c. 658. [See also, §§ 475.130(1) and (3) as to the duty of a guardian of an incompetent to protect and preserve his estate and to prosecute and defend all actions brought for or against the ward.] Thus, the guardian for Maggie [apparently appointed on April 28, 1948] could have undertaken to disaffirm these deeds on her behalf.

The plaintiffs imply by their position that the failure of the guardian to pursue this action and the failure of Maggie to recover from her disability within twenty-four years do not prejudice their cause of action because their cause of action did not accrue until Maggie died. They rely on three cases: Hall v. French, 165 Mo. 430, 65 S.W. 769 (1901); Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010 (1949); and Wells v. Egger, 303 Mo. 26, 259 S.W. 437 (1929). These cases are of no relevance, but all involve heirs of a grantor who under the law of curtesy and dower occupied positions as vested remaindermen subject to a life estate in their mother (Hall v. French) or father (Allen v. Wiseman and Wells v. Egger). In each of these cases, the court ruled that the cause of action of the re-maindermen did not accrue until the termination of the preceding life estate, and as such, stand for the restatement of the general principle that a statute of limitations does not run as against vested remainder-men until the end of the particular preceding estate. Hughes v. Neely, 332 S.W .2d 1, 6[2-5] (Mo.1960). It is also a general rule that where there is a life estate with remainders over, a statute of limitations does not run against the life tenant. 2 Powell, Real Property, ¶ 275 (1976).

The plaintiffs cannot have the benefit of these principles, however, for they are not vested remaindermen, nor do they seek to protect any other previously acquired property interest as did the litigants in the cases cited. While Maggie lived, the plaintiffs as prospective heirs had no vested interest in her property and could not have challenged the conveyances she made to the Reeds. Cull v. Pfeifer, 307 S.W.2d 424, 426[2] (Mo.1957); Cox v. Fisher, 322 S.W.2d 910, 914[5, 6] (Mo.1959). They were merely heirs expectant or heirs apparent with only the possibility of inheritance from Maggie, not a sufficiently fixed interest in the property of the aunt to sue for cancellation of the deeds of that ancestor. Wass v. Hammontree, 77 S.W.2d 1006, 1009[4-5] (Mo. 1934); 26 C.J.S. Deeds § 69, p. 794.

The prior question here is not when the plaintiffs Pemberton cause of action accrued, but rather when — if at all — it came into existence. They had no cause of action during the lifetime of Maggie, so they must bring themselves within the provisions of § 516.050 in order to avoid the bar of limitations against their claim which accrued only upon the death of the aunt.

It is recognized that deeds executed by a grantor while mentally incompetent may be set aside at the instance of the heirs [Walton v. Van Camp, 283 S.W.2d 493, 499[8-10] (Mo.1945)] as may deeds procured through fraud. Lins v. Lindhardt, 127 Mo. 271, 29 S.W. 1025, 1030 (1895). In such actions the plaintiffs claim under the grant- or as heirs and stand in the same relation to the grantee as did the grantor. Walton v. Van Camp, supra, 1. c. 499[8-10]. The rationale for this principle considers that an heir succeeds to the rights of the grantor and thereby has sufficient interest in the deed to support a suit to challenge the transaction. 1 Powell, Real Property, ¶ 127, p. 490; 12 C.J.S. Cancellation of Instruments § 45.

On these principles, the plaintiffs Pemberton stand in the same relation to the defendants Reed as would Maggie as grant- or. Consequently, the contention of plaintiffs that even were their action against the Reeds not available to Maggie, plaintiffs may still assert it, must be rejected. Their right to set aside the deeds is derived from Maggie. The conclusion is inescapable that the twenty-four year statute of limitations of § 516.030 became an absolute bar to any action Maggie may have had against the Reeds on account of the two conveyances. That is the meaning given to [predecessor] § 516.030 by Barrett v. Allegheny National Bank, 6 Mo.App. 317 (1878), 1. c. 319:

[AJfter the lapse of twenty-four years [the statute] operates as a statute of absolute repose, and bars any action for the recovery of lands by any person laboring under the disability of coverture, infancy, insanity, or imprisonment, after twenty-four years from the time the cause of action accrued.

In the present case, the causes of action accrued on January 17, 1946, and October 22, 1946, [when the deeds were executed and delivered] and by operation of § 516.030 expired twenty-four years later on January 17, 1970, and October 22, 1970. At her death, therefore, Maggie was not a person entitled to bring an action to challenge the deeds, so the plaintiffs may not have the advantage of the three year extension of § 516.050.

The cases cited by the plaintiffs support this conclusion. In Hubbard v. Keen, 297 Mo. 29, 247 S.W. 1000, 1003[3, 4] (banc 1923), the heirs of the grantor challenged grantee’s claim of title by adverse possession to realty obtained by a deed from the grantor and her husband. Two disabilities were involved — coverture at the time the deed was executed and insanity fourteen years later — both of which lasted for more than twenty-four years. The case was further complicated by the fact that the heirs did not sue until four years after the grant- or died, and it was apparently on this basis that the court ruled their claim was barred. This case also supports the proposition that, “since the twenty-four year statute [§ 516.-030] had run before the woman grantor died, the three year statute [§ 516.050] would have no application, for, at the time of her death, she was not entitled to begin an action to recover the land”. Wheaton-Blackmar, Missouri Practice, Volume 12, § 5-192, p. 668.

Then, in DeHatre v. Edmunds, 200 Mo. 246, 98 S.W. 744 (1906), the plaintiffs were barred to challenge a deed executed by their mother while allegedly insane, where they first brought the action ten years after the original cause of action expired. See also Graham v. Wilson, 168 Mo.App. 185, 153 S.W. 83 (1913).

In conclusion, the passage of some twenty-eight years between the accrual of the causes of action to Maggie and Cora and the death of Maggie, bars the petition brought by plaintiffs. Their only interest in the conveyances comes through Maggie, and since § 516.030 operated in her lifetime to absolutely bar her from commencement of an action to recover the lands, the plaintiffs have no cause of action to pursue. Consequently, the provisions of § 516.050 are not available to them, and the dismissal of their petition by the trial court must be affirmed.

All concur.

      . Sampson v. Pierce, 33 S.W.2d 1039 (Mo.App. 1931) suggests a contrary conclusion. In that case, however, the characterization of the deed as void or voidable was not important to the decision, and statute of limitations was not involved.

      . As we have noted, § 516.050 allows an heir of one who dies under disability three years thereafter to commence an action to recover lands, but only if at the time of death, the person under disability was entitled to commence such action.


author: KELLY, Judge.

text:
    Merlin Russell MICHAUD, Plaintiff-Respondent, v. Ella RUCH, Defendant-Appellant.
    No. 37120.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.

      Raymond H. Vogel, Vogel & Frye, Cape Girardeau, for appellant.
    Francis Toohey, Jr., Perryville, Buerkle, Buerkle & Lowes, David G. Beeson, Jackson, for respondent.
   KELLY, Judge.

Ella Ruch, defendant-appellant, seeks to have this court reverse a decree of specific performance and judgment of the Circuit Court of Perry County whereby she was ordered to transfer title in certain described real estate situate in Perry County to the plaintiff-respondent pursuant to a contract for the sale of said real estate entered into between Mrs. Ruch and the plaintiff, Merlin Russell Michaud for a consideration of $38,-000.00 on August 27, 1972. We affirm.

Plaintiff filed his petition for specific performance of a contract he 'alleged he entered into with the defendant on August 26, 1972, for the purchase of a 266 acre farm owned by the defendant for a consideration of $38,000.00. According to the terms of the contract $3,800.00 of the consideration was to be paid to defendant upon the signing of the contract and an additional $6,200.00 upon delivery of the deed to the farm. The balance of $£¡8,000.00 was to be paid in equal annual installments over a 14 year period bearing interest at a rate of 6% per annum as evidenced by a promissory note in that amount secured by a first deed of trust on the farm. Defendant’s Amended Answer admitted ownership of the land, denied the other allegations of plaintiff’s petition, and alleged that on August 26, 1972 she was “weak of mind and incapable of managing and transacting ordinary business matters, was in a depressed state and mentally and emotionally overwrought, was subject to being influenced and coerced and over-reached and if said contract was signed by defendant, such signing was the result of such incapacity, mental and emotional state and of undue influence, coercion and overreaching.” She further alleged that she did not understand that the contract would be enforceable.

