author: SIMEONE, Presiding Judge.

text:
    Ronald McCRARY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 36400.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 23, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.

      Charles D. Kitchin, Public Defender, and Kent Fanning, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., and Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., and Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

I

This is an appeal from an order of the circuit court of the City of St. Louis entered July 19, 1974, denying movant-appellant, Ronald McCrary’s motion to vacate sentence pursuant to Rule 27.26 imposed after appellant was found guilty of the offense of illegal possession of heroin. For reasons hereinafter stated we affirm the order.

On September 23, 1969, Mr. McCrary was charged with the offense of possessing a certain quantity of heroin. § 195.020, RSMo 1969. The information alleged prior convictions and that on August 18,1969, the defendant did “then and there unlawfully and feloniously have in his possession and under his control a certain quantity of a narcotic drug, to wit: 14.71 grams of HEROIN . . . .” He was arraigned and pleaded not guilty. On June 4, 1970, mov-ant filed a motion to suppress the evidence on the ground that “there existed no probable cause for the arrest and the giving of defendant a ticket was an attempt to render validity to an otherwise unlawful arrest.”

McCrary waived a jury trial and was tried to the court on June 4, 1970. The motion to suppress was taken with the cause.

At the trial, Patrolman Burleigh Howell of the St. Louis Metropolitan Police Department testified that at about 10:45 p. m. McCrary was operating a motor vehicle without taillights, and the officer stopped him. Officer Gus Kolilis was with Officer Howell. “When he [McCrary] got the automobile to the curb, he got out of the automobile on the left-hand, driver side, he had a piece of paper in his hand and he came back to us and said, here is my license. I [Howell] informed him he was under arrest for no taillights and was starting to write some information down where we were standing there and he started to put his hand in his right rear pocket, at which time I grabbed his arm, put handcuffs on him and I found in his right rear pocket two condums [sic] or prophylactics full of some material and I asked him what it was and he said it was dirt and I said, dirt, and he said, okay, it’s heroin. . . . ” McCrary was then placed under arrest for possession of heroin. No objection was made to the officer’s statement.

On cross-examination, it was brought out by retained defense counsel that at the time the officer stopped McCrary “for the taillight” he did not know of any other crime the defendant had committed. The officer testified that the defendant was stopped “to give him a ticket for no taillights” and that he handcuffed the defendant when “he put his hand into his [rear] pocket.” Defense counsel referred to the statement made by McCrary as the basis for placing him under arrest for heroin.

The only other witness at the original trial was Miss Merilyn Ruemmler, a crimi-nalist with the St. Louis Police Department. She analyzed and identified the two vials taken from the defendant as containing heroin.

The trial court found the defendant guilty of possession. After overruling a motion for new trial, granting allocution and finding prior convictions, the court, on September 18, 1970, sentenced the defendant to ten years in the department of corrections.

McCrary appealed the conviction to the Supreme Court. On appeal, his only contention was that the search was unlawful. He did not appeal on any other ground. He did not raise the issue of the inculpatory statement as being in violation of his Miranda rights. On appeal, the Supreme Court held that the arrest was lawful and that there was probable cause for the search and seizure incident to the arrest, and affirmed the judgment. State v. McCrary, 478 S.W.2d 349 (Mo.1972).

Then on January 30, 1973, McCrary filed this motion to vacate. He alleged some eleven grounds only two of which are preserved and which are in issue on this appeal from the denial of the motion to vacate. In his motion he contends that (1) the search and seizure was unlawful and (2) a “failure to advise movant of his constitutional right’s [sic] prior to interrogating him and obtaining an alleged confession was a violation on the security of movant right’s [sic] under the 5th-6th amendments and made applicable to the states . . .” Counsel was appointed. In due time the state moved to dismiss the motion for the reason that movant has failed to state any ground for which the court “can grant him any relief . . .

On July 19, 1974, at a hearing on the motion to dismiss, the trial court stated: “The State’s Motion to Dismiss the Motion to Vacate as to Specifications 1 through 9 [which included the two points above] will be granted on the grounds those points either were raised on direct appeal or should have been. . . (emphasis added). On the same date, the trial court entered its order sustaining the state’s motion to dismiss and denying the motion to vacate. McCrary appeals that order.

II

On this appeal, he contends that the motion to vacate should have been granted and the sentence vacated because (1) the “search conducted . . . upon his arrest for a traffic violation was outside the scope of those [searches] permissible under the Fourth and Fifth Amendments to the Constitution of the United States made applicable to the States through the Fourteenth Amendment . . . and (2) “the failure to advise the movant of his rights under the Constitution of the United States made the subsequent use of a confession obtained under such circumstances a violation of movant’s rights under the Fifth and Sixth Amendments to the Constitution of the United States made applicable to the States . . . .”

McCrary argues that the search and seizure was illegal because it was incident to his arrest for a traffic violation. He further alleges that the “confession” was obtained in violation of the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and contends that his statement, “okay, it’s heroin,” was used in the trial although no Miranda warnings were given prior to making the statement. He further contends there was no waiver of his rights.

The state, on the other hand, contends that the trial court properly denied the motion to vacate because (1) movant is foreclosed from raising the issue of search and seizure on this 27.26 motion since the issue was raised on direct appeal and decided adversely; (2) McCrary did not preserve the Miranda issue by filing a motion to suppress the inculpatory statement or by objecting to it at trial or by raising the issue by motion for new trial or on direct appeal; (3) the statement, “okay, it’s heroin,” was not rendered inadmissible under Miranda since the statement was not the product of “custodial interrogation” and (4) the statement could not in any event have been prejudicial since the nature of the substance found on movant’s person was properly established by the testimony of the criminalist (chemist), Miss Ruemmler.

We hold (1) that the claim of illegal search and seizure is not cognizable in this 27.26 proceeding; (2) that the admission of the inculpatory statement under the circumstances was not erroneous because Miranda is inapplicable to this situation; no warnings were required to be given; (3) that by not raising the Miranda issue at trial or on direct appeal, movant is foreclosed from raising this issue on his 27.26 motion and (4) that the admission of the statement, even if error, was not, under the circumstances, prejudicial.

A motion filed under Rule 27.26 is an independent civil action, which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a). The burden is on the movant to establish relief by a preponderance of the evidence. Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). In a 27.26 review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27.26(j); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974).

Ill

As to appellant’s point concerning an illegal search and seizure, the trial court was clearly correct in denying the motion to vacate. It has long been the law as expounded by our Supreme Court that a claim of illegal search is not cognizable in 27.26 proceedings. Beach v. State, 488 S.W.2d 652, 655 (Mo.1972); Brodkowicz v. State, 474 S.W.2d 822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971); State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 772, 774 (Mo.App.1974).

Movant’s claim must be denied on another ground. Under Rule 27.26(b)(3) a “ ‘proceeding under this Rule cannot be used . . . as a substitute for a second appeal.’ We have consistently ruled that provision to mean that where an issue is raised and decided on direct appeal, defendant cannot obtain another review thereof in a 27.26 proceeding.” Sweazea v. State, 515 S.W.2d 499, 501 (Mo.banc 1974). ‘“If issues, apparently finally decided, may be reopened and reviewed simply because a litigant has an additional citation to offer or a different theory to suggest there would never be an end to litigation. . . . ’ ” Sweazea v. State, supra, 515 S.W.2d at 501, quoting from Gailes v. State, 454 S.W.2d 561, 564 (Mo.1970); see also Caffey v. State, 467 S.W.2d 857, 859 (Mo.1971).

The claim of illegal search and seizure was raised on direct appeal and decided adversely to the movant. State v. McCrary, supra. Therefore, since (1) the validity of the search is not cognizable on a 27.26 motion and (2) the same claim of an illegal search and seizure was raised and disposed of on the direct appeal, this contention must be ruled against appellant.

IY

As to appellant’s claim that he was not afforded the Miranda rights prior to making the inculpatory statement, “okay, it’s heroin,” we hold that, under the circumstances of this case, there was a deliberate bypass of an orderly state procedure so that this issue is foreclosed on this 27.26 motion.

Whether a particular point raised in a post conviction 27.26 motion may be entertained despite the fact that the precise issue might have been raised on a direct appeal has not been fully articulated in this state. Prior to the adoption of present Rule 27.26, in 1967, it was often repeated that the motion to vacate and set aside a judgment and sentence may not be used in lieu of an appeal to review errors committed in the course of a trial even though such errors relate to constitutional rights. State v. Thompson, 324 S.W.2d 133, 135-136 (Mo. banc 1959); State v. Hooper, 399 S.W.2d 115, 117 (Mo.1966); State v. Wiggins, 360 S.W.2d 716, 718 (Mo.1962) (emphasis added).

Present Rule 27.26(b)(3) now provides that “mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.” State v. Brownridge, 506 S.W.2d 466, 468 (Mo.App.1974).

It is clear that a 27.26 motion cannot be used as a substitute for a direct or second appeal and that mere trial errors or a challenge to the sufficiency of the evidence cannot be raised on a 27.26 motion. Coney v. State, 491 S.W.2d 501, 506 (Mo.1973); O’Neal v. State, 486 S.W.2d 206, 208 (Mo.1972).

And it is now settled by numerous decisions in both the federal and state systems that where there is a deliberate bypass, whether for strategic, tactical or other reasons, of orderly state procedure, a mov-ant is precluded from raising a constitutional issue on a post conviction motion. The rule has had a long history in the federal system.

The principles applicable to habeas are also applicable to the federal post conviction procedure under 28 U.S.C.A., § 2255. In Kaufman v. United States, supra, the Supreme Court in holding that a federal prisoner may raise a claim of unlawful search and seizure on a federal post conviction motion, nevertheless recognized that “[t]he § 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly procedures provided at or before trial and by way of appeal . . . .” 394 U.S. at 227, fn. 8, 89 S.Ct. at 1075.

Innumerable federal decisions have held that a § 2255 court may deny relief where there is found, and sometimes presumed, to be a deliberate bypass. Grieco v. United States, 435 F.2d 677 (7th Cir. 1970) — mov-ant did not question the voluntariness of statements or move to suppress where federal agents did not advise of rights; Torriente v. United States, 379 F.Supp. 70, 72 (S.D.N.Y.1974) — Miranda; United States v. Haywood, 150 U.S.App.D.C. 247, 464 F.2d 756, 761 (1972); Pope v. Swenson, 395 F.2d 321, 324 (8th Cir. 1968); Curry v. Wilson, 405 F.2d 110, 112-113 (9th Cir. 1968) — failure to object to statements; Mathis v. Colorado, 425 F.2d 1165, 1166 (10th Cir. 1970); see cases collected in 10 A.L.R.Fed. 724 (1972); and in Note, supra, 31 La.L.Rev. 601; White, supra, 58 Va.L.Rev. 67.

