author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Paul SEEMILLER, Appellant.
    No. 38067.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 16, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Allan Goodloe, Jr., Shaw, Howlett & Schwartz, Clayton, for appellant.
    Gregory D. Hoffmann, Preston Dean, Asst. Attys. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., Kent W. Fanning, Asst. Pros. Atty., St. Charles, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Paul Seemiller has appealed from a judgment entered pursuant to a jury verdict wherein he was found guilty of sodomy (Count I) and assault with intent to do great bodily harm without malice aforethought (Count II). We affirm.

There is no challenge to the sufficiency of the evidence as to Count I, but appellant does contend in Point IV of his brief that the court erred in failing to enter a judgment of acquittal as to Count II because there was no evidence of intent. That contention will be discussed subsequently.

By his first Point appellant, somewhat inadequately, asserts prejudicial error resulted when the trial court “allowed the prosecuting attorney to make extraneous, improper, [and] prejudicial comments solely for the benefit of the jury as a course of continual conduct throughout the trial.” The incidents are not otherwise identified in the Point, but in the argument we find reference to nine incidents. As to five of them appellant’s objection was sustained and no other relief was requested. As to two other incidents, appellant interposed no objection and no relief was requested. These seven incidents have not been preserved for appellate review, State v. Martin, 346 S.W.2d 71 (Mo.1961); State v. Johnson, 483 S.W.2d 65 (Mo.1972).

During the examination of the prosecuting witness, the prosecuting attorney asked her to “tell us in your own words exactly what happened * * * and I know it is difficult, but, please, for these men,” (apparently referring to the jury). Defense Counsel objected to “what is difficult and not difficult.” There was no ruling expressly made, but the court called counsel to the bench and commented that the matter had been gone into previously, and to go into it further would be “unduly repetitious.” There was no motion to strike the comment of the prosecutor, and no other request for relief was made. There is nothing preserved for appellate review.

During the cross-examination of appellant, Defense Counsel interrupted and said: “I object to his harassment. The witness has already testified to it all.” The court overruled the objection. We have read carefully the preceding testimony and there is not the slightest indication of harassment. The trial court heard and witnessed the examination, and overruled the objection. We defer to that ruling.

Contrary to appellant’s assertion in his brief, we find no abuse of discretion on the part of the trial court in regard to these nine incidents.

Appellant’s second Point is that the court erred in permitting “proof of other crimes * * * said testimony being irrelevant and immaterial.”

Appellant and a companion picked up the prosecuting witness in their automobile at Soulard and Ninth Streets in the City of St. Louis. She testified that appellant and his companion committed acts of sodomy and beat her with fists from the time she entered the automobile until it was stopped by the police in St. Charles County about seven miles west of the St. Charles bridge over the Missouri River. In argument appellant asserts that “The allowance into evidence of criminal activities that occurred before the defendant arrived in the County of St. Charles, more specifically, the testimony concerning prior acts of sodomy by defendant upon the victim, said prior acts not occurring in St. Charles County, was so inflammatory and intertwined with the allegations in the information, that [appellant] was unable to obtain a fair and impartial trial as to the charges in the information.”

“Although the general rule is that in a criminal trial, evidence of crime other than the one charged is inadmissible, as with most general rules there are certain well-recognized exceptions. ‘Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof.’ State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768 (1953); State v. Shumate, 478 S.W.2d 328 (Mo.1972).” State v. Torrence, 519 S.W.2d 360, 361 (Mo.App.1975). In the Torrence case, the Kansas City District applied the above general rule to a factual situation re-markedly similar to that in this case, and said: “The evidence in this case clearly discloses that from the time the defendant entered the car at 39th and Prospect, until he exited from the car at 56th and Wabash, he had prosecutrix under his power and control. The evidence points to but one conclusion — that defendant exercised power and control over prosecutrix to effect but one design and plan, namely, to make prose-cutrix the victim of sexual excesses. In this context, what occurred in the alley near 18th and Cherry, and at First and Delaware, were but manifestations of this one common design and plan. As such, the whole continuous transaction should be viewed as one, and the separate acts of defendant were admissible.” In this case the continuous acts of appellant were admissible because they formed part of the res gestae of the offense charged. There is no merit to this contention.

Over appellant’s objection that it was hearsay, the trial court permitted the arresting police officer to testify that after he stopped appellant’s automobile the pros-ecutrix came toward him and made a statement in which she related what occurred, and the facts she stated constituted the act of sodomy by appellant. Appellant argues that the statement could not have been a part of the res gestae because there was too great an interval of time between the occurrence and the act. He cites and relies on State v. Rider, 90 Mo. 54, 1 S.W. 825 (1886) and State v. Noeninger, 108 Mo. 166, 18 S.W. 990 (1892). Both of these were cases where a statement of the victim of a shooting was offered in evidence. In the Rider case the victim had walked two hundred yards, and in the Noeninger case the statement was made five minutes after the shooting. Neither of these cases are controlling here. In this case the police officer stopped appellant’s automobile and parked his automobile about fifty feet to the rear. Immediately thereafter appellant and pros-ecutrix got out of the automobile. Prosecu-trix face and blouse were bloody, her clothing was disarranged, and she appeared hysterical. As the prosecutrix came toward him, and before any questions were asked, she made the statement to the officer.