With the issues thus framed by the pleadings the cause came on for trial.

Plaintiff’s evidence was that after learning that defendant wished to sell her farm he contacted her and negotiated a sales contract. Over a period of several months he obtained financing for the agreed purchase price of $38,000.00, and then he, Harley Taylor and Janice Taylor, the wife of Harley Taylor, signed the contract for purchase of the farm from Mrs. Ruch. This contract had been prepared by defendant’s lawyer. At the time they signed the contract the Taylors and plaintiff were going to purchase the farm as partners, but in the interim plaintiff purchased the Taylors’ interest in the sales contract and agreed that the Taylors would no longer be subject to any liability thereon. At the time the contract was signed, on August 26,1972, plaintiff paid Mr. Brewer, defendant’s attorney, $3,800.00 in the form of a certified or cashier’s check, which defendant asked Mr. Brewer to keep and not cash. After plaintiff obtained an abstract of title he went to Mrs. Ruch and advised her that he was ready to close the sale, but she advised him that she did not think she would go through with it. Plaintiff consulted his attorney and a notice was sent to Mrs. Ruch that he was prepared to close the sale in the office of her attorney on December 13, 1972. When that date came to pass, plaintiff, Weldon Huber, the chief loan officer of the First National Bank of Perryville, Missouri, and plaintiff’s counsel went to Mr. Brewer’s office where plaintiff offered to either pay the entire balance due on the purchase price or, in the alternative, to deliver the balance of the purchase price according to the terms of the contract. Mr. Brewer refused to deliver a deed to the farm because defendant had not signed one and had informed him that she did not intend to complete the contract.

With respect to the defendant’s competency to enter into the contract with the plaintiff, plaintiff offered the testimony of Mr. Brewer and defendant’s granddaughter who testified that they considered the defendant fully capable of entering into the contract with the plaintiff in August, 1972. Defendant testified in the offices of a nursing home where she resided at time of trial, but her testimony was confusing. She had no recollection of the contract or whether she had signed it. She did not recognize Mr. Brewer and did not recall whether she ever wanted to sell the farm. She recalled running an ad in a newspaper — the Perry County Republican — advertising the farm for sale on December 1, 1971, when the advertisement was displayed to her. According to the record of the Perry County Memorial Hospital the defendant was hospitalized there on April 3, 1956 for hyperosto-sis frontalis interna. Records of St. Mary’s Hospital in St. Louis revealed that defendant was a patient in that Hospital between July 21, 1956, and August 19, 1956, when her condition was diagnosed as depressive reaction, antisocial reaction and chronic brain syndrome associated with cerebral arteriosclerosis. She was treated with psychotherapy and electric shock treatments and was discharged as improved. On April 12, 1964, she was admitted to St. Vincent’s Hospital in St. Louis with an admission diagnosis of involutional depressive reaction following her husband’s death the previous November. Although she wanted electric shock treatments they were not resorted to as part of her course of treatment and on April 16, 1964, she was discharged “on trial.” On September 30, 1964, the defendant was discharged from St. Vincent’s as improved.

Clarence Ruch and Francis Ruch, defendant’s sons, also testified and expressed an opinion that she was not competent to execute the contract in August, 1972. On interrogation by the trial court both admitted that they thought $38,000.00 was probably a reasonable price for the farm, in August, 1972.

After the conclusion of the evidence the defendant made a request for findings in the following form:

“REQUEST FOR FINDINGS
Defendant requests the Court to draft an opinion and to include therein a statement of the grounds for its decision and its findings on the following:
1. Whether or not defendant was suffering from any mental or emotional disability at the time the contract was executed.
2. Whether or not defendant was subjected to pressure or coercion to sign the contract.
3. Whether defendant fully understood the legal consequences of signing the contract.”

Thereafter, on April 10,1975, the defendant filed proposed findings and judgment, but these were not accepted by the trial court, and on the 16th day of April, 1975, the trial court entered its decree, including findings of fact and conclusions of law, directing the defendant to execute a deed to the farm, subject to the payment into the registry of the court the balance of the down payment of $6,200.00 and a note and deed of trust for $28,000.00, said note to bear interest at the rate of 6% per annum, payable semi-annually on July 10 and January 10, in an amount of $10,000.00 on January 10,1976, $10,000.00 on January 10, 1977, and $8,000.00 on January 10, 1978. Mr. Brewer was further ordered to turn over the check for $3,800.00 to the defendant and to deduct the costs from the deposit of moneys made by plaintiff into the registry of the court and the balance thereof to the defendant upon demand. The trial court further ordered that upon compliance with the terms of the decree by plaintiff title in fee simple absolute should be deemed vested in plaintiff.

Defendant filed her notice of appeal to this court in due time. She initially contends that the trial court erred in refusing to make findings as she requested as to whether she was competent to contract when the sales contract was entered into with plaintiff, whether she was subjected to pressure or coercion to sign the contract, and whether she fully understood the legal consequences of signing the contract. This point is without merit because the trial court found that the defendant was fully in charge of her faculties at the time she executed the contract, was fully cognizant of her property and her relatives, was fully in charge of her faculties, and had the advice of competent counsel prior to executing the contract. We rule this point against the defendant.

Defendant’s second point is that the trial court erred in finding that the only requirements for ordering specific performance are the mental competence of the parties, adequacy of consideration and that the vendee performed in accordance with the terms of the contract. She contends that this was error because the trial court had discretion to grant specific performance, which was not a matter of right; that the burden of proof was on the plaintiff to prove that a decree of specific performance was equitable under the evidence; that a less exacting standard of proof was required to induce the trial court to refuse specific performance than would have been required to reform the contract or to set it aside; and that the contract as written was inequitable because it provides for payment over a 14 year period to an 81 year old woman who was in need of funds for care in a nursing home.

Reduced to its most simple terms we conclude that what the defendant actually contends here is that the judgment of the trial court was against the weight of the evidence, or, in other words, was not supported by the evidence. Since Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), appellate courts in reviewing judgments of court-tried cases shall sustain such judgments unless there is no substantial evidence to support them, unless the judgment is against the weight of the evidence, unless the judgment erroneously declares the law, or unless the judgment erroneously applies the law, and appellate courts are admonished to exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.

Although there was some conflict in the evidence we find none of the infirmities enumerated in Murphy v. Carrón, supra, as grounds for reversal of a decree or judgment in a court-tried case present here and we therefore rule this point against the defendant.

Defendant’s third point, that the trial court erred in finding that the consideration for the contract was adequate, is likewise without merit. The thrust of defendant’s argument in support of this point is that the basis for the trial court’s finding of adequacy of the consideration for the purchase of the farm was based upon the testimony of defendant’s two sons—Clarence and Francis Ruch—adduced by the trial court’s interrogation of the witnesses. She argues that both of these witnesses were called during defendant’s case for the sole purpose of testifying with respect to their mother’s mental and emotional condition and were not prepared to testify as to the value of the land. This novel contention that a witness in a civil case may be examined on only those matters for which he or she are offered by one of the parties is unsupported by any authorities. Furthermore, no objection to this line of questioning was voiced by defendant’s counsel when it was elicited by the trial judge, no motion to strike was made, and therefore even if it was error (which we do not hold) it was not preserved for review in this court. Clarence Ruch had managed the farm for his mother over many years, possessed an intimate knowledge of its production, and it was his opinion that the price offered by the plaintiff to his mother for the purchase of the farm was reasonable. Mr. Huber, the bank appraiser, was likewise of the opinion that the purchase price was a reasonable one. We rule this point against the defendant.