In the various states, the courts have held under their particular post conviction statutes or rules that an issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post conviction motion, except where fundamental fairness requires otherwise and only in rare and exceptional circumstances. It is the trend in the state courts to reject an issue in a post conviction motion where such issue could have but was not raised on direct appeal.

In Fields v. State, supra, 468 S.W.2d 31, our Supreme Court refused to consider a claim of unlawful search and seizure which had not been properly preserved for appeal. In Fields, no motion to suppress had been filed, no objection was made at trial, no mention of the claim was made in the motion for new trial, and the illegal search and seizure claim was rejected on direct appeal. State v. Fields, 442 S.W.2d 30 (Mo.1969). In this posture, the Supreme Court held that the matter was not cognizable in the 27.26 motion. Fields, supra, 468 S.W.2d at 32.

Thereafter, in Vidauri v. State, 515 S.W.2d 562 (Mo.1974), the Supreme Court upheld the trial court’s ruling that the 27.26 movant’s confession was involuntary, even though the state contended that the mov-ant’s failure to preserve the claim operated as a bypass. The Vidauri court distinguished Fields by noting that Vidauri had twice objected on constitutional grounds to the alleged involuntary confession outside the presence of the jury and when the confession was offered before the jury. Fields, said the court, did not establish a “blanket” rule that any and all constitutional objections are forfeited by failure to preserve them in the motion for new trial, but recognized that there could be a deliberate bypass of procedural remedies sufficient to bar consideration of a claim on a 27.26 motion.

The court in Vidauri recognized Fields as an example of “deliberate bypass of a procedural rule by the defendant.” The court in Vidauri also distinguished Nickens v. State, 506 S.W.2d 381 (Mo.1974). In Nick-ens, the court held that the movant’s alleged trial errors affecting constitutional rights [defective indictment, coerced confession] were not cognizable where he had specifically waived his right to an appeal and where the waiver was clearly made and voluntary.

The case at bar is a situation more akin to Fields than Vidauri. Fields recognizes that there may be a deliberate bypass of orderly state procedures where there is a total failure to raise a constitutional claim and that such an absence of claiming a constitutional issue precludes the raising of the issue on a 27.26 motion. In the case at bar, movant made no pretrial, trial or post trial objection to the inculpatory statement. He made no effort on the 27.26 motion or on this appeal to explain a failure to object to the admission of the statement or to refute the contention that he should have raised the claim on direct appeal. On cross-examination at the trial, retained and experienced defense counsel examined Officer Howell concerning the statement and the circumstances surrounding the arrest. After the state elicited the movant’s statement on the direct examination of Officer Howell, counsel referred to the statement and the circumstances in an apparent attempt to characterize the search and seizure as unlawful. The circumstances surrounding the statement were an integral part of the search and seizure.

Under all these circumstances, we believe that there was a bypass of orderly state procedure and that the movant is precluded from raising the Miranda issue on his 27.26 motion. Here the record suggests that the failure to raise the issue was for reasons which can fairly be described as a deliberate bypassing of orderly state procedures so that the issue is not cognizable on 27.26. In view of the circumstances we do not believe that this holding amounts to “the perpetration of injustices of grave constitutional importance” which is one of the purposes of Rule 27.26. Vidauri v. State, supra, 515 S.W.2d at 570.

We conclude, as did the trial court, that this issue should have been raised on direct appeal.

V

Notwithstanding the fact that the Miranda issue should have been raised on direct appeal and the failure to raise the issue at all stages of the proceeding constituted a deliberate bypass of orderly state procedure, the denial of the motion to vacate by the trial court was proper, since we believe that Miranda is not applicable to these facts.

In Miranda v. Arizona, supra, it was held that the “prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444, 86 S.Ct. at 1612.

The whole thrust of Miranda, however, dealt with the subtle forms of psychological pressure which may be brought to bear upon an accused when he is interrogated. After an investigation focuses on an accused, Miranda announced technical standards governing the admission of in-custody statements and held that such statements were inadmissible when warnings were not given.

But Miranda safeguards were not intended to create a constitutional straightjacket, and volunteered or general on-the-scene questioning was not prohibited by the holding. State v. O’Neal, 436 S.W.2d 241 (Mo.1968); O’Neal v. Swenson, 301 F.Supp. 1105 (W.D.Mo.1969).

There are a number of situations to which Miranda is inapplicable: (1) There is no requirement that Miranda warnings be given to individuals who are arrested for motor vehicle offenses, State v. Neal, 476 S.W.2d 547, 553 (Mo.1972); State v. Durio, 512 S.W.2d 833, 835 (Mo.App.1974); annot. 25, A.L.R.3d 1076 (1969); (2) where circumstances require, an officer may, when dealing with automobile situations, interrogate without giving Miranda warnings, State v. Bradford, 434 S.W.2d 497, 501 (Mo.1968); State v. Hale, 463 S.W.2d 869, 871 (Mo.1971); and (3) in situations substantially similar to the case at bar, it has been held that no warnings need be given. People v. Hubbard, 9 Cal.App.3d 827, 88 Cal.Rptr. 411 (1970).

In People v. Hubbard, supra, two police officers saw a vehicle driven by defendant fail to stop for a traffic light. After being stopped, the defendant removed himself from the vehicle and the officer “patted him down.” After seeing a plastic bag protruding from defendant’s pocket, the officer asked if “he had any pills.” Defendant responded, “They’re reds. They belong to my mother.” Defendant was then arrested. On appeal, defendant contended that the statement was inadmissible since no Miranda rights were given, but the California court held that the case arose in a setting not at all comparable to Miranda. “Here we have two police officers . confronting . . . strangers . The simple question which [the] Officer asked defendant presented none of the ‘compelling atmosphere’ with which the Miranda opinion is concerned.” People v. Hubbard, supra, 88 Cal.Rptr. at 417-418.

This, we believe to be persuasive. In the case at bar the defendant was stopped for a traffic offense; the officer had only the intent to give defendant a traffic ticket for such violation; he was stopped for an altogether different reason than that for which he was subsequently charged and tried; it was only after movant reached into his rear pocket that Officer Howell took further action, searched, found the condoms and asked the question. The defendant was restrained not because the officer believed he possessed heroin but because he made a move toward his rear pocket. At this time the investigation for possession of heroin had not focused on the movant. And the totality of the circumstances did not present a compelling police atmosphere with which Miranda was concerned.

Neither" do we believe that the question by Officer Howell was the result of “custodial interrogation.” Although handcuffed, the handcuffing was for a reason unrelated to his arrest for illegal possession of narcotics. In State v. Williams, 522 S.W.2d 641 (Mo.App.1975), we discussed the issue of “custodial interrogation.” We held that “no hard and fast rule can be established as to when custodial interrogation begins, but it must be determined from the surrounding circumstances, some of which include probable cause to arrest, the subjective intent of the police officer, and who if anyone was the focus of the investigation at the time of the interrogation.” State v. Williams, supra, 522 S.W.2d at 644. See also State v. Bradford, supra, and annot., What Constitutes Custodial Interrogation, 31 A.L. R.3d 565 (1970).

Under all the facts, we conclude that Miranda is inapplicable and warnings were not, under these circumstances, required to be given.

VI

Lastly, we believe that the admission of the statement by the defendant at the scene could not in any sense be prejudicial. The criminalist (chemist), Miss Ruem-mler, testified at the trial that the substance found by Officer Howell on the mov-ant’s person was heroin. Even if, as claimed by movant, the admission of the statement was error, it was nevertheless harmless and nonprejudicial. State v. Gibson, 502 S.W.2d 310, 314 (Mo.1973). The substance found on his person was identified as illegal.

The Supreme Court of the United States has recently made clear that Miranda did not establish substantive constitutional rights, but expounded a series of prophylactic rules designed to protect a citizen’s Fifth Amendment right to be free from compulsory self-incrimination. Null v. Wainwright, 508 F.2d 340, 342 (5th Cir. 1975), citing Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). The failure to give such warnings may constitute harmless error. Null v. Wainwright, supra.

Under the circumstances, failure to give the warnings would not entitle movant to vacation of his sentence.

VII

We have read the entire transcripts, the briefs and the authorities relied upon and conclude that the trial court did not err in sustaining the state’s motion to dismiss and denying the movant’s motion to vacate sentence.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur,

APPENDIX*

I

The following is a listing of judicial decisions in Missouri dealing with the 27.26 motion. It is not exhaustive but is intended to shew the scope and limitations of a Rule 27.26 motion.

For general discussions and further reference, see Anderson,

Five Years Under Amended Rule 27.26, 38 Mo.L.Rev. 1 (1973); Pelofsky and Purdon, A Study in Post-Conviction Remedies, 39 U.M.K.C. L.Rev. 1 (1970); 9B Mo. Digest, Criminal Law, Key 998(2) et seq. and decisions following Rule 27.26, V.A..M.R.

II

MATTERS NOT COGNIZABLE IN A 27.26 MOTION TO VACATE SENTENCE

A.In General

1. Matters which could have been or were raised on a prior motion.

Duncan v. State, 524 S.W.2d 140, 143 (Mo.App.1975)

Harkins v. State, 521 S.W.2d 9, 10 (Mo.App.1975)

Newman v. State, 481 S.W.2d 3, 5 (Mo.1972)

2. Matters which have already been decided on direct appeal.

Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975)

Weaver v. State, 520 S.W.2d 640, 643 (Mo.App.1975)

Sweazen v. State, 515 S.W.2d 499, 501 (Mo.1974)

Gailes v. State, 454 S.W.2d 561, 563 (Mo.1970)

3. Matters not raised as grounds for relief at 27.26 evidentiary hearing and raised on appeal.

Steward v. State, 499 S.W.2d 830, 832 (Mo.App.1973)

4.Matters waived by movant's voluntary waiver of right to appeal.

Nickens v. State, 506 S.W.2d 381, 386 (Mo.1974)

5.Overruling motion is final judgment.

Ivy v. State, 509 S.W.2d 148, 152 (Mo.App.1974)

6.Must allege facts.

Shields v. State, 491 S.W.2d 6, 8 (Mo.App.1973)

B.Illegal Arrest

Jackson v. State, 512 S.W.2d 249, 252 (Mo.App.1974)

Collins v. State, 454 S.W.2d 917, 919 (Mo.1970)

C.Unlawful Search and Seizure

Lewis v. State, 513 S.W.2d 772, 774 (Mo.App.1974)

Beach v. State, 488 S.W.2d 652, 655 (Mo.1972)

Smith v. State, 473 S.W.2d 719, 720 (Mo.1971)

Brodkowicz v. State, 474 S.W.2d 822, 827 (Mo.1972)

Mahurin v. State, 477 S.W.2d 33, 35 (Mo.1972)

*Caveat: These cases do not indicate whether federal relief was later sought or what disposition was made.