“ ‘When strictly defined, res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.’ ” State v. Hook, 432 S.W.2d 349 (Mo.1968). What constitutes a sufficient showing spontaneity so as to make the statement admissible under the res gestae doctrine depends on the circumstances of each case, Straughan v. Asher, 372 S.W.2d 489, 496 (Mo.App.1963). Statements made by the victims of sexual offenses have been held admissible as a part of the res gestae where the statements were made immediately after the victim escaped or was rescued from her assailant. See the numerous cases cited in the annotation entitled “Time element affecting admissibility of statements by vie-tim of sex crime as res gestae” at 19 A.L. R.2d 579, 591.

The statement of the prosecutrix made to the police officer in the circumstances of this case was clearly a part of the res gestae and properly admitted into evidence.

Appellant next asserts that the trial court “committed prejudicial error in denying [his] motion for judgment of acquittal at the close of all the evidence.” In the argument under this point reference is made only to Count II charging an assault with intent to do great bodily harm without malice, and it is claimed that there was no evidence of the alleged intent.

On appeal a motion for judgment of acquittal must be reviewed in the light most favorable to the State, and the State is entitled to all reasonable inferences from the evidence in support of the verdict. State v. Colton, 529 S.W.2d 919 (Mo.App.1975). The prosecutrix testified that appellant beat her with his fists causing the injuries she had when the police officer stopped appellant’s automobile. An assault with intent to do great bodily harm may be committed by the use of the fists. State v. Himmelmann, 399 S.W.2d 58 (Mo.1966); State v. Townsel, 506 S.W.2d 59 (Mo.App.1974). The intent with which an assault is made is an essential element of the offense charged, but it is unusual when there is direct evidence of intent. Ordinarily it must be inferred from the circumstances. State v. Chevlin, 284 S.W.2d 563 (Mo.1955). The nature and extent of the injuries inflicted from an assault is a circumstance relevant and material to the issue of the intent. State v. Duncan, 499 S.W.2d 476 (Mo.1973); State v. Kopf, 481 S.W.2d 7 (Mo.1972). Ordinarily, a person is presumed to have intended the natural and normally expected consequences of his acts, and from the circumstances of this case, particularly the bloody condition of the face and clothing of the prosecutrix and her hysterical condition, a jury reasonably could have found that the assault was committed with an intent to do serious bodily harm.

Appellant next asserts that, the court erred in not requiring the State to elect to submit to the jury the charge of sodomy or the charge of assault, and that by reason of § 556.160, RSMo 1969, it was error to submit both charges. That section provides that “No person shall be convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.” The substance of this statute is that where an offense has been completed, an accused cannot be convicted of either an assault with intent to commit the offense or of an attempt to commit the offense. See for example State v. Baker, 276 S.W.2d 131 (Mo.1955), and State v. Charles, 537 S.W.2d 855 (Mo.App.1976). The statute has no application to the facts of this ease. Here appellant was charged with sodomy and also with an assault to do great bodily harm without malice. He was not charged with an assault with intent to commit or with an attempt to commit sodomy. This point is totally without merit.

For his final point appellant asserts the trial court erred in failing to instruct on common assault. Appellant specifically stated that he was not requesting an instruction on common assault, no objection was made because none was given, and there is no assignment of error in the motion for new trial based on the failure to instruct on common assault. This contention is not preserved for appellate review. However, appellant asserts that by reason of Rule 26.02(6), which requires that whether requested or not, the court shall instruct the jury upon all questions of law necessary for their guidance in returning their verdict, the failure of the court to instruct on common assault constituted plain error within the meaning of Rule 27.20(c).

The evidence on the issue of an assault consisted of the testimony of the prosecu-trix and also the testimony of the arresting officer concerning her appearance. In addition, two photographs of the prosecutrix were shown to the jury, but they have not been filed with this court. Appellant denied he struck the prosecutrix and testified that she obtained her injuries when the automobile struck a guard rail on a bridge. There was no evidence indicating that only a common assault occurred.

While the failure to instruct on the “law arising in the case” under Rule 26.02, may in particular circumstances constitute prejudicial error, State v. Haygood, 411 S.W.2d 230 (Mo.1967), it does not, of itself, result in “manifest injustice or miscarriage of justice” under Rule 27.20(c). State v. Patterson, 443 S.W.2d 104 (Mo. banc 1969). We doubt that an instruction on common assault was required in the circumstances of this case, but assuming it was, in view of the evidence and the total circumstances, the failure to do so could not have resulted in manifest injustice or a miscarriage of justice.

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Richard HARKINS, Appellant, v. STATE of Missouri, Respondent.
    No. 38381.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Application to Transfer Denied Nov. 14, 1977.
    Hayes & Heisler, David M. Johnson, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Robert L. Presson, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Movant Richard Harkins’ petition for a writ of error coram nobis seeks to vacate a 1969 burglary and stealing conviction which was subsequently used to subject him to punishment as a second offender in a 1975 murder charge. The trial court denied relief and movant appeals.