Defendant’s final point, that the trial court erred in ordering the defendant to accept a note and deed of trust from Mr. Michaud alone in payment, is supported by argument which is of little assistance to us in ascertaining the crux of her point. In one paragraph she argues that the trial court must have concluded that there was something inequitable in a contract providing for payments over a 14 year period which would exceed the life expectancy of the 81 year old vendor. She then, in the following paragraph, shifts the focal point of her attack on the requirement that defendant accept the promissory note and deed of trust of the plaintiff, “a person who testified that he had no finances and who was a ruffian convicted several times of assault.” Ultimately, she argues, in her final paragraph, that even should the contract be specifically enforced, the contract itself provided for a note and deed of trust signed not only by the plaintiff, but also by the Taylors, who are not parties to the suit because they conveyed their interest in the contract to the plaintiff, and therefore refused to become liable on any note or deed of trust to the defendant.

To support this argument, defendant cites Jones v. Dewitt, 499 S.W.2d 524, 534[5] (Mo.1973), and 71 Am.Jur.2d, Specific Performance, § 211, p. 270, for the proposition that in rendering a decree of specific performance, the court has no power to decree performance in any other manner than according to the agreement of the parties and a court of equity cannot make a new contract for the parties or supply any material stipulation of the contract, but must enforce the contract according to its terms or not at all.

The “Real Estate Contract” of August 26, 1972, was between Ella Ruch as seller and Merlin Michaud and Harley J. Taylor and Janice Taylor, his wife, as the buyers for a purchase price of $38,000.00; $3,800.00 of the purchase price was to be paid by the buyers to the seller at the signing of the contract, $6,200.00 to be paid by the buyers to the seller on delivery of the deed and a promissory note for the balance of $28,-000.00 secured by a first deed of trust on the property, payable in 14 years with equal annual installments. The makers of the note were to have the privilege of prepayment without penalty at any time and the deferred payments represented by the note and secured by the deed of trust was to bear interest at a rate of 6% per annum payable annually. The seller was to pay in full all taxes up to the time the general warranty deed was delivered, but taxes for the year 1972 were to be paid by the buyers. Time for performance of the contract was not to begin to run until the abstract was delivered to the buyers.

Thereafter, on November 13, 1972, plaintiff, by written agreement of that date, purchased from the Taylors for $4,000.00 all right, title and interest they had in the aforesaid “Real Estate Contract,” and the plaintiff agreed to hold them harmless from any and all liability arising as a result of the contract aforesaid.

The general rule is that the as-signee of a land contract vendee may maintain a suit in his own name to enforce specific performance, if the vendee himself, but for the assignment, could have obtained such relief. In re Ferguson’s Estate, 124 Mo. 574, 27 S.W. 513[1] (Mo.1894); Anno. Remedy of specific performance as available to vendee’s assignee, 138 A.L.R. 205. The failure of the defendant to raise by motion or answer her contention that the Taylors are not parties to this proceeding constituted a waiver of this contention, Skidmore v. Back, 512 S.W.2d 223, 234[14] (Mo.App.1974), and we rule this point against the defendant.

Judgment affirmed.

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

      . The defendant did not incorporate into her final point any challenge to the power of the trial court to modify the decree as entered by the trial court changing the terms of the contract with reference to the term over which the balance due — $28,000.00—was to be paid from 14 years to a 3 year period, other than to argue that this was some evidence that the trial court “thought there was something inequitable in a contract which provided that an 81 year old female resident of a nursing home be paid for her land over a 14 year period, long past her life expectancy.” We do not believe that conclusion is inevitable under the evidence and concur in the trial court’s finding that under all of the evidence it was equitable to grant plaintiff specific performance and do not reach the question of the trial court’s power to modify the decree in this respect. As to the broad powers inherent in a court of equity we refer interested persons to Kerrick v. Schoenberg, 328 S.W.2d 595, 599[2] (Mo.1959).


author: CLEMENS, Judge.

text:
    Gregory K. O’BRIEN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38002.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.
    Crouppen, Walther, Zwibelman & Walsh, Myron S. Zwibelman, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chandler, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Motion under Rule 27.26, VAMR. In 1973 movant pleaded guilty to two charges of armed robbery and was sentenced to concurrent ten-year terms of imprisonment.

Movant has challenged his convictions in a post-conviction motion. He contends a psychiatric examination which found him fit to proceed before he pleaded guilty was so brief and perfunctory as to deny him due process.

The post-conviction trial court granted an evidentiary hearing. In 1972 on movant’s motion he had been admitted to Malcolm Bliss Mental Health Center for psychiatric examination. The first five days a resident physician gave him physical examinations and psychiatric evaluations. His appearance, behavior, “speech and thought patterns and other emotional and/or psychic factors,” were found to be normal. Additionally, at the evidentiary hearing, Dr. Vanderpearl, an experienced staff psychiatrist, based on the patient’s record history and his 1972 observation, opined that there was then sufficient information for him to conclude movant was then “able to understand ‘the nature of the proceedings against him’ as being able ‘to assist in preparing a defense.’ ”

Movant called Dr. Jacks, a psychiatrist. He testified that the 1972 medical records and psychiatric examinations given movant could — and did — warrant a finding movant was fit to proceed at his trial. Counsel’s assertions that movant’s 1972 examinations were inadequate are not only eonclusory but are refuted by the evidence.

Movant’s further Point Relied On— that he “was denied effective assistance of counsel" without stating wherein and why the court erred — is an abstract statement and preserves nothing for review. Rule 84.04(d).

Judgment affirmed.

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


text:
    STATE of Missouri, Respondent, v. Marvin HAWTHORNE, Appellant.
    No. 35891.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.
    John D. Connaghan, St. Louis, for appellant.
    Brendan Ryan, Circuit Atty., Thomas W. Shannon, Pros. Atty., Edw. Hupert, Asst. Pros. Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Defendant Marvin Hawthorne has appealed a judgment of the Court of Criminal Correction finding him guilty of operating a motor vehicle under a suspended driver’s license and assessing $100 fine.

This appeal has come to us on an agreed statement of facts in lieu of a transcript, as provided by Rule 81.13, V.A.M.R. We have been given an exhibit introduced at the trial court and the appellant’s brief. “On appeal from a judgment on an agreed statement of facts, or where the facts are not in dispute, the only question is whether the judgment is the proper legal conclusion.” State ex rel. Ciba v. State Tax Comm., 382 S.W.2d 645 (Mo.1964); Surface v. Ranger Insurance Co., 526 S.W.2d 44 (Mo.App.1975).

The stipulated facts: Approximately 9:30 P.M. on July 10, 1973 police observed defendant driving away from the establishment at 3223 Morganford Road. He was arrested for operating a motor vehicle while his driver’s license was suspended. Defendant explained to the officer that he was pursuing his employment as a musician, at that address, where he had been working from 5:30 to 9:30 P.M., and was on his way home. He produced a copy of an order of the magistrate court of Franklin County granting him limited privilege of operating his motor vehicle in connection with employment. There was no further evidence.

We are presented only with a question of law. Ciba, supra, 1. c. 651. We must affirm the judgment of the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30 (Mo.1976). Section 302.309.3(2), RSMo.1969, provides that when, as here, limited driving privileges have been granted “while so operating a motor vehicle within the restrictions and limitations of the court order the driver shall not be guilty of operating a motor vehicle without a valid driver’s license.”

We find the evidence insufficient to support defendant’s conviction.

Judgment reversed.

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


text:
    James LeRoy COCHRAN, Appellant, v. STATE of Missouri, Respondent.
    No. 38329.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.
    James LeRoy Cochran, pro se.
    John C. Danforth, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Frederick J. Dana, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Movant appeals the denial of his second Rule 27.26 motion. He seeks to set aside his conviction and ten-year sentence for armed robbery.