D. Newly Discovered Evidence

Thomas v. State, 512 S.W.2d 116, 123 (Mo.banc 1974)

Agee v. State, 512 S.W.2d 401, 403 (Mo.App.1974)

State v. Stegall, 485 S.W.2d 414, 416 (Mo.1972)

But see Duncan v. State, 520 S.W.2d 123, 125 (Mo.App.1975)

E. Constitutional Rights Antedating a Voluntary Plea of Guilty

1. Improper identification on lineup when denied right to counsel.

Johnson v. State, 472 S.W.2d 433, 434 (Mo.1971) — without evidentiary hearing

2. Lack of speedy trial.

Rew v. State, 472 S.W.2d 611, 613 (Mo.1971)

3. Inadmissible confession not affecting voluntariness of plea.

Coney v. State, 491 S.W.2d 501, 513 (Mo.1973)

Roberts v. State, 476 S.W.2d 490, 494 (Mo.1972) — detention beyond 20 hours

Brodkowicz v. State, 474 S.W.2d 322, 827 (Mo.1972)

Miller v. State, 473 S.W.2d 413, 418 (Mo.1971)

Floyd v. State, 518 S.W.2d 700, 703 (Mo.App.1975)

Jefferson v. State, 442 S.W.2d 6, 10 (Mo.1969)

Ineffective assistance of counsel not affecting voluntariness plea. o •&> Hi •

Floyd v. State, 518 S.W.2d 700, 703 (Mo.App.1975)

Brown v. State, 495 S.W.2d 690, 694 (Mo.App.1973)

Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971)

Duncan v. Stare, 524 S.W.2d 140, 143 (Mo.App.1975)— ineffective assistance on first 27.26 filed not cognizable

Harkins v. State, 521 S.W.2d 9, 11 (Mo.App.1975)

5. Failure of police to give Miranda warnings.

Clemmons v. State, 520 S.W.2d 623, 624 (Mo.App.1975)

Meller v. State, 438 S.W.2d 187, 193 (Mo.1969) — no statement used against him

6. Dissatisfaction with conditions of penal servitude while awaiting trial.

Beach v. State, 488 S.W.2d 652, 655 (Mo.1972)

Jackson v. State, 476 S.W.2d 598, 599 (Mo.1972)

Ivy v. State, 509 S.W.2d 148, 153 (Mo.App.1974)

7. Irregularities at preliminary hearing.

Huffman v. State, 451 S.W.2d 21, 26 (Mo.1970)

Stanfield v. State, 442 S.W.2d 521, 525 (Mo.1969)

8. Illegal evidence, confession, insanity and entrapment.

State v. Brown, 449 S.W.2d 664, 666 (Mo.1970)

9. Defective information.

Miller v. State, 473 S.W.2d 413, 418 (Mo.1971)

F. Trial Errors

1.Failure to instruct on lesser included offense did not show deprivation of constitutional right.

Brown v. State, 490 S.W.2d 657, 659 (Mo.App.1973)

Improper argument. 2.

Booth v. State, 491 S.W.2d 286, 288 (Mo.1973)

3. Question propounded by prosecutor assorted as violation of due process is not sufficient to elevate status of trial error to constitutional standard.

Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975)

4. Errors in admission of evidehce.

a. prior crimes

Booth v. State, 491 S.W.2d 285, 288 (Mo.1973)

b. inadmissible testimony — alleging deprivation of constitutional right.

Jones v. State, 504 S.W.2d 231, 232 (Mo.App.1973)

Thomas v. State, 485 S.W.2d 413, 413 (Mo.1972)

State v. Warren, 406 S.W.2d 605, 607 (Mo.1966)

5. Defendant's appearance before jury in rumpled, dirty work clothes.

Wilwording v. State, 438 S.W.2d 447, 450 (Mo.1969)

6. Confession taken from juvenile by police before he was taken to juvenile court.

Coney v. State, 491 S.W.2d 501, 506 (Mo.1973)

7. Cross-examination by prosecutor.

Agee v. State, 512 S.W.2d 401, 403 (Mo.App.1974)

8. Deprivation of peremptory challenges to venireman panel.

Wilwording v. State, 438 S.W.2d 447, 449 (Mo.1969)

9. Errors relative to instructions.

Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974)

Jewell v. State, 515 S.W.2d 806, 807 (Mo.App.1974)

Thomas v. State, 485 S.W.2d 413, 413 (Mo.1972)

State v. Smith, 411 S.W.2d 208, 210 (Mo.1967)

Sherrill v. State, 515 S.W.2d 611, 612 (Mo.App.1974)

10. "Biased" juror.

Selman v. State, 454 S.W.2d 530, 532 (Mo.1970)

11. Conclusionary allegations that trial errors affected constitutional rights.

Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975)

Richards v. State, 495 S.W.2d 442, 443 (Mo.1973)

O'Neal v. State, 486 S.W.2d 206, 208 (Mo.1972)

Agee v. State, 512 S.W.2d 401, 402 (Mo.App.1974)

Booth v. State, 491 S.W.2d 286, 288 (Mo.1973)

G. Excessive c.r Cruel or Harsh or Unusual Sentence (where within statutory range)

Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975)— sentence more severe than others

Shields v. State, 491 S.W.2d 6, 9-10 (Mo.App.1973)

Meller v. State, 435 S.W.2d 637, 640 (Mo.1968)

Bracy v. State, 456 S.W.2d 302, 306 (Mo.1970)

Griggs v. State, 479 S.W.2d 478, 481 (Mo.1972)

Garrett v. State, 486 S.W.2d 272, 274 (Mo.1972)

See also Johnson v. State, 442 S.W.2d 41, 46-47 (Mo.1969)— an excessive sentence may be corrected and is not grounds for vacating sentence

1. Sentence greater than co-defendant's (absent showing that court was engaged in arbitrary or discriminatory conduct).

Bradley v. State, 494 S.W.2d 45, 49 (Mo.1973)

Shields v. State, 491 S.W.2d 6, 9-10 (Mo.App.1973)

Phillips v. State, 486 S.W.2Ó 237, 239 (Mo.1972)

2. Power of trial court to determine whether sentences are concurrent or consecutive.

Mullin v. State, 473 S.W.2d 429, 430 (Mo.1971)

3. Discretion in prosecutor to charge under Second Offender Act.

Wilwording v. State, 438 S.W.2d 447, 449 (Mo.1969)

4. Greater sentence on retrial by second jury.

Spidle V. State, 446 S.W.2d 793, 795 (Mo.1969)

H. Matters Affecting Parole Revocation (denial of due process — proper remedy is habeas corpus)

Green v. State, 494 S.W.2d 356, 357 (Mo.banc 1973)

Jones v. State, 471 S.W.2d 166, 168 (Mo.banc 1971)

Smith v. State, 517 S.W.2d 148, 150 (Mo.1974)

I. Perjury

1. At 27.26 hearing.

Sallee v. State, 460 S.W.2d 554, 559 (Mo.1970)

See Duncan v. State, 520 S.W.2d 123 (Mo.App.1975)

2. Absent showing prosecutor was aware testimony was false at time of trial.

State v. Statler, 383 S.W.2d 534, 537 (Mo.1964)

Coles v. State, 495 S.W.2d 685, 687 (Mo.App.1973)

J. Issues of Credibility

1. Involving an involuntary confession.

Jones v. State, 445 S.W.2d 311, 313-314 (Mo.1969)

2. Involving voluntariness of plea of guilty.

Daniels v. State, 454 S.W.2d 17, 20 (Mo.1970)

Peterson v. State, 444 S.W.2d 673, 676 (Mo.1969)

3. Involving witness' testimony.

Bledsoe v. State, 456 S.W.2d 4, 6 (Mo.1970)

Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974)

Quinn v. State, 515 S.W.2d 603, 607 (Mo.App.1974)

Byrd v. State, 520 S.W.2d 611, 614 (Mo.App.1975)

Floyd v. State, 518 S.W.2d 700, 702-703 (Mo.App.1975)

K. Absence of Counsel

1. At arraignment (where counsel is appointed or obtained after defendant's plea of not guilty).

Horn v. State, 498 S.W.2d 771, 774 (Mo.1973)

McClain v. State, 448 S.W.2d 599, 601 (Mo.1970)

2. At sentencing (absent prejudice to accused).

Jones v. State, 494 S.W.2d 659, 661 (Mo.App.1973)

3. At pretrial photographic display.

Steward v. State, 499 S.W.2d 830, 833 (Mo.App.1973)

4. May waive at preliminary hearing absent prejudice to accused.

Hendrix v. State, 495 S.W.2d 457, 459-460 (Mo.App.1973)

Horn v. State, 498 S.W.2d 771, 774 (Mo.1973)

Geren v. State, 473 S.W.2d 704, 707 (Mo.1971)

Knight v. State, 491 S.W.2d 282, 285 (Mo.1973)

Fleck v. State, 443 S.W.2d 100, 101 (Mo.1969)

L. Speedy Trial

1. Absent demand to try case by defendant or his counsel.

State v. Horn, 498 S.W.2d 771, 774 (Mo.1973)

2. Because defendant lived in a rural area with fewer terms of court than urban areas.

Morton v. State, 468 S.W.2d 638, 639-640 (Mo.1971)

3. Delay of 27.26 hearing.

Clark v. State, 497 S.W.2d 170, 174-175 (Mo.1973)

Simpson v. State, 487 S.W.2d 512, 514 (Mo.1972)

M. Conduct by the Court

1. Failure to conduct presentence investigation.

Hamilton v. State, 490 S.W.2d 363, 365 (Mo.App.1973)

2. Failure to hold or defect in preliminary hearing, absent objection by defendant: before trial.

Shields v. State, 491 S.W.2d 6, 10 (Mo.App.1973)

3. No constitutional right to accept guilty plea.

Steward v. State, 499 S.W.2d 830, 832 (Mo.App.1973)

4. Consideration of improper prior convictions in sentencing where one of prior convictions is valid.

Jackson v. State, 476 S.W.2d 598, 599-600 (Mo.1972)

5. Comments of judge curing trial as deprivation of right to fair trial, absent support from record.

Meller v. State, 435 S.W.2d 637, 640 (Mo.1968)

6. Failure to grant continuance.

Woody v. State, 445 S.W.2d 288, 292 (Mo.1969)

O. Phvsical Restraint of Defendant at Hearing on 27.26 Motion

Russell v. State, 494 S.W.2d 30, 38 (Mo.1973)

P. Misleading Statements of Prosecutor Regarding Prior Convictions at Tirr.e of Sentencing

Phillips v. State, 486 S.W.2d 237, 238-239 (Mo.1972)

Q. Withdrawal of Voluntary Plea of Guilty, Absent Showing of Manifest Injustice

Beavers v. State, 520 S.W.2d 675, 680 (Mo.App.1975)

Winford v. State, 485 S.W.2d 43, 49 (Mo.banc 1972) -- failure of transcript to show full compliance with Rule 25.04

Babcock v. State, 435 S.W.2d 85, 39 (Mo.1972)

Drew v. State, 436 S.W.2d 727, 729 (Mo.1969)

1. Longer sentence received than anticipated.

Abrams v. State, 521 S.W.2d 177, 180 (Mo.App.1975)

Babcock v. State, 485 S.W.2d 85, 90 (Mo.1972)

2. Incorrect opinion of attorney that court will accept recommendation.

State v. Bonds, 521 S.W.2d 18, 21 (Mo.App.1975)

3.Failure of court to explain each technical element of the offense.