In 1969 movant pleaded guilty to burglary and stealing and was sentenced to concurrent two-year - terms of imprisonment. The sentences were served. In 1975 mov-ant was found guilty of second degree murder. The state pleaded and proved the pri- or burglary and stealing convictions and the court imposed a life sentence under the Second Offender Act.

On June 24, 1976 movant filed a petition for writ of error coram nobis, alleging that in the 1969 burglary and stealing case: (1) he was denied effective assistance of counsel because counsel failed to inform the court the burglarized premises belonged partially to movant’s brother and movant was there with his brother’s permission and (2) he was prevented from stating this permission to police because they beat him “as soon as they arrived and [movant] could not say anything.”

The trial court denied a writ of error coram nobis without a hearing and movant appeals.

The grounds for a writ of error cor-am nobis, like other post-conviction relief, must be timely raised. The grounds mov-ant now assert — the alleged invalidity of his 1969 guilty plea — could and should have been raised in 1975 when pursuant to the 1969 conviction he was charged with murder under the Second Offender Act. Mov-ant did not then challenge his 1969 conviction, either at trial or on appeal.

In Montgomery v. State, 529 S.W.2d 8 [3] (Mo.App.1975) a 1953 guilty plea was the basis for applying the Second Offender Act in a 1961 murder trial, from which movant had appealed without challenge to the 1953 guilty plea. In 1975 Montgomery sought post-conviction relief to challenge the 1953 guilty plea. We denied relief, holding mov-ant’s challenge to the 1953 guilty plea conviction “could and should have been raised on appeal from that conviction.” Montgomery was followed in Arnold v. State, 552 S.W.2d 286 (Mo.App.1977). See also Deckard v. State, 492 S.W.2d 400 [5, 6] (Mo.App.1973) where post-conviction relief was denied movant because he had failed to challenge the prior conviction when tried under the Second Offender Act.

We hold movant waived his challenge to the 1969 conviction by failing in 1975 to challenge his guilty-plea conviction when it was pleaded and tried as part of his 1975 murder charge. His present 1977 motion was untimely and properly denied.

DOWD and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    STATE of Missouri ex rel. Captain Edmund MORAN, Relator (Respondent), v. Theodore D. McNEAL, Edward J. Walsh, Jr., George T. Mehan, Jr., Mrs. John W. Seddon, John H. Poelker, Respondents (Appellants). STATE of Missouri ex rel. Captain Edmund MORAN, Relator (Appellant), v. Theodore D. McNEAL, Edward J. Walsh, Jr., George T. Mehan, Jr., Mrs. John W. Seddon, John H. Poelker, Respondents (Respondents).
    Nos. 38661, 38881.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Lashly, Caruthers, Rava, Thies & Hamel, Albert J. Stephan, Jr., St. Louis, for Theodore McNeal et al.
    London & Greenberg, Lawrence J. Fleming, St. Louis, for State ex rel. Captain Moran.
   SMITH, Judge.

Appellants in 38661 appeal from the action of the trial court in making permanent a writ prohibiting them, as the members of the Board of Police Commissioners of the City of St. Louis, from holding a disciplinary hearing of respondent, a captain in the Police Department. We dissolve the permanent writ. Appellant Moran in 38881, an appeal consolidated with that of appellants, seeks to reverse the action of the trial court dismissing his “Motion for Orders in Protection of the Court’s Jurisdiction” which motion sought to prevent the Board from transferring Moran to other duties. We affirm the order of the trial court finding that such action by the Board was not in violation of the writ of prohibition.

The writ of prohibition issued by the trial court was based solely upon its determination that the members of the Board had formed a prejudgment of Captain Moran’s case. It was in no way based upon any contention, charge or evidence that the Board as an entity was precluded from conducting a hearing, only that all its members were disqualified to hear the case. The petition and the writ issued were directed to the members of the Board. We need not and do not rule on the trial court’s determination of the board members’ prejudice or whether the prohibition issued was proper.

Since the trial court’s order of prohibition the entire membership of the Board has changed. Whatever prejudices may or may not have existed in the old Board based upon individual familiarity with the case, there is no reason to believe such prejudices exist in the present Board. There is therefore no reason for the prohibition to remain in effect. It is dissolved.

We have reviewed the record in respondent’s appeal. Under the scope of our review (Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)) we find the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. There was adequate basis for the court to conclude that respondent’s transfer was simply a normal departmental change and not a punitive action in violation of the prohibition.

The trial court’s writ of prohibition issued in No. 38661 is dissolved.

Judgment in No. 38881 is affirmed.

CLEMENS, P. J., concurs.