Movant’s first two grounds concern denial of his right to a speedy trial and failure to produce a police report at his trial. Both points were raised and denied on his direct appeal. See State v. Cochran, 366 S.W.2d 360[1, 2] (Mo.1963). They cannot be reconsidered in this post-conviction proceeding. Sweazea v. State, 515 S.W.2d 499[1] (Mo.1974).

Movant’s last three grounds concern identification testimony, cross examination of witnesses and jury instructions. These grounds not only concern trial errors but could have been raised in movant’s earlier Rule 27.26 motion filed and denied in 1970. Movant is thus doubly precluded from raising these three grounds in a collateral attack on his conviction. Brown v. State, 492 S.W.2d 762[4] (Mo.1973); Newman v. State, 481 S.W.2d 3[1] (Mo.1972).

Judgment affirmed.

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


author: PER CURIAM:

text:
    Edwin W. RILEY, Movant-Appellant, v. STATE of Missouri, Respondent.

      No. 10286.
    Missouri Court of Appeals, Springfield District.
    Dec. 29, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 12, 1977.

      Edwin W. Riley, pro se.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Edwin W. Riley pleaded guilty in June 1971 to a charge of burglary and stealing. The Circuit Court of Wright County sentenced him to concurrent terms of ten and five years’ imprisonment. He now appeals from denial, after evidentiary hearing, of his second motion filed under Rule 27.26, V.A.M.R. Counsel was appointed to represent movant in this appeal. However, he has elected to represent himself in propria persona and to submit the cause on the brief which he prepared.

The points relied on in movant’s brief are that the trial court erred in not finding (I) “that the plea of guilty was involuntary; that appellant did not understandingly plead thereto, nor intelligently waive his constitutional rights”; (II) “that appellant had been misled by state’s attorney . and defense attorney . . . into believing the charges in Texas, Christian, and Greene counties would be dismissed in return for a plea of guilty”; (III) “that appellant could not have raised the new evidence in prior 27.26 motion where counsel testified that he thought charges had been dismissed”; and (IV) “that appellant had sustained his burden of proof and that appellant had been denied effective assistance of counsel for his defense.” In his final point (V), movant claims the court erred in refusing to permit him “to file criminal charges on state’s attorney . . . and defense attorney . . . for collusion and perjury.”

Movant has the right to appeal his own case. Nevertheless, when he elects to represent himself in propria persona, he will be held to the same standards applicable to lawyers and charged with the same knowledge of required rules and procedures as if he were a qualified member of the bar. Hampton v. Gilmore, 511 S.W.2d 442, 443[1] (Mo.App.1974); Parker v. Wallace, 473 S.W.2d 767, 773[13] (Mo.App.1971). The so-called points, supra, are written in direct violation of the mandatory requirements of Rule 84.04(d), V.A.M.R. Point I does not say “why” it was error not to find that movant’s plea was involuntary or that mov-ant had not understandingly and intelligently waived his constitutional rights, whatever rights they may be. In point II movant does not set forth “wherein” and “why” he was misled into believing charges in other counties would be dismissed, and in point III he does not state “why” he could not have raised the new evidence (whatever it was) in the first 27.26 motion. “Wherein” and “why” movant sustained his burden of proof or was denied effective assistance of counsel, as averred in point IV, or “why” the trial court erred in not permitting him to file criminal charges at the second Rule 27.26 evidentiary hearing, can only be ascertained through surmise, guess and conjecture. Points such as those penned by movant, which represent nothing more than naked conclusions and abstract statements of supposed facts or law, preserve nothing for review on appeal. Kansas City v. Garza, 493 S.W.2d 659 (Mo.App.1973). The points relied on should precisely isolate the issues and facts relating thereto [State v. Dennison, 428 S.W.2d 573, 579[8] (Mo. 1968)], for an appellate court has no duty to seek through the transcript on appeal or other sections of the brief to come by an understanding of the intendment of points presented in abstract and conclusionary fashion. State v. Velas, 537 S.W.2d 881, 883[3] (Mo.App.1976); State v. Freeman, 489 S.W.2d 749, 752[2] (Mo.App.1973). As the state suggests, the appeal should be summarily dismissed at this juncture. State v. Yearwood, 510 S.W.2d 43, 44 (Mo. App.1974).

Before dismissing this appeal for failure to comply with Rule 84.04(d), we have this to say. The matters raised in points I, II and IV were included in mov-ant’s first motion and ruled against him. Successive motions are prohibited by Rule 27.26(d) where the grounds set forth in the subsequent motion were raised and ruled adversely to movant on a previous motion or where the grounds are new but could have been raised in the earlier motion. Newman v. State, 481 S.W.2d 3, 5 (Mo. 1972). If movant’s complaint as to ineffective assistance of counsel relates to his appointed counsel in his first postconviction proceeding, we now make him aware that such a complaint does not afford a basis for a second Rule 27.26 application. Harkins v. State, 521 S.W.2d 9, 11[3] (Mo.App.1975). As to the matter probably intended by point III, the transcript of the proceeding conducted at the time the guilty plea was entered reveals that the prosecuting attorney advised movant and the court that the prosecutors of Texas and Christian counties indicated they would dismiss charges pending against movant “if Mr. Riley entered a plea of guilty [in Wright County] and received this amount of punishment which we recommend.” (Our emphasis). Movant was likewise told the Greene County prosecutor would simply consider dismissal. The fact that the charges were actually and formally dismissed at a time later than expected by movant, did not serve to prejudice him as so found by the trial court. A postconviction motion “may be invoked only by one in custody claiming the right to have a sentence vacated, set aside or corrected.” Rule 27.26(b)(1). Movant’s undertaking to file criminal charges as part of a 27.26 proceeding had no relationship to such a right [cf. Laster v. State, 461 S.W.2d 839, 840-841[5] (Mo.1971)], and the court did not err in refusing the endeavor.

For reasons previously stated, the appeal is ordered dismissed.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin HANSEN, Defendant-Appellant.
    No. 10142.
    Missouri Court of Appeals, Springfield District.
    Jan. 3, 1977.

      John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Stephen P. Seigel, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Calvin Hansen was prosecuted for possession of burglar’s tools in violation of § 560.115 RSMo 1969. A Polk County jury found him guilty and assessed punishment of two years and six months imprisonment. Allocution, sentence, and judgment followed denial of defendant’s motion for a new trial. We reverse and discharge the defendant.

Officer Ontjes of the Bolivar police was driving his patrol car around the grounds of the Foremost milk plant in Bolivar about 3:00 a. m. on November 11,1974. The plant property is not fenced and is lighted by security lights. Trucks belonging to the milk company were parked near the plant and a driveway ran seventy-five yards south from this area to Highway 32.

The officer had initially approached the plant from the north. He then drove along the east side of the building and when he approached the area where the trucks were parked he saw a man, identified by him as the defendant, near the vehicles. “I don’t know whether he was standing or walking, but he was by the trucks,” the officer testified, and he “really couldn’t say” what the man was doing.

Upon seeing the approaching patrol car, the defendant ran south down the driveway, followed by Officer Ontjes in his vehicle. The defendant ran across Highway 32 and into a field. The officer, keeping the defendant in sight at all times, stopped the police car in the middle of the highway and went into the field with his pistol drawn. Officer Ontjes was some fifty to seventy-five feet behind the defendant when he called out that he would shoot if the latter did not halt. The defendant fell to the ground. The officer could not see the defendant because of the high grass so he returned to his car to obtain his flashlight. After getting his light, Officer Ontjes went back into the field where he found the defendant lying in the grass. The officer placed the defendant under arrest but voiced no reason at the time for such action. He testified he arrested the defendant “on suspicion of burglary.”

Following his arrest of the defendant and while they were in the field, the officer searched his prisoner for weapons but found none. He then took the defendant to the county jail where the defendant, at the officer’s request, emptied his pockets. Defendant had in his possession a penlight flashlight, a standard pocket knife, a drawstring cloth sack, and a pocket knife of ordinary size which had a broken blade. These items were seized by the authorities.