Abrams v. State, 521 S.W.2d 177, 179 (Mo.App.1975)

State v. Conner, 500 S.W.2d 300, 302 (Mo.App.1973)

Jones v. State, 471 S.W.2d 223, 228 (Mo.1971) [range of punishment]

R. Miscellaneous Matters

1. Verdict not in compliance with the court's instructions or the law of Missouri in failing to -follow form of indictment.

State v. Stegall, 485 S.W.2d 414, 416 (Mo.1972)

2. Challenge to sufficiency of medical examination to determine competency to stand trial or to assist in preparation of defense.

Campbell v. State, 515 S.W.2d 453, 455 (Mo.1974)

Bledsoe v. State, 456 S.W.2d 4, 6 (Mo.1970) [trial error]

3. Failure of counsel to brief ar.d argue original appeal.

Gerberding v. State, 433 S.W.2d 820, 324 (Mo.1968)

4. Ineffective assistance of counsel.

See Thomas v. State, 516 S.W.2d 761 (Mo.App.1974)— excellent summary

5. Inculpatory or exculpatory statement of defendant where no evidence presented in support of allegation pertaining to use of statement.

Webb v. State, 447 S.W.2d 513, 514 (Mo.1969)

Nolan v. State, 446 S.W.2d 754, 755 (Mo.1969) [not used by state]

6. State's use of peremptory challenges to strike all black jurors, absent showing of systematic practice.

Brown v. State, 470 S.W.2d 543, 544 (Mo.1971)

7. Validity of extradition proceedings.

Watson v. State, 475 S.W.2d 8, 12 (Mo.1972)

State v. Estes, 406 S.W.2d 560, 562 (Mo.1966)

8. Ineffective assistance of counsel at 27.26 hearing.

Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975)

Harkins v. State, 521 S.W.2d 9, 11 (Mo.App.1975)

Williams v. State, 507 S.W.2d 664, 666 (Mo.App.1974)

McCormick v. State, 502 S.W.2d 324, 326 (Mo.1973)

9. Failure of state to endorse witness on information.

State v. Reeble, 399 S.W.2d 118, 121 (Mo.1966)

10. Plea proceeding voluntarily made.

Foster v. State, 520 S.W.2d 684, 686 (Mo.App.1975)

11. Knowing suppression of favorable evidence absent showing that prosecutor was aware of evidence at time of trial.

Mason v. State, 468 S.W.2d 617, 622 (Mo.1971)

in

27.26 DECISIONS IN WHICH GROUNDS FOR RELIEF WERE FOUND MERITORIOUS

A. Guilty Plea, Involuntary/ Failure to Inform/ etc»

1. Leave to withdraw plea granted.

Williams v. State, 473 S.W.2d 97 (Mo.1971)

Doepke v. State, 465 S.W.2d 507 (Mo.1971)

Burrell v. State, 461 S.W.2d 738 (Mo.1971) [understanding]

State v. Reese, 457 S.W.2d 713 (Mo.1970)

State v. Arnold, 419 S.W.2d 59 (Mo.1967)

State v. Edmonson, 438 S.W.2d 237 (Mo.1969)

a. Absence of counsel at time of plea alleged to be involuntary.

Morris v. State, 456 S.W.2d 289 (Mo.1970) [leave to withdraw plea granted]

b. Ineffective assistance of counsel affecting voluntariness of plea.

Pedicord v. Swenson, 304 F.Supp. 393 (W.D.Mo.1969) [leave to withdraw plea granted — habeas corpus]

Miller v. State, 498 S.W.2d 79 (Mo.App.1973) [hearing ordered on issue of defendant's competency or in alternative leave to withdraw plea]

Hall v. State, 496 S.W.2d 300 (Mo.App.1973) [leave to withdraw plea granted]

2. Remand for evidentiary hearing on voluntariness.

State v. Rose, 440 S.W.2d 441 (Mo.1969) — assured of probation

State v. Sayre, 420 S.W.2d 303 (Mo.1967)

B. Ineffective Assistance of Counsel

1. Holbert v. State, 439 S.W.2d 507 (Mo.1969) [remand for hearing]

State v. Keeble, 427 S.W.2d 404 (Mo.1968) [remand for hearing]

2. Thomas v. State, 516 S.W.2d 761 (Mo.App.1974) [remand for

hearing) (excellent summary)

C. Denial of Right to or Assistance of Counsel at Critical Stage

1. At time of motion for new trial.

Nicholson v. State, 524 S.W.2d 106 (Mo.1975) [motion for new trial permitted to be filed]

Ball v. State, 479 S.W.2d 486 (Mo.1972) [new motion with assistance of counsel permitted to be filed]

2. At trial.

Fields v. State, 507 S.W.2d 39 (Mo.App.1974) [new trial granted]

3. At prior conviction.

Garrett v. State, 459 S.W.2d 378 (Mo.1970) [remand for evidentiary hearing]

D. Involuntary Waiver of Trial by Jury

Barrage v. State, 477 S.W.2d 118 (Mo.1972) [remand for evidentiary hearing]

E. Denial of Right of Confrontation of Witnesses

Kern v. State, 507 S.W.2d 8 (Mo.banc 1974) [new trial granted]

F. Incompetencv to Stand Trial

Brizendine v. Swenson, 302 F.Supp. 1011 (W.D.Mo.1969) [evidentiary hearing granted]

Carpenter v. State, 449 S.W.2d 584 (Mo.1970) [remand for evidentiary hearing]

G. Involuntary Confession

Alewine v. Missouri, 352 F.Supp. 1190 (W.D.Mo.1972) [federal habeas dismissed because Missouri rule was available to afford hearing on issue of voluntariness]

Vidauri v. State, 515 S.W.2d 562 (Mo.1974) [new’ trial granted]

H. Conviction Based on Alleged Knowing Use of Perjured Testimony

Harris v. State, 443 S.W.2d 191 (Mo.1969) [remand for evidentiary hearing]

State v. Keeble, 427 S.W.2d 404 (Mo.1968) [remand for evidentiary hearing]

I. Double Jeopardy

Spidle v. Swenson, 313 F.Supp. 203 (W.D.Mo.1970) [habeas— new trial granted on lesser included offense]

Durham v. State, 473 S.W.2d 397 (Mo.1971) [remand for findings of fact and conclusions]

J. Insufficiency of Charge Against Defendant

1. Denial of right to be informed of nature and cause of accusation

Taggert v. Swenson, 313 F.Supp. 146 (W.D.Mo.1970) [federal writ dismissed pending state ruling on 27.26 notion]

2. Defective indictment — failure to allege essential element.

Bullington v. State, 459 S.W.2d 334 (Mo.1970) [new trial granted — kidnapping]

3. Defective information.

Montgomery v. State, 454 S.W.2d 571 (Mo.1970) [felony murder-robbery]

State v. Nolan, 418 S.W.2d 51 (Mo.1967) [new trial granted]

State v. Garner, 432 S.W.2d 259 (Mo.1968) [judgment set aside and remanded]

K. Unconstitutional Identification

Arnold v. State, 484 S.W.2d 248 (Mo.1972) [remand for evi-dentiary hearing]

M. Prior Convictions

1. Finding of prior convictions not in compliance with statute.

State v. Dixon, 434 S.W.2d 564 (Mo.1968) [remand for evi-dentiary hearing]

2. Evidence received by jury of alleged void prior cor.victipn.

Gerberding v. State, 433 S.W.2d 820 (Mo.1968) [remand for evidentiary hearing!

N. Miscellaneous

1. Involuntary abandonment of right to appeal.

Noble v. State, 477 S.W.2d 417 (Mo.1972) [remand for evi-dentiary hearing]

State v. Frey 441 S.W.2d 11 (Mo.1969) [reser.tence and time for appeal to run from resentence]

2. Insufficient findings of fact and conclusions of law.

Thomas v. State, 465 S.W.2d 513 (Mo.1971)

3. Transcript of prior 27.26 hearing used to avoid new evidentiary

hearing.

State v. Brown, 436 S.W.2d 724 (Mo.1969) [remand for evi-dentiary hearing]

      . The offense occurred prior to the adoption of the controlled substances act in 1971. §§ 195.010-195.320, RSMo Supp. 1971.

      . He also makes a third point — general in nature — that the sentence should be vacated because the court did not take cognizance of his constitutional rights. This is vague. See State v. Price, 422 S.W.2d 286 (Mo. 1967). It may be implied from this point that he is contending that he should have been given a full evidentiary hearing. But none was required. See Lewis v. State, 513 S.W.2d 772, 775 (Mo.App.1974).

      .In Fields, supra, appellant contended that Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), permits the raising of an illegal search and seizure on a post conviction motion. But Missouri holds that Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), controls. In the Henry case, it was held that a litigant’s procedural defaults in state proceedings do not prevent vindication of federal rights unless the procedural rule serves a legitimate state interest. Fields, therefore held that a state interest was served and precluded movant from raising the search and seizure claim on 27.26.

      . This provision was not in the earlier rule. It is to be noted that the Rule is framed in terms that “constitutional rights” “may" be raised even though the error could have been raised on appeal. The trend in many states is to hold that any matter which could have been raised on appeal cannot be raised on a post conviction motion, except in rare and exceptional instances. See fn. 7.

      . See Houser v. United States, 508 F.2d 509 (8th Cir. 1974), for a listing of matters that may and may not be raised on a § 2255 post conviction motion, and appendix following this opinion for matters which may and may not be raised under Rule 27.26.