DOWD, J., not participating.


author: SWOFFORD, Judge.

text:
    Donald LAYMAN and Diane Layman, Plaintiffs, v. UNIROYAL, INC., Appellant, Third Party Plaintiff, and Cross-Claimant, and Shore Tire Company, Defendant, and Fowler Truck & Tractor Co., Respondent, Defendant, and Cross-Claim Defendant, and International Harvester Company, Respondent, and Third Party Defendant.
    Nos. KCD 27551, 27577 and 28170.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Thomas J. Wheatley, William C. Hopkins II, Gary S. Dyer, Kansas City, for appellant Uniroyal, Inc.
    Robert G. Oberlander, Royce J. Estes, Kansas City, for respondent Fowler Truck & Tractor Co.
    Truman K. Eldridge, Jr., Christopher J. Anderson, Kansas City, for respondent International Harvester Co.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an appeal from an order of the court below dismissing the third party petition of the defendant Uniroyal, Inc. (Uniroyal) filed against International Harvester Company (International) and the cross-claim of Unii’oyal filed against defendant Fowler Truck & Tractor Co. (Fowler) for failure to state claims upon which relief could be granted. After two appeals were lodged in this court purporting to appeal from such order of dismissal, the order was amended in the court below to designate it to be a final judgment, Section 512.020 RSMo 1969, and a third appeal from that amended order was taken by Uniroyal. These appeals are here consolidated. The underlying action from which these proceedings stem remains pending in the court below. In order to place the various parties in their proper roles and positions, a somewhat detailed statement of the facts, as revealed by the various pleadings, is necessary.

The plaintiff, Donald Layman, an employee of International, while in the process of mounting a Gillette agricultural tractor tire was injured when the tire exploded. This tire was manufactured by Uniroyal and placed into the channels of commerce and distributed by Shore Tire Company (Shore). It was sold to International, plaintiff’s employer, by Fowler, as local retailer.

The plaintiffs in the underlying case, Donald Layman and his wife Diane, brought suit against Uniroyal, the manufacturer, Shore, the distributor, and Fowler, the seller, alleging in Count I that the tire in question was manufactured by Uniroyal and placed in trade channels in a defective and unreasonably dangerous condition when being mounted and inflated in a manner which could and was reasonably intended and anticipated; that it was in substantially the same condition when he was injured as when it was manufactured, distributed and sold by the defendants; that as a result of this dangerous condition the tire exploded while he was mounting and inflating it in the manner intended and that as a direct result he received multiple permanent injuries, as detailed in his petition; his ability to work and labor has been impaired resulting in past and future loss of income and he has and will incur medical expenses for care and treatment. This count of his petition is based upon the doctrine of strict liability. Restatement, Torts (Second), Section 402A.

In the alternative, the plaintiff bottoms Count II upon the doctrine of implied warranty, and Count III upon negligence (discussed below). In Count IV, he asks for punitive damages. Coupled with these counts is a cause of action by Diane Layman, his wife, for loss of services.

Fowler, the seller, filed its answer to plaintiffs’ petition in the nature of a general denial.

Uniroyal and Shore filed a joint and separate answer in which they admitted that Uniroyal manufactured the tire in question and that Shore distributed it, generally denied the other allegations of Count I that the tire was defective, and affirmatively pleaded that plaintiff Donald Layman’s injuries were caused by his abnormal handling and use of the tire in a manner not intended. In answer to Count II (warranty) they affirmatively stated that the Gillette tire was merchantable and that the plaintiff’s injuries resulted in his abnormal handling. In answer to Count III (negligence) they admit the manufacture and control of design and inspection of the tire prior to its delivery to Fowler, the direct seller, but deny the allegations of negligence and charge plaintiff Donald Layman generally with contributory negligence.

Thereafter, Uniroyal filed its third party petition against International in which it admitted that it manufactured the Gillette tire in question; that it was “sold and distributed” to Shore; that it was “sold and distributed” by Shore to Fowler; and that Fowler resold the tire to International, plaintiff Donald Layman’s employer.

Uniroyal further alleged that it “customarily” and prior to the sale of tractor tires supplied and distributed “brochures and pamphlets” containing instructions and information as to proper and safe procedures and methods to follow in mounting and inflating the tires; that these instructions were supplied to Shore, the distributor, and, upon information and belief, were in turn supplied to Fowler, the seller. While the pleading does not contain any allegation that these brochures or pamphlets were supplied to International or to plaintiff Donald Layman, Uniroyal alleges that the plaintiff, Donald Layman, “failed and neglected to follow the procedures and methods detailed in the instructions earlier supplied and distributed by Uniroyal to Shore and, on information and belief by Shore to Fowler, and as the proximate result of said neglect and failure, (to follow the instructions) the bead on one of said tires was caused to be broken causing a portion of said tire forcefully to come over the rim of the wheel thereby causing injury to Plaintiff Don Layman.”

Uniroyal further alleged that International and its agents and employees had experience and knowledge as to the proper method and manner to safely mount this tire but that the plaintiff had not received from International instructions with reference thereto nor any caution or warning as to the potential danger involved. It further pleaded that, if it was found that plaintiff Donald Layman’s injuries were caused by the failure to instruct or caution and warn plaintiff as to safe methods for mounting and inflating the tire and the potential dangers incident thereto and a judgment is rendered against Uniroyal “on said basis”, then International is obligated to indemnify and hold Uniroyal harmless because of International’s failure to furnish the plaintiff a safe place to work and to properly instruct and warn him and that such negligence was the “active and primary cause” of the injury and loss and that Uniroyal’s negligence, if any, was “only secondary or inactive” in failing to discover the negligence of International and warn plaintiff. Further, Uniroyal alleges a breach of an implied warranty flowing from International to Uniroyal that it would conduct its business in a safe manner and furnish its employees a safe place to work and to give them proper instructions as to safe methods to use in the handling of tires and warn them of the dangers incident thereto. Further, Uniroyal alleges that International owed it an “independent duty” to do these things.