Defendant was lodged in jail and because it was still dark, Officer Ontjes resumed his night patrol and did not then return to the Foremost plant to investigate the suspi-cioned burglary. About 7:00 a. m. he went to the plant to investigate. He found no signs or evidence of burglary, attempted burglary, or tampering with the company’s trucks. He also searched the field where he had apprehended the defendant but found nothing. However, in the driveway, along the route defendant ran, and about twenty to thirty feet from where he had first seen the defendant, he found a Phillips screwdriver and a pair of pliers. There was nothing unusual about either the pliers or screwdriver, according to the officer, and he had no idea how they got onto the driveway or whom they belonged to.

The defendant was charged under § 560.-115 which is as follows:

“Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person any tool, false key, lock pick, bit, nippers, fuse, force screw, punch, drill, jimmy, bit, or any material implement, instrument, or other mechanical device whatsoever, adapted, designed, or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a building of any kind, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years, nor more than ten years.”

The pertinent portion of the information upon which the defendant was put to trial reads as follows: “ . . . did wilfully, unlawfully and feloniously have in his possession (or under his control) certain articles, to-wit: One pocket knife, one screwdriver, one pair of pliers, one pocket knife with modified blades, one draw string cloth sack and one penlight flashlight, being then and there material implements and mechanical devices adapted, designed and commonly used for breaking into a warehouse, store, shop or office building.”

At trial, defendant objected that the two pocket knives, the sack, and the flashlight were not burglar’s tools and that there was a lack of evidence concerning his custody or possession of the screwdriver and pliers. All of these items, however, were received into evidence and opined by Officer Ontjes, over objections, to be burglar’s tools.

In this appeal the defendant has advanced seven assignments of error, including the insufficiency of the evidence to support the jury’s verdict. Because we are of the opinion that the state failed to adduce sufficient evidence of each of the necessary elements to constitute the crime of possession of burglar’s tools, we need not consider defendant’s remaining assignments. In our view the sack and the flashlight are not burglar’s tools within the meaning of the statute and decisions of our supreme court, and we question whether the two pocket knives are such. The evidence falls far short of linking the custody, control, or possession of the pliers and screwdriver to the defendant. Additionally, there was no evidence of burglarious intent, and without this vital element there can be no valid conviction under § 560.115.

The leading case in this state on the construction and interpretation of § 560.115 RSMo 1969, is State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938 (1935), 103 A.L.R. 1301. The court ruled that the tools and devices mentioned in the statute meant breaking tools and consequently a “peep” flashlight, blackjack, and revolver were not burglar’s tools within the meaning of the statute even though such items were commonly carried by burglars. 338 Mo. at 244-246, 89 S.W.2d at 942-944. The court, recognizing that the tools and devices referred to by the statute could well be possessed for innocent purposes as well as burglarious activities, held that a criminal intent must be demonstrated in a prosecution under the statute before a conviction could be sustained. On this point the court concluded: “[W]e think there is enough in our statute to justify us in holding it means the tools and implements referred to therein must be made, mended, possessed, etc., by the accused with the general intent that they shall be used for a burglarious purpose.” 338 Mo. at 247-249, 89 S.W.2d at 945.

In Heffiin evidence that a few hours pri- or to the defendant’s arrest he and a companion had held up a cafe, taking five slot machines therefrom, was held competent and admissible on the issue of the intent accompanying defendant’s possession of screwdrivers and crowbars at the time of his arrest. 338 Mo. at 250, 89 S.W.2d at 946. Later decisions have recognized the necessity of proof of burglarious intent in a prosecution under the statute. Evidence that defendant was a known thief or burglar, an associate or reputed accomplice of burglars, or had prior criminal convictions has been held admissible as bearing on the intent with which the defendant possessed the tools.

Here, we start with the proposition that the penlight and cloth sack are not breaking tools. We assume, without deciding, the two pocket knives could constitute breaking tools. We are next confronted with the fact that although the officer had the defendant in sight at all times, according to the testimony, there was no evidence of defendant’s possession of the Phillips screwdriver or the pliers which were found in the driveway of the plant several hours later. Nevertheless, if we assume, as does the state in its brief, defendant had possessed these items when spotted by the officer, there still remains the lack of evidence to demonstrate that the defendant possessed the various items with the requisite bur-glarious or criminal intent. If he had prior arrests or convictions, was an associate of burglars and thieves, or was himself a burglar or thief, such evidence is not contained in the record before us. The state’s evidence negated any attempt to burglarize the plant or tamper with the trucks. Defendant was not in possession of recently stolen property. In short, there is no evidence to support the necessary element that the items found on the defendant or attributed to his possession were possessed by him with a burglarious or criminal intent. Suspicion founded upon assumptions does not supply the needed element.

The judgment is reversed and the defendant ordered discharged.

All concur.

      . Because we hold infra that there was no proof of the necessary element of burglarious intent, we find it unnecessary to decide whether the pocket knives are burglar’s tools.

      . State v. Medley, 360 Mo. 1032, 232 S.W.2d 519 (Mo. 1950), cert. denied, 340 U.S. 956, 71 S.Ct. 568, 95 L.Ed. 689 (1951) (prior arrests and convictions); State v. Lorts, 269 S.W.2d 88 (Mo. 1954) (accomplices associates of burglars and recently stolen safe); State v. Crouch, 353 S.W.2d 597 (Mo. 1962) (other paraphernalia commonly used by burglars); State v. Watson, 386 S.W.2d 24 (Mo. 1964), appeal dismissed, 381 U.S. 275, 85 S.Ct. 458, 14 L.Ed.2d 431 (1965) (conviction for bank robbery and reputation of defendant and accomplices as burglars); State v. Caffey, 436 S.W.2d 1 (Mo. 1969) (reputation as burglar); State v. Wing, 455 S.W.2d 457 (Mo.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971) (prior burglary convictions and known bank burglar); State v. Mick, 506 S.W.2d 35 (Mo.App.1974) (wanted for investigation of burglary).


author: PER CURIAM.

text:
    Dorothy Jean EDEN, Petitioner-Appellant, v. Vernon Duane EDEN, Respondent.
    No. 9991.
    Missouri Court of Appeals, Springfield District.
    Jan. 3, 1977.
    Robert P. Baker, Sarcoxie, for petitioner-appellant.
    Richard D. Copeland, Myers, Webster & Perry, Webb City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

Dissolution of marriage proceeding. Appellant complains of the court’s orders concerning division of property, maintenance, costs and attorney fees. The transcript filed herein does not contain a decree dissolving the marriage of the parties. The appeal is therefore premature. Rule 74.01, V.A.M.R.

Appeal dismissed.

All concur.


text:
    Rudolph Melvin CRUZ, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10247.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1977.
    Stephen P. Seigel, Springfield, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

The Circuit Court of Greene County denied, without an evidentiary hearing, appellant Cruz’s postconviction motion to vacate the twenty-year sentence he is serving for first degree robbery. We affirm.

Appellant’s first motion under Rule 27.26, V.A.M.R., was denied by the trial court and that judgment affirmed by this court in Cruz v. State, 515 S.W.2d 610 (Mo.App. 1974).

Appellant’s present motion charges ineffective assistance of counsel and the sentencing court’s consideration of allegedly unconstitutional prior convictions.

The ineffective assistance of counsel ground was included in appellant’s first motion and ruled against him. The matter of appellant’s 1952 convictions is not new and could have been raised in his initial motion.

Rule 27.26(d), V.A.M.R., prohibits successive motions where the ground presented in the subsequent application was raised and ruled adversely to the prisoner on the prior motion or where the ground presented is new but could have been raised in the earlier motion. The purpose of this rule is to prevent successive motions on grounds known at the time of filing a first motion although such grounds were not raised in the original motion. Newman v. State, 481 S.W.2d 3, 5 (Mo.1972); Harkins v. State, 521 S.W.2d 9 (Mo.App.1975).

The trial court did not err in denying appellant’s second motion without an evi-dentiary hearing.

Judgment affirmed.

All concur.