      . In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court, reviewing a petition for habeas corpus from a state prisoner who alleged his murder conviction was based on an unconstitutionally obtained confession, held that the federal court had power to grant relief despite the failure to seek appellate review in the state system. However, the Court stated that a federal court had discretion to deny relief to an appellant who had “deliberately by-passed the orderly procedure of the state courts.” 372 U.S. at 438, 83 S.Ct. at 849. The Court equated the term “deliberate by-pass” with the Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), concept of waiver: “An intentional relinquishment or abandonment of a known right or privilege.” 372 U.S. at 439, 83 S.Ct. at 849. Later in Henry v. State of Mississippi, supra, the Court held, however, that “a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State’s insistence on compliance with its procedural rule serves a legitimate state interest.” 379 U.S. 443, 447-448, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965). The Court further clarified the Noia concept of waiver by stating that, even if an attorney did not consult with the client, the attorney’s decision, if based on trial strategy, would generally bind the petitioner except where the circumstances are exceptional. “[T]he deliberate bypassing by counsel of the contemporaneous objection rule as a part of trial strategy would have that effect in this case.” 379 U.S. at 451-452, 85 S.Ct. at 569.
      For complete discussions of the problem, see: Note, Federal Habeas Corpus and the Doctrine of Waiver Through Deliberate Bypass of State Procedures, 31 La.L.Rev. 601 (1971); White, Federal Habeas Corpus: The Impact of the Failure to Assert a Constitutional Claim at Trial, 58 Va.L.Rev. 67 (1972); State Post Conviction Remedies and Federal Habeas Corpus: A Study for the Federal Judicial Center, 12 Wm. and Mary L.Rev. 149 (1970); and Lay, Problems of Federal Habeas Corpus Involving State Prisoners, 45 F.R.D. 45 (1969). The article in 12 Wm. and Mary L.Rev. contains a table relating to post conviction provisions at 228-233.

      . Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Holiday v. State, 512 S.W.2d 953, 957 (Tenn.Cr.App.1972); Neighbors v. People, 171 Colo. 349, 467 P.2d 804, 808 (banc 1970); Gross v. State, 320 N.E.2d 817, 820 (Ind.App.1974); People v. Robinson, 25 Ill.App.3d 52, 322 N.E.2d 505, 508 (1975); State v. Martinez, 85 N.M. 293, 511 P.2d 779 (App.1973); Johnson v. Warden, Nevada State Prison, 515 P.2d 63, 64 (Nev.1973) — particularly strong holding; Walker v. State, 216 Kan. 1, 530 P.2d 1235, 1237 (1975); Tyson v. State, 298 Minn. 559, 214 N.W.2d 461 (1974); State v. Kuecey, 60 Wis.2d 677, 211 N.W.2d 453, 455 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973); State v. Hughes, 128 N.J.Super. 363, 320 A.2d 182, 184 (1974); Duguay v. State, 309 A.2d 234 (Me.1973); Morrison v. State, 283 So.2d 137 (Fla.App.1973). See A.B.A. Standards Relating to Post Conviction Remedies, § 6.1, pp. 85-90 (1967).

      . Where defense counsel took appropriate steps and actions to exclude allegedly involuntary incriminating statements, the Supreme Court in Lewis v. State, 501 S.W.2d 20 (Mo.1973), held that the admission of the statement was at most a trial error which could be considered only on direct appeal and not under Rule 27.26. The court relied on State v. Thompson, supra, 324 S.W.2d at 135-136; State v. Hooper, and State v. Wiggins, both supra. See also State v. Gray, 432 S.W.2d 593 (Mo.1968).

      . The broad principles of Miranda have been limited by Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1970), and Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

      . See also State v. Twitty, 18 Ohio App.2d 15, 246 N.E.2d 556 (1969); State v. Gray, 3 Wash.App. 146, 473 P.2d 189 (1970); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968).


source: Caselaw Access Project

author: WASSERSTROM, Presiding Judge.

license: Public Domain

text:
    Don R. COWAN, Appellant, v. SOUTHWESTERN BELL TELEPHONE CO., Respondent.
    No. KCD 27616.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 3, 1975.
    Application to Transfer Denied Dec. 8, 1975.
    Duncan & Russell, Robert G. Duncan, Edward A. Coulson, Gladstone, for appellant.

      Robert M. Kroenert, Morrison, Hecker, Curtis, Kuder & Parrish, James E. Taylor, Fernando J. Gaitan, Jr., Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Claimant Cowan suffered an injury on March 16,1966, in the course of his employment with Southwestern Bell Telephone Company which is a self-insurer under the Workmen’s Compensation Act. On Cow-an’s claim for compensation, the referee found, pursuant to a stipulation of the parties, that Cowan had suffered a permanent partial disability equal to 11⅝% of the body as a whole and under Section 287.190 (applying the maximum allowance of HB 280, Laws of Missouri 1965, p. 415, which was in effect at the date of the accident) the referee allowed an award of $14,570 (310 weeks at $47 per week) together with $1,040 for a healing period. Up to the time of the award, the employer had paid to Cowan aggregate payments of $9,266.68, of which $1,040 was for the healing period. The referee granted to the employer as a credit against the total award the sum of $9,266.68, of which $1,040 covered the healing period and the balance of $8,226.68 applied toward the amount for permanent partial disability.

The sole issue in dispute before the referee was whether the employer is legally entitled to the $8,226.68 portion of the credit. On Cowan’s application for review of the referee’s determination, the Industrial Commission affirmed. Cowan then sought review in the Circuit Court, and that court affirmed the Industrial Commission. Cow-an now appeals the same question here.

The payments giving rise to the credit in dispute were made under the employer’s Plan for Employees’ Pensions, Disability Benefits and Death Benefits. That Plan had been originally established in 1913 and has remained in effect unchanged since 1947. The benefits are all funded by the employer itself and are entirely noncontributory on the part of the employees. However, the employer has a collective bargaining agreement with the Communication Workers of America under which it is provided that the company will not reduce or diminish the benefits under the Plan without the consent of the Union.

This Plan in pertinent parts provides for disability benefits at full pay for a limited period of time and thereafter at half pay for the remainder of disability. The Plan contains a note that: “These payments include Workmen’s Compensation amounts.” Paragraph 24, Section 8, of the Plan further provides that the employee or his beneficiaries “may elect to accept such benefits or to prosecute such claims at law as he or they may have against the Company. If election is made to accept the benefits, such election shall be in writing and shall release the Company from all claims and demands * * * otherwise than under these Regulations, on account of such accident.” The Plan further provides in paragraph 27 that if any benefit is payable under any law of the same general character as a payment provided in the Plan, then “the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan * * *.”

Promptly after the accident, the employer commenced payments as provided in the Plan. The check stub concerning each payment, or else an enclosure accompanying the check, bore the following notation: “Amount due you on account of accident disability for the period _ to_, inclusive, under the Missouri Workmen’s Compensation Law, and for accident disability benefits under the Employees’ Benefit Plan of this Company for the same period.”

Cowan makes the following points on this appeal: 1) that no part of the payments by employer under the Plan is entitled to allowance as a credit against the Workmen’s Compensation permanent partial disability award; and 2) that if any credit is allowable, then no credit should have been given for payments past the time that the employee was able and willing to resume his employment.

I.

The Contention for Total Disallowance of Credit

The allowance of payments by an employer as a credit against the Workmen’s Compensation award is governed by § 287.-160-3, which provides that “[t]he employer shall be entitled to credit for wages paid the employee after the injury, and for any sum paid to or for the employee or his dependents on account of the injury * This statutory provision was construed in Strohmeyer v. Southwestern Bell Telephone Co., 396 S.W.2d 1, l.c. 8 (Mo.App.1965) as applied to this very same Employee Benefit Plan and it was there held that benefits paid under this Plan qualify for the statutory credit as sums paid to the employee “on account of the injury.” That decision is controlling here.

Cowan seeks to distinguish Strohmeyer on various grounds. He argues first that the court in Strohmeyer emphasized that the claimant there made no attack upon the legality of the Plan, in consequence of which the court stated that “we do not rule upon the legality or enforceability of the plan or any provision thereof.” Cowan states that here by way of contrast he does challenge the legality of paragraph 24 of Section 8 of the Plan, which calls upon the employee to make an election for benefits under the Plan or to prosecute a claim under the Workmen’s Compensation law and if he elects to accept benefits, then he shall be required to release the company from all other claims on account of the accident. Cowan argues that this provision violates § 287.390.

Assuming that paragraph 24 of Section 8 is illegal for the reason stated, that does not touch any issue in this case. The employer does not rely here upon that provision of the Plan and makes no contention that Cowan has released or waived any rights under the Workmen’s Compensation Act. To the contrary, the employer stands ready and willing to pay the award as made which is $6,343.32 in excess of what it has heretofore paid under the provisions of the Plan. All that the employer asks is that it be allowed a credit for what it has already paid, a credit which it justifies under the terms of the Workmen’s Compensation Act itself, rather than any provision of the Plan. Since the employer in no way relies upon the provisions of paragraph 24 of the Plan, the legality or illegality of that provision becomes of only academic interest so far as this case is concerned.

Next, Cowan seeks to distinguish Stroh-meyer on the ground that he has a vested right to benefits under the Plan, whereas the court in Strohmeyer held that the employee there had no vested right because he had elected to release the employer under paragraph 24 of Section 8 and he had not challenged the legality of that paragraph. This attempted distinction avails Cowan nothing.

It is to be noted that in Strohmeyer the court also held that “we need not rule whether the existence of such a vested right would prevent this credit.” In an effort to develop why a “vested right” in this regard should bar credit to the employer, Cowan argues that the “vesting” accrues by reason of the provision in the collective bargaining agreement that benefits cannot be reduced except with consent of the Union, that this converts the benefits into a condition of employment, and that therefore the disability benefit under the Plan has been turned into a form of “insurance of the injured employee” within the meaning of § 287.270 which provides that “[n]o savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer’s insurer for liability under this chapter, shall be considered in determining the compensation due hereunder.”

This convoluted argument is untenable. Strohmeyer carefully considered this very Benefit Plan in relationship to § 287.-270. The court there set forth in meticulous detail the type of benefits received by the employee from outside sources which § 287.270 intended for the employee to receive in addition to and free of any credit against Workmen’s Compensation benefits. Then, having before it this very Plan, the court in Strohmeyer held: “[t]his section of the act was never intended to cover the situation present in the case at bar.” This interpretation by Strohmeyer of § 287.270 was independent of any question as to whether or not the right to benefits under the Plan was a vested one. Vested or not, the disability benefits under this Plan are simply not “insurance of the injured employee” or of any other type of benefit within the intended protection of § 287.270.

Cowan also seeks to find other factual differences from Strohmeyer based on differences in deductions made from the benefit payments and slight differences in notations on the check stubs accompanying each payment. These minor differences are inconsequential and have no legal significance.

Beyond the technical analysis just made, there looms in the background the important policy consideration that employers should be encouraged to, not discouraged from, adopting or agreeing to arrangements such as the instant Plan. An excellent statement of that policy consideration appears in Point v. Westinghouse Electric Corp., 382 S.W.2d 436, 441 (Mo.App.1964):

“An employer who has paid an employee at the time of that employee’s greatest need more than he was obligated to pay should not be penalized by being denied full credit for the amount paid above the requirements of the act as against the amount which might subsequently be determined to be due the employee. To do so would inevitably cause employers to be less generous. By limiting the payments the employer can safely make to the amount of temporary total disability the result would be that the employee would lose his full salary at the very moment he needs it most. Such a construction is neither liberal nor one made with a view to the public welfare.”