Uniroyal also filed a separate amended answer and cross-claim against Fowler. The cross-claim, in summary, charges Fowler with negligent failure to properly instruct International or the plaintiff Donald Layman as to the proper and safe method to be employed in the mounting and inflation of the Gillette tire, although Fowler had independent knowledge of this and, upon information and belief, had been given this information as to the tire in question by Shore, the distributor. Upon this basis Uniroyal claims indemnity from Fowler for any liability to the plaintiff Donald Layman imposed upon it.

In answer to this cross-claim, Fowler denies that Shore ever supplied it with any brochures or pamphlets relating to the mounting and inflation of Gillette tires or oral instructions with reference thereto, and denies that it was under any legal duty to Uniroyal to supply the plaintiff Donald Layman, or his employer, International, with any such material or to orally instruct them as to the mounting or inflation of the tire.

It is conceded that the issues raised in Uniroyal’s third party petition and cross-claim are “addressed specifically to the allegations contained in Count III of plaintiffs’ petition”, the negligence count. The specific allegations of negligence contained in Count III of plaintiffs’ petition, in summary, are that Uniroyal (a) negligently designed, manufactured and inspected the Gillette tire; (b) negligently failed to warn plaintiff Donald Layman of the danger of explosion of the tire; (c) negligently failed to provide plaintiff Donald Layman with adequate, safe and necessary mounting and inflation instructions; (d) negligently failed to warn plaintiff Donald Layman that the tire was dangerous and defective when used in the manner and for the purpose anticipated and intended; and (e) negligently failed to warn plaintiff Donald Layman that the tire was defective and dangerous to plaintiff while being inflated and mounted.

Pursuant to motions by International and Fowler, the court below dismissed Uniroyal’s third party petition against International and its cross-claim against Fowler, upon the basis that each failed to state a claim upon which relief could be granted. It is from this order, as amended to designate it a final judgment for the purposes of appeal under Section 512.020 RSMo 1969, that this appeal is taken.

It should be here noted that the above-summarized allegations of negligence in plaintiffs’ petition are also charged against defendants Shore and Fowler. In its cross-claim against Fowler, as above noted, Uniroyal charges that Fowler failed to advise International or its employee, Donald Layman, as to the proper manner or method to safely mount and inflate the Gillette tire nor warn them as to any potential danger incident thereto and thereby breached an independent duty owed by Fowler to International to do so. This, Uniroyal pleads, gives rise to its right to indemnity from Fowler.

In reviewing the action of the trial court in dismissing these pleadings for failure to state a cause of action for indemnity, the factual allegations of the plaintiffs’ petition and of the third party petition and cross-claim of Uniroyal against International and Fowler must be taken as true, and conclusionary allegations ignored. Campbell v. Preston, 379 S.W.2d 557, 560[5] (Mo.1964); Johnson v. California Spray-Chemical Company, 362 S.W.2d 630, 634[3] (Mo.1962). For present purposes the allegations of negligence in plaintiffs’ petition must be accepted as true. Western Cas. and Surety Co. v. Shell Oil Co., 413 S.W.2d 550, 555[1] (Mo.App.1967). In this connection, it is important to note that Uniroyal’s third party petition and cross-claim completely ignore the charge in plaintiffs’ petition, leveled against Uniroyal, Shore and Fowler that:

“(a) They negligently designed, manufactured and inspected the Gillette Tire;”

Coupled with this allegation are several based upon the defendants’ failure to warn, as above noted. Uniroyal claims that these charge it only with passive as opposed to active negligence and therefore it is, at most, only secondarily liable and is entitled to indemnity from International and Fowler, whose active negligence caused plaintiff Donald Layman’s injury. Sometimes the case law has treated the tandem of active-passive negligence as primary-secondary, but all convincing authorities in this state have reached the sound conclusion that generally a person guilty of (or charged with) primary tort negligence cannot seek indemnity from one only secondarily responsible. Neither under binding Missouri decisions (in accord with decisions from other jurisdictions) do concurrent or joint active tort-feasors, having no legal relation to one another, enjoy the right to claim indemnity from the other, Crouch v. Tourtelot, 350 S.W.2d 799, 807[11] (Mo.banc 1961); Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1 (Mo.1960); State v. McLaughlin, 315 S.W.2d 499 (Mo.App.1958).

Certainly here the charge against Uniroyal of negligent design, manufacture and inspection of the tire, the instrument of injury, and placing it in the channels of commerce so that it exploded and injured the ultimate consumer’s employee, was a charge of active primary negligence affording no ground upon which Uniroyal could, by the wildest stretch of legal imagination, claim indemnity from the plaintiff Donald Layman’s employer, International, on the basis that it is charged with only “passive” negligence.