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Wilbert PETERSON, Defendant-Appellant.
    No. 37210.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 4, 1977.

      Crouppen, Walther, Zwibelman & Walsh, P. C., Roy A. Walther, III, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction entered on a jury verdict whereby he was found guilty of stealing property with a value of $50 or more, and a sentence of eight (8) years in the custody of the Department of Corrections.

For reversal of his conviction, defendant charges that the court erred by (1) failing to declare a mistrial after improper impeachment of a defense witness; (2) refusing to declare a mistrial when the prosecutor impeached a defense witness by the use of an unsubstantiated conviction; and (3) improperly admitting into evidence a state exhibit. We affirm.

Because defendant does not attack the sufficiency of the evidence, no detailed narration of the facts is necessary.

During the cross-examination of Miss Joan Simmons, the sole witness for the defense, the prosecutor asked her, “What crimes have you been convicted of?” She replied, “None.” The prosecutor inquired, “You weren’t convicted of prostitution in the State of New York?” Miss Simmons replied, “No sir.” Immediately defendant’s attorney said, “Objection; its a city ordinance violation and, therefore, an unimpeachable matter. I would ask for a mistrial at this time.” After defendant’s request for a mistrial was denied, the matter rested.

Prom this colloquy, defendant raises and the state joins therein a false issue. Defendant contends that his witness Miss Simmons was improperly impeached by the use of a conviction for prostitution that occurred in the state of New York. Under New York law, prostitution is a misdemeanor. McKinney’s Consolidated Law of New York Annotated, Penal Law, § 230.-00, as Amended, 1969. In Missouri prostitution is neither a felony nor a misdemeanor, but is regulated by municipal ordinances; thus, at most, an ordinance violation which is not a crime is but rather a civil proceeding. Consequently, because our Supreme Court has defined an impeachable crime within the meaning of § 491.050, RSMo 1969, as being any felony or misdemeanor conviction on the record of the witness, Fisher v. Gunn, 270 S.W.2d 869 (Mo. 1954), the violation of a municipal ordinance has been held not to be an impeachable crime within the meaning of § 491.050. In this posture defendant frames the issue to be whether an offense declared by a sister state to be a misdemeanor but only an ordinance violation in the forum state may be used for impeachment purposes within the ambits of § 491.050 and our decisional law.

While the issue as joined by defendant and the state poses an interesting problem, the issue is not ripe for our decision under the present record.

First, Miss Simmons was not impeached. The prosecution merely asked her whether she had been convicted, thus laying the foundation, but Miss Simmons unequivocally denied that she had been convicted for prostitution. Consequently, if the state wished to take exception to her answer, it was incumbent upon it, being unable to develop a conviction by her affirmative answer on cross-examination, to put into evidence a certified, authenticated copy of the judgment roll or judgment of conviction of the New York court. Not only was this not done, but also the matter was not pursued any further. Because, in our view, the record does not positively show that Miss Simmons was impeached, we rule this point against defendant.

Turning next to defendant’s second allegation of error, we note that at the time the prosecutor questioned Miss Simmons about the prostitution conviction, defendant objected on the ground that it was an ordinance violation and therefore not proper impeachment. In his motion for a new trial defendant repeated not only his original objection before the trial court but also contended that the question inflamed and aroused the passions of the jury. On this appeal defendant, for the first time, argues the bad faith of the prosecutor in asking a question about a prior conviction in the presence of the jury, without any substantiation either by offering to prove or proving such a conviction. It is elementary that a point on appeal must be based upon the theory voiced in the objection at trial and that one cannot expand on appeal the objection as made. State v. Atkins, 494 S.W.2d 317 (Mo.1973) and State v. Kerr, 531 S.W.2d 536 (Mo.App.1976).

Under the circumstances set forth herein, we hold that defendant’s second point has not been preserved for review because the ground now urged was neither presented to the trial court by objection nor stated in defendant’s motion for a new trial. State v. Scott, 487 S.W.2d 528 (Mo.1972) and State v. Bolden, 525 S.W.2d 625 (Mo. App.1975).

We rule that defendant’s final allegation of error pertaihing'td the admission into evidence of one of the state’s exhibits has not been preserved for review. Here the state offered the exhibit into evidence and the defendant objected generally without any statement of reasons. Because defendant’s general objection fails to fall within any of the three exceptions to the rule that a general objection preserves nothing for review; i. e., (1) the ground for exclusion was obvious to both the judge and opposing counsel, Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646 (1945); (2) the evidence was inadmissible for any purpose (State v. Rauscher Chev. Co., 291 S.W.2d 89 (Mo.1956); and (3) the omitted ground was one that could not have been obviated, we hold defendant’s point has not been preserved for review. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761 (1943).

Accordingly, judgment is affirmed.

STEWART and RENDLEN, JJ., concur.

      . All statutory references are to RSMo 1969.


text:
    Marvin C. BYNUM, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37707.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 4, 1977.
    Kevin M. O’Keefe, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James Barta, Asst. Circuit Atty., Terry Adelman, Asst. Public Defender, St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Marvin C. Bynum, serving four concurrent seventeen year sentences for two counts of first degree robbery by means of a dangerous and deadly weapon, forcible rape and assault with intent to maim with malice following pleas of guilty, appeals from the order of the trial court summarily denying his Rule 27.26 postconviction motion. He contends that the trial court erred in failing to grant him an evidentiary hearing because his 27.26 motion stated grounds which entitled him to relief. These grounds were that the sentence imposed on him was increased because the trial court considered nonexistent prior convictions of defendant, and that defendant was denied effective assistance of counsel. We affirm.

Rule 27.26(e) establishes the standard by which a trial court determines whether or not an evidentiary hearing is required on movant’s motion to vacate, set aside or correct sentence. Movant’s 27.26 motion must plead facts, not conclusions, which, if true, would entitle him to relief. Smith v. State, 513 S.W.2d 407, 410[1] (Mo. banc 1974). Movant alleged mere conclusions without facts to support his grounds; that is, (1) that the trial court gave consideration to defendant’s prior “conviction”, and (2) that a comment by counsel for defendant caused the trial court to increase defendant’s punishment.

The record of the guilty plea proceeding reveals only one reference to defendant’s background. Counsel for defendant informed the court that defendant had been committed to and eventually released from the State Mental Hospital as a criminal sexual psychopath. In its context, this information was offered to indicate that defendant was presently suffering no mental disease which would impair his guilty pleas. There was no discussion in the record at any time of alleged past crimes of defendant, and no evidence in the record showing past crimes. His motion admitted commitment as a criminal sexual psychopath on an assault charge. The proceeding during which an individual is found to be a criminal sexual psychopath is civil, remedial and curative rather than criminal and punitive. State ex rel. Wright v. MacDonald, 330 S.W.2d 175, 177[3] (Mo.App.1959); §§ 202.700-202.770, RSMo 1969. But the trial court could properly consider this prior judicial determination in sentencing defendant because the commitment related to the background, character and propensities of defendant which are proper subjects of inquiry. State v. Jackson, 476 S.W.2d 540, 542[2] (Mo.1972); State v. Cline, 452 S.W.2d 190, 195[13,14] (Mo.1970); State v. Goforth, 535 S.W.2d 464, 468[7] (Mo.App.1976).

Defendant’s contention that he was denied effective assistance must also fail inasmuch as this contention depends upon a finding that the trial court relied on materially false information of defendant’s past crimes in affixing punishment. The record of the guilty plea proceeding and the matters alleged in defendant’s motion conclusively refute such a finding and show that defendant is entitled to no relief on that ground, or on the ground of ineffective assistance of counsel.

Finally, defendant cannot simply rely for relief on the fact that his co-defendant, who was sentenced by the same court on the same charges, received a lesser sentence than defendant. This contention may not be considered on a 27.26 motion because the sentence of seventeen years imprisonment was within the statutory limits authorized for each of the crimes in question. Duncan v. State, 524 S.W.2d 140, 142[3] (Mo.App.1975).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Louis GREENLAW, Defendant-Appellant.
    No. 37217.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 4, 1977.