II.

The Contention for Partial Allowance of Credit

As an alternative to complete disallowance of credit for payments made by the employer under the Plan, Cowan contends that the credit should be a figure less than $8,226.68. Just what Cowan believes that lesser figure should be is left in a state of confusion by his brief. At one point his brief states that the credit should be limited to a period of 85 weeks at $52 per week, thus making the credit $4,420. 85 weeks from the date of the accident would place the cutoff date under this calculation at March 18, 1968, the date when he returned to work. At another point Cowan’s brief argues that the credit should extend for a maximum of 73 weeks, producing a total amount of $3,796. 73 weeks from the date of the accident would place the cutoff point at December 27, 1967, a date upon which the employer offered Cowan a job but he declined. At still another point in Cowan’s brief, he argues that he was able to and should have been put back to work on August 1, 1966, and that the cutoff period ended on that date. Cowan’s brief makes no effort to reconcile these varying contentions and differing computations. However, it can be assumed that he is suggesting alternative cutoff dates for the allowance, any of which would result in a credit less than the one accorded by the referee.

The theory underlying this point on Cowan’s appeal, regardless of which cutoff date be taken into account, is that the credit allowable under § 287.160-3 cannot exceed the amount which could have been granted to the employee for temporary total disability under § 287.170. Cowan’s argument necessarily proceeds on the premise that the period of temporary total disability ended on one of the alternative dates suggested by him and that the number of weeks for which a credit at $52 per week could be given also then terminated. The fatal fallacy in this argument is that the credit under § 287.160-3 is not limited to an amount equivalent to that which could have been allowed for temporary total disability. Cowan cites no authority whatsoever for that necessary premise of his argument. On the other hand, Strohmeyer holds directly to the contrary at 396 S.W.2d, l.c. 6. The ruling in Strohmeyer follows the same ruling which was made in Point v. Westinghouse Electric Corp., 382 S.W.2d 436, l.c. 441 (Mo.App.1964).

Affirmed.

All concur.

      . All statutory references unless otherwise noted are to RSMo 1969.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Earl Leroy GILBERT, Appellant.
    No. 9985.
    Missouri Court of Appeals, Springfield District.
    Oct. 9, 1975.
    Motion for Rehearing or Transfer to Supreme Court Denied Oct. 16, 1975.
    Application to Transfer Denied Dec. 8, 1975.
    Dan L. Birdsong, Pros. Atty., Rolla, for respondent.
    Jay V. White, Rolla, for appellant.
   PER CURIAM.

A Phelps County jury convicted defendant of driving while intoxicated and assessed a fine of $100

Appellant’s complaints regarding the qualifications, or lack thereof, of the state trooper to administer a breathalyzer test and evidence thereof were answered by this court in State v. Forester, 490 S.W.2d 671 (Mo.App.1973), and State v. Kramme, 491 S.W.2d 24 (Mo.App.1973).

We have read the transcript and briefs of the parties and find the evidence in support of the jury’s verdict is not insufficient and no error of law appears. An opinion would have no precedential value.

Affirmed pursuant to Rule 84.16(b), V.A. M.R.

      . An earlier appeal was dismissed as premature. State v. Gilbert, 507 S.W.2d 25 (Mo.App.1974).


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Steven James POLK, Defendant-Appellant.
    No. 35812.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 21, 1975.
    Charles D. Kitchin, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Paul Robert Otto, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Patrick J. Hitpas, Asst. Circuit Atty., St. Louis, for respondent.
   KELLY, Judge.

Steven James Polk, hereinafter the defendant, appeals from a conviction, following jury trial, of Illegal Possession of a Schedule I Substance, Heroin, in violation of §§ 195.020 and 195.200 RSMo. 1971, and the court-imposed sentence of 12 years in the custody of the Missouri Department of Corrections.

Defendant was charged in an Amended Information with the above named offense on May 24, 1973, and a prior conviction of possession of a stimulant drug on May 1, 1970. During the course of the trial a hearing was had on the issue of the prior conviction and from the evidence adduced thereat the trial court found that defendant was subject to the provisions of § 556.280, the Second Offender Act, and did not, therefore, submit to the jury the issue of punishment.

Viewed in a light most favorable to support the jury verdict, the evidence at trial would support a finding that on May 17, 1973, an unidentified, previously reliable informer advised officers Gordon and Morgan that a Robert Seddens was selling heroin from an apartment at 5802 Clemens, in the City of St. Louis. Relying on this information both officers prepared affidavits, a complaint for search warrant, and a search warrant on that same day. Because Officer Morgan, who was familiar with the neighborhood, doubted the existence of the address given by the informer, he and Gordon accompanied the informer to the neighborhood where the informer pointed out to them the building numbered 5820 Clemens. Having obtained this information the officers then erased the “02” portions of the address in each of the documents they had prepared and inserted in lieu thereof the figures “20.” The dates on each of the documents, which had originally been dated May 20th were also changed to May 21st due to the fact that the two police officers had been unable to make application for the search warrant on the 20th. All the aforesaid changes were made prior to the application for the search warrant to a Judge of the St. Louis Court of Criminal Correction on May 21, 1973. The affidavits in support of the application for search warrant refer to the informer advising the police officers that Robert Seddens was selling heroin out of his apartment # 304 at 5820 Clemens; that the narcotics were contained in small tin foil packets or capsules and were kept by Seddens in various parts of his apartment; that the informant had occasion to be in Seddens’ apartment on May 17th, and while there observed numerous known narcotic addicts enter and purchase narcotics from Seddens, after which Seddens would then leave the room and return shortly with either small capsules or tin foil packets and hand these to the purchaser and in return receive $10.00 for each capsule or packet sold. The “Application for Warrant” described the contraband as “A large quantity of heroin and various amounts of controlled substances and paraphernalia for the unauthorized use thereof.” It further described the premises to be searched as: “The third floor brick constructed multi-dwelling apartment building and basement beneath said building located, known and numbered as 5820 Clemens Apartment 304: in the City of St. Louis, Mo.” The search warrant issued authorized a search for “A large quantity of heroin and various amounts of controlled substances and paraphernalia for the unauthorized use thereof” on the premises described in the affidavits and application as “5820 Clemens Apartment 304.”

Armed with the search warrant issued by the Judge of the St. Louis Court of Criminal Correction on May 21, 1973, the two police officers who had made application for the search warrant and four others went to the premises at 5820 Clemens and to Apartment 304 on May 24,1973, at about 10:45 p. m. and knocked on the door to the apartment. No one responded and after they remained standing outside the apartment for approximately 10 to 15 minutes, the defendant and a white man, approximately 24-25 years of age, approached the apartment. The police officers advised the defendant that they had a search warrant to search the apartment, read the search warrant to him and gave him a copy and advised him that they wanted to search the apartment. The defendant opened the door to the apartment with a key and told them: “Go ahead and search.” One officer testified that he also said that he didn’t have any narcotics on the premises. Officer Gordon was designated the “search officer” and during the course of the search of the apartment he seized from a closet shelf on the southwest wall of a bedroom situated in the rear of the building, a “male jewelry box” containing a pill box in which there was a pink capsule and some white powder, 2 hypodermic needles, 2 eye-droppers or syringes, and three bottle caps which the police officers identified as “cookers” for the processing of heroin. Also a number of other pink capsules were found in the jewel box but these were partially empty. Defendant was advised that he was under arrest and “given his rights” but nonetheless, when he was asked if he lived in the apartment with anyone, stated that he lived there alone. The items seized on the premises were placed in an evidence bag and the defendant was given a receipt for them. The defendant was taken to the police station and then the articles seized were taken to the Narcotics division offices at police headquarters where they were marked and then delivered to the police department laboratory. A police department criminologist testified that he analyzed the contents of the evidence bag and by means of a “color test” and a microcrystalline test and determined that five of the seven capsules contained “traces” of a white powder tested positively for heroin. Everything else tested negatively. There was so little heroin in the capsules that it could not be weighed and the tests consumed all of the heroin “traces” found, so there was none left, and the capsules containing these “traces” of heroin were not introduced into evidence at the trial by the State.

Defendant’s only witness was John D. Simon, Jr., who testified that in the latter part of April, 1973, he and three others— defendant, Vince Jordan, Mike Greenlea— rented the apartment in the defendant’s name. He, Simon, paid $20.00 towards the rent, although he did not know how much the monthly rent was. He had only used the apartment occasionally, amounting to a total of perhaps seven days, for study and to visit with his girlfriend. He testified that the jewel box belonged to Mike Green-lea and that he had seen it and the contents on the dresser in the bedroom on one occasion. He stated that he had to open the lid of the box to see its contents, and on that occasion it did not contain any pink capsules. He denied that he had ever seen Mike Greenlea use heroin in the apartment and said that he had in the past seen syringes like those in the jewel box used by his cousin who was a diabetic. He admitted, on cross-examination, that he did not know whether Mike Greenlea or any of the others with whom he rented the apartment were diabetic. He denied knowing what the bottle caps were for.

On appeal the defendant raises a number of points which he contends require reversal of his conviction. However, because of the result we have reached in this case we do not reach other than his contention that the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence for the reason that the State failed to prove “knowing and conscious possession” of heroin which he is charged with unlawfully and feloniously having in his possession on the 24th day of May, 1973.

To sustain a conviction for possession of a controlled substance in violation of § 195.020 RSMo. it is essential that the State prove that the defendant did knowingly and intentionally have in his possession the proscribed controlled substance. It is not sufficient that it prove only actual or constructive possession, but the test is whether the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it. State v. Burns, 457 S.W.2d 721, 724[1] (Mo.1970) said: “Possession without knowledge of such possession is not possession in the legal sense of that word . . .. Knowledge of the existence of the object is essential to physical control thereof with the intent to exercise such control and such knowledge must necessarily precede the intent to exercise or the exercise of such control . . . ” Burns, supra, was followed in State v. Berry, 488 S.W.2d 667, 669 (Mo.App.1972).

For reasons hereinafter stated we conclude that there was no substantial evidence that the defendant knowingly and consciously had under his control nor in his possession the heroin in question and the judgment of the trial court must therefore be reversed and the defendant ordered discharged.

There is in this case no direct evidence that the defendant had actual possession of the heroin because it was not found on or about his person or in his immediate vicinity. If, therefore, his conviction can be allowed to stand, it must be supported by evidence which will authorize a jury to find beyond a reasonable doubt that he had constructive possession of the narcotic and that he had it with an awareness of the presence and character of the substance. While both of these elements may be proved by circumstantial evidence, such circumstantial evidence must be inconsistent and irreconcilable with the defendant’s innocence and point clearly and satisfactorily to his guilt so as to exclude every reasonable hypothesis of his innocence. State v. Berry, 488 S.W.2d 667, 669[3] (Mo.App.1972).