While this charge of negligence is one of active negligence, it is coupled in plaintiffs’ petition with numerous other charges bottomed upon failure to warn or instruct as to safe methods to be employed in the mounting and inflation of the tire, which might be characterized as negative, passive or secondary in nature, if “standing alone”. Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 450[8], 55 A.L.R.2d 516 (1955). However, when coupled with the charge of an affirmative negligent act “it presents facts from which a jury could find active or affirmative negligence”, Cupp v. Montgomery, 408 S.W.2d 353, 357[3] (Mo.App.1966) and thus affords no right of indemnity in this case upon the pleadings. Western Cas. and Surety Co. v. Shell Oil Co., supra.

In connection with the charge in the third party petition that International owed an independent duty to instruct its employee, Layman, as to the safe and proper method to be employed in the mounting and inflation of the tire, it should be again noted that no allegation is made that International or Layman ever were given the instructional brochures or pamphlets on this subject or otherwise instructed by the defendants. Further, for such an independent duty to give rise to a right of indemnity from an employer it must be pleaded (or shown) that it is bottomed upon an express contract or some legal relationship between the parties.

As pointed out above, there is no specific obligation leveled by Uniroyal that International knew of any defective and unsafe condition of the tire and failed to warn or instruct its employee Layman thereof or that Uniroyal had entrusted to International nor that International had assumed any duty of Uniroyal with reference to the design, manufacture or inspection of the tire or that International had negligently failed to perform such duty. Under such circumstances indemnity might be sought from an employer. See, McDonnell Air. Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788 (Mo.1959); Restatement of the Law of Restitution, Section 95 (1937). Under the circumstances and posture of this case not only were the charges of negligence leveled against International passive in nature but the only obligation or duty owed by it with reference to the mounting and inflation of the tire could only be owed to its employee, Layman, and not to Uniroyal.

The court below properly dismissed Uniroyal’s third party petition against International upon the ground that it (considered in the light of plaintiffs’ petition) failed to state a cause of action for indemnity and the court below properly sustained the motion to dismiss.

As to Uniroyal’s cross-claim against Fowler, the same principles above-noted are applicable. Both are charged with primary, positive, active negligence in the design, manufacture and inspection of the tire and thus were charged as joint tort-feasors and no right of indemnity existed between them. There is a further reason why the cross-claim was properly dismissed.

Uniroyal and Fowler, under the pleadings, were in pari delicto and indemnity may not be allowed and is barred as between those standing thus. Crouch v. Tourtelot, supra; Union Electric Company v. Magary, 373 S.W.2d 16, 22[3] (Mo.1963).

Not only are Uniroyal and Fowler charged jointly with the active negligence noted which is alleged to have resulted in plaintiffs’ injury and damage, but the facts pleaded clearly indicate that they were jointly active in placing in the channels of commerce an allegedly unsafe, negligently designed, manufactured and inspected tractor tire which resulted in injury to the ultimate consumer’s employee. Uniroyal, the manufacturer; Shore, the distributor; and, Fowler, the retailer, all were moving factors and cogs in the flow of merchandising, the flow of commerce, with regard to the tire resulting in the ultimate damage to the plaintiff Donald Layman. One could not have functioned toward the end result of their enterprise without the other. They stood in pari delicto, charged with equal fault.

The court below properly dismissed Uniroyal’s cross-claim against Fowler.

Appellant’s Point I A and B and Point II A, B and C, are ruled against it.

Uniroyal for its Point III asserts that the court below erred in dismissing the third party petition and the cross-claim “for the reason that all parties who may have acted culpably contributing to cause plaintiffs’ alleged damages should be required to bear their proportionate and respective burdens.” Simply stated, the appellant seeks the decision of this court which would rescind the long-standing and firmly rooted rule in this state relating to contribution between joint tortfeasors to permit contribution between joint tortfeasors in proportion to their relative fault.

Both the Legislature and the Supreme Court of Missouri have clearly and unequivocally spoken to this subject. Under both the statute, Section 537.060 RSMo 1969, and many cases hold that the right to contribution as between joint tortfeasors does not exist in Missouri except after the rendition of a final joint judgment against them. State v. Dinwiddie, 213 S.W.2d 127, 131[7, 8] (Mo.banc 1948); Crouch v. Tourtelot, 350 S.W.2d 799, 803[7] (Mo.banc 1961), supra, and cases collected in Missouri Digest, Contribution,

This court obviously lacks jurisdiction to annul legislation for the reasons urged or to overrule decisions of the Supreme Court which are binding and authoritative upon all lower tribunals.

Point III of Uniroyal is ruled against it.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    CAMERON MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. Ronda Kay BOWER, William L. Bower, Defendants-Respondents, William C. Trice, Administrator of the Estate of Scott Kendall Stella, Deceased, Carole Stella Anna Weyand, Glen Weyand and Auto-Owners (Mutual) Insurance Company, Lansing, Michigan, Defendants.
    No. KCD 28345.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.
    Scott 0. Wright, Brown, Wright, Will-brand & Simon, Columbia, for plaintiff-appellant.
    David A. Oliver, Oliver & Walker, Columbia, for defendants-respondents Bower.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Plaintiff insurance company sought a declaration that second permittee was not insured under omnibus clause of policy. Trial court found coverage, and plaintiff appeals, raising issues that trial court’s findings are not supported by the evidence and that the court erroneously applied the law concerning implied permissive use. Judgment affirmed. No appeal was perfected from the trial court’s finding that the defendant Auto Owners (Mutual) Insurance Company had excess coverage under the nonowned automobile provisions of its policy.