      Robert C. Babione, Public Defender, Kent W. Fanning, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, Mo., for plaintiff-respondent.
   DOWD, Judge.

Louis Greenlaw was found guilty of first degree robbery by means of a dangerous and deadly weapon, and sentenced to eight years imprisonment. Both issues raised on appeal relate to his pre-trial motion to suppress identification testimony.

Disposition of these issues does not require a detailed discussion of the facts. The record shows that on March 25, 1966, three men entered a dentist’s office and robbed the dentist, two employees and two patients. The following May, defendant was identified at a show-up by the dentist and an employee. Before trial in June, 1975, a hearing was held on defendant’s motion to suppress identification testimony, which alleged that the pre-trial confrontation procedures were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law.

The dentist, one employee, and one patient testified at the hearing. The patient had never been called to a show-up, nor had she seen defendant since the robbery, either in person or in photographs, prior to the motion hearing. At the hearing she was asked if she could select defendant from a line-up if one were held that day. The court sustained an objection to the question, stating that it was hypothetical and called for a conclusion for which there was no basis.

The trial court denied defendant’s motion, finding the pre-trial confrontations not unnecessarily suggestive or conducive to mistaken identification, and finding the in-court identifications of the three witnesses untainted by and independent of pre-trial confrontations, and based on the witnesses’ own observations.

At trial, each of the three witnesses identified defendant as one of the robbers, and stated the basis of the identification. No objection was made at trial to the identifications.

Defendant asserts first that the question excluded by the trial court was properly framed to explore the patient’s competence to identify him, as part of the “totality of circumstances” surrounding her identification. Since no line-up was held, however, the question was clearly speculative and without basis in fact. Testimony of that nature is not admissible. State v. Hewitt, 259 S.W. 773, 780 (Mo.1924); State v. Tammons, 522 S.W.2d 648, 650 (Mo.App. 1975).

Defendant argues in his second point that the trial court erred in denying his motion, since the show-ups attended by the dentist and his employee were unconstitutionally suggestive. An issue of constitutional proportions, in order to be preserved for appeal, must be kept alive at each opportunity. State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974). Since defendant did not object at trial to identification by these witnesses, he has failed to preserve the issue he now raises. State v. Rice, 522 S.W.2d 656, 658 (Mo.App.1975).

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.


text:
    CITY OF SPRINGFIELD, Missouri, Plaintiff-Respondent, v. Joseph P. BECKER, Defendant-Appellant.
    No. 10100.
    Missouri Court of Appeals, Springfield District.
    Jan. 5, 1977.
    Lyndel H. Porterfield, Springfield, for plaintiff-respondent.
    Robert W. Freeman, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

Defendant Joseph Becker appealed his municipal court conviction of driving while intoxicated to the Circuit Court of Greene County. Trial by jury was waived and the court found the defendant guilty of the ordinance violation and assessed a fine.

The transcript does not show judgment was entered on the court’s finding. There being no judgment, this appeal is premature and must be dismissed.

It is so ordered.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Ellis DAVISON, Defendant-Appellant.
    No. 10097.
    Missouri Court of Appeals, Springfield District.
    Jan. 6, 1977.

      John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Gregory K. Johnson, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Robert Ellis Davison was convicted of first degree burglary [§ 560.040, RSMo 1969] and sentenced to ten years imprisonment. In this appeal he contends the court abused its discretion in denying his motion for a continuance and committed error in giving the verdict directing instruction. We affirm.

The sufficiency of the evidence to support the jury’s verdict is not questioned. Defendant and an accomplice broke into and entered a locked residence in Springfield, Missouri. Upon gaining entry, the two suddenly found themselves confronted by the owner of the house and his brother, both of whom were armed. The accomplice apparently made a successful getaway but defendant was held at gunpoint until authorities arrived and took him into custody.

Prior to the start of the defendant’s trial his attorney made an oral motion for a continuance because of the absence of defense witness McDaris, an asserted material witness. The motion was opposed by the state because the witness had not been subpoenaed either in the pending trial or an earlier trial and McDaris’ purported testimony would be cumulative to the testimony another defense witness would give. A stipulation was entered into as to what witness McDaris would testify to if present, and it was read to the jury without objection as a part of the defendant’s case.

The trial court is vested with discretion in granting or denying a continuance, State v. Cuckovich, 485 S.W.2d 16, 21-22 (Mo. banc 1972), and we are not to interfere with that court’s ruling unless there is a showing that it abused its discretion by acting arbitrarily, capriciously, and oppressively. State v. Reece, 505 S.W.2d 50, 52 (Mo.1974); State v. Winters, 525 S.W.2d 417, 423 (Mo.App.1975). Defendant has wholly failed to make such a showing in this case. Furthermore, defendant failed to comply with Rule 25.08, V.A.M.R., governing continuances, and such noncomplianee is, of itself, a sufficient ground for denying the continuance. State v. Cuckovich, supra, 485 S.W.2d at 21; State v. Martin, 515 S.W.2d 802, 804 (Mo.App.1974). Last, but not least, is defendant’s failure to demonstrate any prejudice by the court’s action. The McDaris testimony is practically identical to that given by another defense witness, and by stipulation of the parties the McDaris testimony was read to the jury by the defendant. We find no error.

Defendant complains that the omission of the words “of the house” following the word “door” in the third paragraph of MAI — CR 7.20 constitutes reversible error. We do not agree. True, the Supreme Court in adopting the Missouri Approved Criminal Instructions made it clear that giving or failing to give an instruction in violation of Rule 20.02 constitutes error, but paragraph (e) of that rule specifically states the prejudicial effect is to be judicially determined. Not every deviation is fatal [State v. Billingsley, 534 S.W.2d 484 (Mo.App.1975)] and a defendant must show how he was prejudiced by the deviation. State v. Fox, 521 S.W.2d 507, 511 (Mo.App.1975). The instruction, read as a whole, makes it clear that the defendant could not be convicted of first degree burglary unless the evidence demonstrated and the jury found that he (and another) forcibly entered the dwelling house described in paragraph one of the instruction by “breaking the outer door by force” or “breaking into the house in any manner with the assistance and aid of a confederate, then present, aiding and assisting.” We do not find the omission prejudicial.

Defendant also contends that the alternative submission of means of breaking and making entry into the house resulted in error because there was no evidence to indicate he broke into the dwelling in any manner other than by breaking the outer door. In his brief the defendant acknowledges that the Notes on Use following MAI — CR 7.20 permit submission of alternative means of breaking and making entry, but he argues there was no substantial evidence to support the disjunctive submission of “breaking into the house in any manner with the assistance and aid of a confederate, etc.”

The owner of the house and his brother heard a knock on the outer door, followed by a “loud bang.” Shortly thereafter, the defendant and his accomplice were observed inside the house. From this evidence and the physical damage to the door it is a fair inference that entry was gained via forcibly breaking the door. The alternative submission is not inconsistent with the first submission. In this case the same evidence supports both submissions. Defendant’s point is denied.

The judgment is affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Rex E. PECK, Defendant-Appellant.
    No. 10356.
    Missouri Court of Appeals, Springfield District.
    Jan. 7, 1977.

      Loren R. Honecker, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Appellant Rex E. Peck, tried as a second offender, was found guilty of burglary in the second degree [§ 560.070 V.A.M.S.] and was sentenced to imprisonment for eight years.

Appellant’s first point is that the information under which he was tried is insufficient to support the conviction “in that it fails to allege ownership .of the allegedly burglarized premises.”

The information, after pleading the prior convictions, alleged, as applicable here: . . that Rex Eugene Peck on or about the 5th day of June, 1974, in the County of Greene and State of Missouri, did . break into and enter a building used and occupied by Grant Hardware, located at 2301 College, Springfield, Missouri, . without the consent of the owner.

Rule 24.01 V.A.M.R., at the time of the proceedings below, provided, in pertinent part: “. . . [T]he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. ... It need not contain . . . any other matter not necessary to such statement.”