The decisive issue in this case as we conceive it is whether the State is entitled to the “inference” of knowledgeable and conscious possession of narcotics from the facts of exclusive possession of the premises where only “traces” of heroin are found in some capsules contained in a box hidden in a bedroom closet in the apartment occupied by the defendant. We have read no case where a finding of “traces” of a narcotic alone has been held sufficient to support a finding that the defendant had possession of the narcotic “in the legal sense of the word.” In every case we have read there has been at least a measurable quantity of the narcotic found. This defendant was charged with the possession of heroin on May 24, 1973. The only evidence in this case was that someone at some time possessed some heroin as was evidenced by the results of the color test and microcrystalline test conducted by an expert in the field. To find the defendant guilty under the facts of this case of a charge of knowledgeable possession would require the piling of one inference upon another and this is not permitted.

The State relies on State v. Jefferson, 391 S.W.2d 885 (Mo.1965), State v. Virdure, 371 S.W.2d 196 (Mo.1963) and State v. Young, 427 S.W.2d 510 (Mo.1968).

We conclude that here, as in Burns, supra, the State falls into the same trap in arguing that “simple possession” of a narcotic substance, no matter how miniscule, constitutes substantial evidence to sustain a finding that the possessor of the substance has violated the possession statute. In Burns the Supreme Court refuted this same argument when it pointed out, 1. c. 724, that the issue there was not whether the defendant had knowledge that marijuana was a narcotic and a prohibited substance, but whether, in order to be guilty of illegal possession, the State had to prove that the defendant was conscious that he had possession of the prohibited substance. This latter question the court answered in the affirmative in Burns, and in doing so distinguished State v. Virdure, supra, on the grounds that in Virdure the court found that there was, under the facts of that case, sufficient evidence to authorize a jury to “draw the inference” that the defendant knew he had possession of the marijuana, but that the effect of Virdure was that the State had to prove that the defendant knew he had possession of the drug. In Virdure “scrapings” of marijuana were found by a police dog on the floor mat of the trunk of the defendant’s automobile in sufficient quantity to be placed in an envelope and tested, although the weight of the scrapings, if any, was not discussed. The police dog, trained in sniffing out narcotics, found, in addition to the aforementioned scrapings, some 75 to 100 red and green colored boxes on a shelf in the northwest corner of the basement of defendant’s place of business, at least one box of which contained a quantity of marijuana. How much of the marijuana was found in the box was not set out in the opinion. Virdure, for that reason, does not control here because the question of the amount of a narcotic to support a conviction of possession was not before the court there.

Nor do we conclude that Jefferson is controlling here, for there the defendant at the time of his arrest was observed by the arresting officer about to “shoot up” with a hypodermic needle and syringe in his right hand and a rag or piece of cloth tied around the upper part of his left arm. After coming to the door and seeing the police officers, the defendant retreated into the house followed by the officers who seized the aforementioned narcotics paraphernalia and the fluid contained in the syringe. On analysis the fluid in the syringe was found to contain amphetamine. Among the circumstances considered by the court in affirming the conviction of Jefferson was the fact that it is common knowledge that drug addicts use hypodermic needles to inject prohibited drugs into their bodies, defendant’s attempt to run away, and his further effort to conceal the syringe and needle behind him until he finally dropped them to the floor at his feet. Jefferson’s contention was that the State failed to prove that he had in his possession a drug, amphetamine, which “has an exciting effect on the central nervous system of a human or animal.” It was in this context that the court in Jefferson reached its conclusion that the phrase in § 195.220 RSMo. 1971, defining a “Stimulant” to mean “amphetamine or any of its derivatives which have an exciting effect on the central nervous system of a human or animal” taken together with the list of all drugs falling within the purview of the terms barbiturate or stimulant required to be filed with the Secretary of State by § 195.230 RSMo. 1971, was not intended by the legislature to “prescribe the quantity or amount of amphetamine or its derivatives that must be possessed before the possession becomes unlawful,” and went on to state that “The statute does not specify any permissible quantity or amount.” It was on the basis of this conclusion that the court followed by concluding that “the possession of any amount, even a modicum, of amphetamine is within the prohibition of the statute,” and that therefore it was not necessary for the State to prove the solution which the defendant had would excite the central nervous system of human or animal. The question whether Jefferson possessed a sufficient quantity of amphetamine from which knowing and conscious possession could be found was not before the court.

State v. Young, supra, merely held that three milligrams of heroin was sufficient to sustain a conviction of unlawful possession of a narcotic drug under § 195.020 RSMo. 1971. As in Jefferson, the question was not whether there was sufficient substance from which knowledgeable or conscious possession could be proved, and in reaching its conclusion the court carefully noted, 1. c. 513: “The record in this case was not directed to the question of whether there was a measurable quantity of heroin, it was not claimed that the ‘modicum’ of heroin in the capsules was of such infinitesimal quantity as to be unmeasurable — it was directed to whether there was such a quantity that ‘he could get any effect from three milligrams of heroin.’ ” (Emphasis supplied). The court in Young recognized that there was a split of authority as to what constitutes possession of a narcotic under § 2 of the Uniform Narcotic Drug Act and that the Virdure and Jefferson cases “indicate, if they do not authoritatively determine” that Missouri is aligned with that line of cases which holds that the possession of any amount, however small, is within the prohibition of the statute. Our holding here does not, in our view, conflict with Young, Virdure nor Jefferson, because the point we decide here was not presented to the court in those cases in the same posture it is presented to us.

What we do hold here is that under the peculiar facts and circumstances of this particular case where the only evidence to support the conviction of possession of a controlled substance as that term is used in § 195.020 RSMo. 1971, is that an amount of the controlled substance which is so miniscule as to constitute a mere “trace” and which is immeasurable and consumed in the performance of the basic test necessary for identification of the substance is insufficient to support a finding that the accused was knowingly, intentionally and consciously in possession of the controlled substance in violation of the statute.

We are unable to deduce from the State’s evidence that on remand it could present further evidence to overcome the infirmities inherent in this case and we therefore do not remand for a new trial, but rather reverse the judgment of the trial court and order the defendant discharged.

SMITH, C. J., and STEWART, J., concur.


author: FLANIGAN, Judge.

text:
    Wilbur SLENTZ et al., Plaintiffs-Appellants, v. CHEROKEE ENTERPRISES, INC. and Gerald D. Simkins, Defendants-Respondents.
    No. 9687.
    Missouri Court of Appeals, Springfield District.
    Oct. 27, 1975.
    Bob J. Keeter, Schroff, Keeter & Glass, Inc., Springfield, for plaintiffs-appellants.
    Leland C. Bussell, David W. Bernhardt, Bussell, Hough, Greene & Bernhardt, Springfield, for defendants-respondents.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action to quiet title.

Plaintiffs-appellants are five married couples, each owning a lot in Cinderella Village, “a subdivision in Greene County, Missouri.” Defendant-respondent Cherokee Enterprises, Inc. is the owner of land adjoining, and located west of, plaintiffs’ lots.

Lot 16, owned by plaintiffs Correll, is the northernmost lot. Lot 18, owned by plaintiffs Larkins, is adjacent to and south of the Correll lot. The Nagy lot, Lot 20, is south of the Larkins lot, the Slentz lot, Lot 22, is south of the Nagy lot, and the Morri-set lot, Lot 24, is south of the Slentz lot.

The north-south dimension of the area in dispute is 455 feet. Its width at the north end, west of the Correll lot, is 14.8 feet and its width at the south end, west of the southern border of the Morriset lot, is 10 feet.

The claim of plaintiffs to the disputed area is based on adverse possession; the claim of defendant Cherokee to that area is based on record title. The west side of the disputed area is marked by “an old fence” and the east side of it is the true boundary line as shown by a survey based on record titles.

In the petition each set of plaintiffs requested a decree adjudging them to be the owners of that portion of the disputed area lying west of their respective lots. The counterclaim of defendant Cherokee requested a decree “quieting title in the defendants to the disputed property.” Both the petition and the counterclaim contained additional claims but they are no longer in dispute.

The trial court, after making findings of fact and conclusions of law, found in favor of defendant Cherokee and declared that Cherokee was the owner of the disputed strip. Plaintiffs appeal.

This court must review this non-jury case upon both the law and the evidence as in suits of an equitable nature and must give due regard to the opportunity of the trial court to have judged the credibility of witnesses. Rule 73.01, par. 3, V.A.M.R.

Since plaintiffs base their claim on adverse possession, the burden of proof as to each of the five elements of adverse possession is on plaintiffs. Wilton Boat Club v. Hazell, 502 S.W.2d 273, 276[5] (Mo.1973). However, once the plaintiffs made a prima facie case on the issue of adverse possession, the burden of going ahead on that issue shifted to the defendants. Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 4[1] (Mo.1970) and authorities there cited.

Although the reviewing court will defer to the findings of the trial court where credibility of witnesses is involved, the reviewing court need not do so where “a disputed question is not a matter of direct contradiction by different witnesses.” West v. Witschner, 428 S.W.2d 538, 542[7] (Mo.1968). See also Schott v. Bruce, 407 S.W.2d 61, 65[6] (Mo.App.1966).

Because certain facts pertain only to the appeals of plaintiffs Correll and Morriset, they will be discussed later.

The appeals of Larkins, Nagy, and Slentz are treated first.

The action was commenced on August 22, 1973. Slentz obtained title to and possession of Lot 22 in June, 1963. Earlier the Nagys and Larkins had acquired their lots. These plaintiffs presented evidence, which need not be detailed, sufficient to make a prima facie case on the issue of adverse possession. In general their testimony was that throughout their respective ownerships they had possessed that portion of the disputed strip adjacent to their lots, claiming that the old fence was the boundary line, and exercising open and notorious dominion over the area by planting trees and shrubbery, gardening, and mowing it. The “old fence” had been there at least since 1958. Photographs were introduced in support of plaintiffs’ testimony.

There was also testimony that one Meeks, defendants’ predecessor in title, had recognized the old fence as being the boundary line.

The evidence of these plaintiffs shifted to the defendants the burden of going forward on the issue of adverse possession. The evidence adduced by the defendant falls short of sustaining that burden.

Defendants’ witnesses were Bill Ma-cLachlin, Allen Cates, and Gerald Simkins. Their testimony disclosed the following: Simkins and MacLachlin obtained record title to the disputed area on September 22, 1972, and conveyed it, with other land, to Cherokee in November, 1972. Sometime after March, 1973, plaintiff Larkins told MacLachlin that he, Larkins, knew where the true boundary line was. MacLachlin knew that the plaintiffs were using the disputed area “but I figured that they had been given permission to use it . . .1 just took it for granted.”