A statement of the posture of the parties will aid in understanding of the facts, some stipulated by the parties and some from testimony of the parties and witnesses.

Scott Stella was the operator of a car, in which Ronda Bower and Don Kohl were passengers, which was driven off the end of the runway at the Columbia Municipal Airport. Stella was killed and the passengers injured. Ronda Bower, by her father and next friend, brought suit against the estate of Stella for her injuries.

The parties stipulated, “That on October 11, 1971, the defendants Glen Weyand and Anna Weyand were the owners and had title in them to a 1969 Ford Torino automobile. Although this car was jointly owned by these two defendants, the car was used almost exclusively by the defendant Glen Weyand. The defendant Glen Weyand was the minor son of the defendant, Anna Fern Weyand. On October 11, 1971, defendants Anna Fern Weyand and Glen Weyand had a policy of insurance with the plaintiff Cameron Mutual Insurance Company in which both Anna Fern Weyand and Glen Weyand were named insured.

. On the evening of October 11, 1971, the defendant Glen Weyand, Robert Akin and James Hendricks drove to the King’s Food Host, which is located on Business Loop 70 in the City of Columbia, Missouri, across from Hickman High School in the 1969 Ford Torino owned by the defendants Glen Weyand and Anna Fern Weyand. Glen Weyand was driving the 1969 Ford Torino. Shortly after they arrived at King’s Food Host, three girls that the boys knew . . Ronda Bower, Mary Mountjoy and Dana Estill, drove into the same driveway and parked next to them. . , Glen Weyand had been dating Dana Estill some, and Robert Akin had been dating Mary Mountjoy some. These three girls were in a 1969 Dodge which was being driven by Ronda Bower but which belonged to her father. The meeting at King’s Food Host between the three boys and three girls was not prearranged but both parties had felt they would run into each other at the drive-in. The three boys and three girls visited for a short time and for some reason or other, Glen Weyand and Ronda Bower decided to trade cars. In any event, there is no question but that each gave the other permission to drive their respective vehicles. The three girls drove directly from King’s Food Host via Business Loop 70 to the old airport in Glen Weyand’s car with Ronda Bower driving.

Glen Weyand arrived at the airport about an hour after the exchange of cars, and when he got to the airport he learned that Glen Weyand’s car had been driven off of the end of the runway. When the three girls got to the old airport in Glen Weyand’s car, Scott Stella was working on a float in another hanger [sic] at the airport. Don Kohl, who was a good friend of Scott Stella, got into the Weyand automobile with Scott Stella and Ronda Bower. Kohl was sitting on the right-hand side and Ronda Bower was sitting in the middle and Scott Stella was driving. [There is no dispute that Stella was driving with permission of Ronda Bower].

. . . [W]hile Scott Stella was operating the 1969 Ford automobile occupied by Ronda Bower and Don Kohl the vehicle went off of the north end of the north-south runway at the old airport,” causing the injuries upon which the underlying suit was brought.

The plaintiff's policy provision defining the insured which is critical to the issues reads in pertinent' part:

“. . . and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” (Emphasis added).

The evidence as to the circumstances surrounding the exchange of cars was conflicting. Bob Akin testified that he heard Glen give Ronda permission to drive to the airport. He did not hear the specific conversation between them. Dana Estill testified that Glen asked her if she had her driver’s license, and when she replied she did not, he and Ronda exchanged keys to their cars. She did not hear their conversation about the trade and did not hear Glen give instructions other than that they were to meet at the airport. Mary Mountjoy also did not hear the exact conversation about the exchange of cars.

Glen Weyand’s testimony was introduced by way of deposition. He testified that Ronda asked if she could drive his car to the airport, and he agreed as long as Dana accompanied her. He and his friends were to take her car to the airport in about one hour after going to Hendricks’ dormitory. He testified that he told her she must drive directly to the airport. As to the others driving the car, he testified as follows:

“Q. Was there anything said about anyone else driving your car except Ronda Bower that evening?
A. No.
Q. Did you give permission to anyone else to drive it but Ronda Bower?
A. No.”

He later stated:

“Q. When you let Ronda Bower have your car that evening — you’ve said you permitted her to drive your car?
A. Right.
Q. —did you give her any instructions as to whether or not she should permit anyone else to drive that evening?
A. Yes, I told her not to let anyone else drive the car, including Dana Estill or anyone.”

The plaintiff insurance company first challenges the trial court’s finding that the conceded permissive use of the Weyand car was not limited. Upon this record, this issue is a factual one on conflicting evidence. This court reviews such an issue under Rule 73.01 as explicated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). So considered, the record contains ample evidence to support the trial court’s finding that no specific limitation on use by way of others driving was imposed by Weyand. This finding would, of course, depend on the trial court’s findings of credibility to which this court defers.