Appellant argues that the information “identifies the burglarized premises and sets out the name of the business conducted therein, but fails to allege ownership of either the business or the premises in any individual, partnership or corporation.”

Under Missouri law an information for burglary must “set out the ownership of the burglarized premises,” although this requirement is satisfied by an allegation of occupancy or possession. State v. Rist, 456 S.W.2d 13, 15[1] (Mo.1970). It is not necessary to allege the legal status of the owner or occupant, that is, whether it is a corporation, partnership or individual. State v. Ford, 403 S.W.2d 611, 612[1] (Mo. 1966).

There are two reasons for the requirement that the identity of the owner or occupant of the place burglarized be contained in the information: (1) to show that the building alleged to have been burglarized was not the building of defendant; and, (2) to identify the offense so as to protect the defendant from a second prosecution for the same offense. Rist, supra, at p. 15.

For support of his position appellant relies principally upon three cases: State v. Schultz, 295 S.W. 535 (Mo.1927); State v. Simpson, 317 Mo. 398, 295 S.W. 739 (1927); and State v. Ford, 403 S.W.2d 611 (Mo. 1966). In those cases, each involving the offense of burglary, the indictment or information was held to be fatally defective. In Ford the court said that the information “wholly fails to contain any allegation concerning the ownership of the building,” and the court also said “the allegation here is precisely the same as that in” Schultz and Simpson.

A comparison of the information in the case at bar with its counterparts in Schultz, Simpson and Ford, discloses that it is more educative than are they. In Schultz the germane language of the indictment was “did . . . break . . . and enter a certain building, to wit, a store building known as House’s hardware and dry goods store, located at 4817 Prospect avenue, Kansas City, Missouri . . . .” In Simpson the language was “did . . . break . and enter a certain building, to wit, a building located at 217 West Ninth street, in Kansas City, Jackson county, Mo., and known as the Savoy Pharmacy . .” In Ford the language was “did break and enter into the Crossroads Cafe, a building or enclosure in which are kept goods.”

Ford contains an instructive list of burglary informations, some held to be sufficient and others insufficient with respect to the feature involved here.

In the following cases, each of which involved the offense of burglary, the indictment or information was held to be sufficient with respect to the allegation concerning ownership of the burglarized premises: State v. Eaton, 394 S.W.2d 402 (Mo.1965); Stanfield v. State, 442 S.W.2d 521 (Mo. 1969); State v. Rist, 456 S.W.2d 13 (Mo. 1970).

In Eaton the pertinent language was “did . [b]reak and enter into the Strat-ton Produce Company building . . . .” The information also designated the county in which the building was located. In Stan-field the language was “did break and enter a certain store, shop or building, located on Highway 71 South, Harrisonville, Missouri, the property of Ny-man’s Food Center . . . In Rist the language was “did . . . break . and enter ... a building housing P. N. Hirsch & Co. . . . located in the Eastgate Shopping Center in Trenton, Grundy County, Missouri . . .

Eaton, which was decided prior to Ford, made no mention of Schultz or Simpson. It did, however, list certain “older cases” and said, at p. 404: “These older cases do hold that an indictment or information is insufficient if there is a failure to allege the ownership, or to specify the status of the owner (e. g., individual, corporation or partnership) therein, as being matters which the defendant is entitled to know. The rule in those cases, however, has been specifically overruled by this court in later cases on the point here raised.”

The language “the Stratton Produce Company building . . . ” is no more informative than the language “a building used and occupied by Grant Hardware, located at 2301 College, Springfield, Missouri.”

Stanfield distinguished Ford by saying that the information in Ford “contained identity of the burglarized building but omitted entirely any allegation of ownership.” (Emphasis added)

Stanfield involved an information which gave the address of the building, as does the instant information, and then referred to it as “the property of Nyman’s Food Center.” The opinion does not disclose the legal status of “Nyman’s Food Center,” that is, “whether corporation, partnership or individual,” and it pointed out that legal status need not be pleaded in the information, citing State v. Zammar, 305 S.W.2d 441, 442[1] (Mo.1957).

Surely the language “a building used and occupied by Grant Hardware” is as informative as the language “the property of Ny-man’s Food Center.” It could not reasonably be maintained that an information using the term “Grant’s Hardware” would be sufficient, on the authority of Stanfield, but that an information using the term “Grant Hardware” would fall short of sufficiency.

The supreme court pointed out in Rist, at p. 15, that Schultz, Simpson and Ford “involved allegations which merely identified the building, but did not adequately allege ownership or possession in some individual, partnership or corporation.” That comment is of course a valid one. To say that a building is “known as House’s hardware and drygoods store” is not equivalent to saying “a building occupied by House’s hardware and drygoods store.” To say that a building is “known as the Savoy Pharmacy” is not equivalent to saying “a building occupied by the Savoy Pharmacy.” To say that “defendant did break and enter a building located at 1600 Pennsylvania Avenue and known as the White House,” is not equivalent to saying “a building, located at 1600 Pennsylvania Avenue, used and possessed by White.”

Rist also pointed out that the allegation there, “a building housing P. N. Hirsch & Co.,” is equivalent to the allegation “a building occupied by P. N. Hirsch & Co.” In the case at bar the information alleged both use and occupancy of the building by Grant Hardware. As Eaton and Ford, both supra, held, it was not necessary for the information to state whether “Grant Hardware” was a corporation, partnership or individual.

The language of the information under review was sufficient to show that the building alleged to have been burglarized was not the building of the appellant. Further, the language was sufficient to identify the offense so as to protect the appellant from a second prosecution for the same offense.

Appellant’s first point has no merit.

Appellant’s second point is that the evidence is insufficient to support the conviction “in that the testimony presented by the state was inconsistent, contradictory and inherently unworthy of belief.” This point is so lacking in merit that it borders on being frivolous.

The state’s evidence showed that the burglarized building was closed and locked at 6 p. m. on June 4,1974. At 2:30 a. m. on June 5 six witnesses were summoned to the scene by a burglar alarm. Five of them were police officers. The defendant and an accomplice were found hiding on the roof of the building. Entry had been effected by making a hole in the roof. Articles taken from the store, together with a ladder and burglary tools, were found on the roof near where the two men were hiding. All six witnesses, each of whom had ample opportunity to observe appellant at the scene, positively identified him as being one of the two men on the roof. Approximately 30 minutes after the two men had been taken into custody at the scene, and while they and the witnesses were still there, appellant escaped.

Appellant does not assert that the evidence of the state is deficient with respect to the proof of the elements of the offense charged. The inconsistencies and contradictions of which appellant complains refer to differences in the testimony of the state’s witnesses with regard to appellant’s height, the length of time he was in custody prior to the escape, and whether or not there had been any discussion among the state’s witnesses with regard to their testimony prior to the giving of it.

“ ‘Merely because testimony is conflicting its probative force is not destroyed. The jury may believe the testimony of the one witness or of the other. It is the province of the jury to resolve such conflicts. . The jury resolved the conflict of testimony against the accused. In so doing, we find its verdict was supported by sufficient evidence.’ ... It was the duty of the jury to take into consideration all of the evidence and ‘[wjhere the evidence of the state conflicted on minor points, they could select from that conflict such parts as seemed to them most reasonable.’ ” (Citations omitted) State v. Cox, 478 S.W.2d 339, 341[3, 4] (Mo.1972).

There is no error in the matters of record reviewed pursuant to Rule 28.02 V.A.M.R.

The judgment is affirmed.

All concur.

      . In State v. Peterson, 305 S.W.2d 695, 698 (Mo.1957) it was held that a burglary information charging that a certain building was “used by” a certain person was “a good and sufficient charge of ownership of the building or premises.”

      . “[I]t is usually not necessary to allege who owns the legal title to the building, but it is sufficient to allege the occupancy or possession of the premises at the time they were burglarized.” State v. Ford, 403 S.W.2d 611, 612 (Mo. 1966).