Cates made a survey for Simkins in September, 1972, and the survey showed the location of the true boundary line which was east of the old fence. On the ground Cates found some pins which indicated the location of the true boundary line. Cates noticed “some pretty good sized trees” were in the disputed area and they had been there several years. He noticed also that east of the old fence the yards were maintained in a mowed and clipped condition, while on the west side of the old fence it was pasture land. Cates said “In two of the places I can remember,” without specifying which two, “the people living in the houses east of the fence were using as their yards the land right up to the fence.”

Cates also testified that while Simkins, for Cherokee, was having the area surveyed and platted, Simkins “had some question about whether the fence was where he owned or whether the property line was where he owned,” the “property line” meaning the true line as disclosed by Cates’ survey.

Simkins testified that Cherokee platted an area in February, 1973, as “Cherokee Estates Second Addition” and this area included the strip in dispute. After the area had been platted, and Simkins and his associates started to install utilities, Simkins first became aware that plaintiffs were making an adverse claim. However, he had not had any conversation with any of the plaintiffs prior to March, 1973. When Sim-kins talked with the plaintiffs “they seemed to know where the true line was.” Simkins admitted seeing the old fence and seeing “the way the lands were being used up to the old fence.” Simkins did not ask the plaintiffs whether the plaintiffs were claiming ownership up to the fence, although the plaintiffs indicated they knew the location of the true boundary line. Simkins also testified that “[i]t is probably true that later on when the plaintiffs found out I was contending their ownership did not go to the fence that they had used for years, they told me they did not agree with me.”

The trial court found that “plaintiffs’ use of the disputed land which they are claiming has been with the permission of the defendant and its predecessors in title and plaintiffs knew that prior to the platting and use of the said property by defendants the plaintiffs had no legal title to the disputed land.” The portion of this finding dealing with permission is not supported by the evidence. No plaintiff testified that his use was permissive. MacLach-lin, who may not have seen the disputed area prior to September, 1972, and who had no conversation with any plaintiff prior to March, 1973, testified that he “figured that they had been given permission to use it. I just took it for granted. I did not make any investigation.” Such testimony does not support a finding of permissive use.

Neither Cates nor Simkins offered any testimony supporting a finding of permissive use.

Although most of the plaintiffs testified that they believed the old fence to be the true boundary line, there was testimony that some of them knew the location of the true boundary line. However, such latter knowledge, assuming it existed, is not an impediment to a valid claim of adverse possession.

“In determining the character of the possession, the important factor is, not whether the true line is known or whether there is a mistake as to the boundary, since the location of a fence beyond the true boundary line is usually due to mistake, but it is the intent with which the boundary fence is built and the unequivocal character of the claim made thereafter, which is decisive of the question. ... In short, the determining factor is not what the encroaching owner knew about the true boundary line, but what he intended to unequivocally claim was his boundary line.” Bell v. Barrett, 76 S.W.2d 394, 396[3] (Mo.1934). See also Pollock v. Bouse, 430 S.W.2d 149, 151 (Mo.1968).

The important thing is that the evidence of plaintiffs showed that each of their respective possessions of the disputed area was coupled with “the intent to possess.”

Defendant Cherokee relies upon the following findings of fact made by the trial court:

1. “Defendants and their predecessors in title are the true record owners of the real estate in question.”

2. “Defendant Cherokee Enterprises, Inc. and its predecessor in title have owned the real estate in question since common ownership, have paid taxes thereon, and have claimed said property at all times and in all conveyances since common ownership.”

3. “Plaintiffs and their predecessors in title have not been in open, notorious, uninterrupted and continuous possession of said property for the required period of ten years.”

Plaintiffs argue, validly, that finding of fact no. 1 is in the nature of a conclusion of law. If the finding is that the record title of plaintiffs did not extend westward to the old fence, that fact was conceded. It is, of course, not determinative of the basic issue of whether plaintiffs have, by adverse possession, acquired title to the disputed area. If, as this court holds, plaintiffs did acquire title by adverse possession, that title “is as good as the best when established.” Crane v. Loy, 436 S.W.2d 739, 743 (Mo.1968).

Finding of fact no. 2 is not controlling. Though it is true that Cherokee and its predecessor did have record title to the disputed area, that title has been superseded by plaintiffs’ title gained through adverse possession. With respect to taxes, Simkins testified that “at the end of 1972 and in 1973” he paid the taxes on land which included the disputed area. However, “[t]he mere payment of taxes does not create title, and likewise the mere nonpayment of taxes does not divest title.” Conran v. Girvin, 341 S.W.2d 75, 91[19] (Mo. banc 1960). See also Pioneer Cooperage Co. v. Dillard, 332 Mo. 798, 59 S.W.2d 642, 644[2] (1933). That portion of the finding to the effect that Cherokee and its predecessor “claimed said property at all times” is not supported by the evidence. Indeed, the testimony, admitted without objection, was that Meeks, defendants’ predecessor, made the statement to plaintiff Nagy, in 1964 or 1965, that the old fence was the boundary line. There was no testimony to the contrary.

Finding of fact no. 3 was not supported by the evidence. The testimony of plaintiffs was clearly to the effect that they had been in their respective possession for ten years and that such had been “open, notorious, uninterrupted, and continuous.” Nothing in the evidence adduced by defendants materially contradicted plaintiffs’ evidence in that respect.

Thus, the trial court erred in not finding in favor of plaintiffs Larkins, Nagy, and Slentz on their respective claims to be the owners of those portions of the disputed area lying west of their lots.

The same arguments which Cherokee made against the claims of Larkins, Nagy, and Slentz were also leveled against plaintiffs Morriset and Correll, and they are similarly unavailing with respect to the latter plaintiffs.

With respect to the claim of Morriset, defendants advance the additional argument that the Morrisets “clearly did not claim the property in question adversely at any time including the day of trial.” This argument is factually unsound. Mr. Morri-set testified that his ownership and possession of Lot 24, including the disputed strip west of it to the old fence, commenced in February, 1962; that he intended to possess the land up to the old fence and thought the old fence was the actual boundary and thought that he owned up to the old fence. On cross-examination he testified that he did not know that Simkins was making any claim to the disputed area until the summer of 1972.

Defendants stress that portion, which is somewhat lacking in clarity, of Morriset’s testimony to the effect that Morriset told Simkins that Morriset would move a shed “over onto (Morriset’s) lot.” The reasonable inference is that the shed was on the disputed area.

The defect in defendant’s argument is that Morriset’s title, by adverse possession, had ripened in February, 1972, prior to any conversation with Simkins concerning the shed. “As to the land, adverse possession for the statutory period establishes an indefeasible legal title in the possessor, the title of the record owner is divested and, unlike the easement cases, that title is not lost by abandonment (Feeler v. Reorganized Dist No. 4, supra [Mo., 290 S.W.2d 102]; 1 Am. Jur., Secs. 11, 13, pp. 796, 797; 2 C.J.S. Adverse Possession §§ 199-201, 208, pp. 803, 807) or mere failure to assert title after it has been perfected.” La Grange Reorg. Sch. Dist. No. R-VI v. Smith, 312 S.W.2d 135, 139[7] (Mo.1958).

Mrs. Morriset testified that throughout their occupancy of Lot 24 they had used the back yard area up to the old fence and “intended to take up to the fence.”

The trial court erred in not finding in favor of plaintiffs Morriset on their claim to that portion of the disputed area lying west of Lot 24.

With respect to the claim of Correll, defendants advance the additional argument “that these appellants were not in possession of the property for the requisite ten years; there was no showing that the predecessor in title of these appellants intended to claim the land in question; the conveyance by which these appellants took title to their property did not describe the land in question, which indicates that there was no intention to claim the property adversely.”

The Corrells moved to Lot 16 on December 5, 1963, at which time they rented it from Robert Quigg, then the owner. Quigg had acquired the property in 1959. The Corrells bought the property from Quigg in 1969. Throughout the Quigg and Correll possessions, they respectively possessed the disputed area west of Lot 16 and up to the old fence. The disputed area was mowed, and flowers were planted in it. Clothes line posts set in concrete were placed in it by Quigg. Correll testified, without objection, that Quigg “said the fence line was the boundary.” Correll said that he intended to possess up to the old fence and did so.

“The doctrine of ‘tacking’ is one which permits an adverse possessor to add his period of possession to that of a prior adverse possessor in order to establish a continuous possession for the statutory period.” 3 Am.Jur.2d Adverse Possession § 58, p. 146, quoted with approval in Crane v. Loy, 436 S.W.2d 739, 744 (Mo.1968). Crane also contains the following language at p. 743: “Where a person having title by deed to a lot or tract of land described in the deed also has inclosed with it and is in possession of adjoining land to which he has no record title and conveys the land by the description in the deed, and delivers with it the possession of the entire inclosure, the continuity of possession will not be broken and the two possessions may be joined and considered as one continuous possession. The point at issue is the intended and actual transfer of possession of the land held adversely.”

The acts of Quigg, coupled with his knowledge, although mistaken, that the fence was the boundary line, permit the “tacking” of the Quigg and Correll possessions and the statutory period of ten years is satisfied. Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042 (1942); Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544, 546[5, 6] (1947). See also annotation in 17 A.L.R.2d 1128 (“Tacking adverse possession of area not within description of deed or contract”).

The trial court erred in not finding in favor of plaintiffs Correll on their claim to that portion of the disputed area lying west of Lot 16.

The judgment is reversed and the cause is remanded with directions to the trial court to enter judgment quieting title in the respective plaintiffs to those portions of the disputed area lying west of their respective lots.

All concur.

      . Another defendant-respondent is Gerald D. Simkins, immediate grantor of Cherokee. Simkins is an officer and shareholder in Cherokee but in the trial court and in this court the parties have treated Simkins as if his interests are identical with those of Cherokee. The disposition of the action makes it unnecessary to accord his position separate discussion.

      . “There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be hostile, and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and, fifth, it must be continuous.” Swope et al. v. Ward et al., 185 Mo. 316, 324, 84 S.W. 895, 896, and quoted in Wilton Boat Club v. Hazell, 502 S.W.2d 273, 276 (Mo.1973).

      . “If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse. It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which ■ governs. Possession is a legal concept. It involves two things: A present or, in the case of constructive possession, a past ability to control the thing possessed plus an intent to exclude others from such control. Or, in the language sometimes used in the cases, to exercise dominion over the object possessed. One may have such an intent in the case of property actually belonging to another, because he intentionally wants to take it away from the owner. But he may also have this intent because he is mistaken as to the facts of legal ownership.” State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176, quoted with approval in Boeckmann v. Fitzpatrick, 491 S.W.2d 524, 527 (Mo.1973).