Plaintiff’s second point is that the trial court erred in not finding that Scott Stella was “operating” the vehicle without the “implied consent” of Weyand. Defendants counter by arguing that the issue is not the “actual operation” of car but its “use” under the specific policy language present in this case. The distinction between the “actual use” language and the wording of “actual operation” has been recognized in the case law. In Allstate Insurance Co. v. Hartford Accident and Indemnity Co., 486 S.W.2d 38, 42 (Mo.App.1972), the court set forth the distinction in the following language:

“‘For the “use” of an automobile by an individual involves its employment for some purpose or object of the user while its “operation ” by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle.’ Thus, as employed in an omnibus clause ‘use’ is a term of much broader scope and application than ‘operate’ or ‘drive,’ and conversely the latter terms are of narrower and more restricted meaning. Although one who operates an automobile obviously uses it, one can use an automobile without operating it.” (Citations and footnotes omitted).

Examination of the extensive citation of authority set forth in Allstate, supra, discloses that in the consideration of an omnibus clause using the terms “use” or “actual use,” the focus is upon the scope of the first permittee’s use of the vehicle while in those cases where the “actual operation” clauses are considered, the thrust is towards the scope of permission as it relates to operation.

The omnibus clause here in question in its operative language applied to those facts would then “include any person while using the automobile . . . providing the actual use ... is with the permission of either” (named insured or spouse).

There can be no doubt Ronda Bower was “using” the automobile. The only evidence on this issue was that it was being used to locate Weyand and accomplish the trade back of the vehicles. Since the location for a re-exchange of cars was lacking in a specific time and place, i. e., the airport, the permission given by Ronda and Weyand to each other implied permission to drive the cars at the airport in order to locate one another to effect a second trade. She specifically said that the trip down the runway was a part of her search for Weyand and her car. She asserted that she thought they had seen him on the runway. If the trial court did not believe the testimony of Weyand that he specifically directed a limitation on “use” by requiring that Ronda Bower’s “use” terminate on her arrival at the airport, then her continued use at the airport was within the general permitted use of Weyand’s car until her own car was returned. Prom what has been said, it is not necessary to reach or decide in this case whether or not the permission granted implied that Scott Stella or anyone be authorized to “operate” the car. What is involved here is the actual use and as the trial court noted, Ronda Bowers was in the car at the time, a fact the trial court found to be significant. Cases cited by the parties involving the evidence which would support an implication of permission to “operate” where the omnibus clause uses the language actual operation are inapposite.

Missouri cases cited which have “actual use” language in the omnibus clause and in which coverage was not found are Nye v. James, 373 S.W.2d 655 (Mo.App.1963); MFA Mutual Insurance Co. v. Alexander, 361 S.W.2d 171 (Mo.App.1962); MFA Insurance Co. v. Lawson, 336 S.W.2d 123 (Mo. App.1960); and Haynes v. Linder, 323 S.W.2d 505 (Mo.App.1959). An examination of the facts in these cases shows that in all but Lawson the original permissive user was not using the vehicle so that the inquiry necessarily required a finding that the original permission permitted an implication of authority in the first permittee to grant authority to another. As to Lawson, it is clearly a case that involved a deviant use.

The last point urged is that the court erred in the application of the law by finding Scott Stella was an insured under the omnibus clause. Cited in support is Lawson. As noted, Lawson is distinguishable because there was plainly a deviation from the permitted use. Here, the evidence was sufficient for the trial court to have found the operation of Weyand’s car was within the permitted “actual use.” So finding the trial court was then authorized under the language of this omnibus clause to find and declare that Scott Stella was “any person while using the automobile” providing the “actual use” is with the permission of the named insured. This is in accord with the great weight of authority in the United States where courts have considered the question of omnibus clauses using the wording “actual use” and where the original permittee is within the vehicle, and the vehicle is being used within the scope of the original permitted use. The authority is collected in Annot., 4 A.L.R.3d 10 (1965). Plaintiff recognizes this general rule but contends Missouri authority is to the contrary. Cited are Lawson, supra, and Allstate v. Hartford, supra. Lawson, as noted, is a case where the use was not within the permission. Allstate v. Hartford is a case in which the omnibus clause required that the “actual operation” be within the permission granted. Omnibus clauses are intended to extend coverage and under the general rules of the construction of insurance contracts, the trial court correctly applied the law. Murphy v. Garrón, supra.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri Corporation, Respondent.
    No. 28479.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Bruce A. Ring, Chief Counsel, State Highway Commission, Jefferson City, Earl H. Schrader, Jr., Asst. Counsel, James R. Sandifar, Kansas City, for appellant.
    Robert D. Youle, Eric T. Swanson, Kansas City, Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, of counsel, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Action in eminent domain to acquire lands owned by Kansas City Southern Railway Company for construction thereon by State Highway Commission of a railroad bridge over Interstate Highway 1-435, as ordered by the Missouri Public Service Commission, in which the landowner claimed damages for both taking and severance. Appeal from judgment for condemnation damages as to and affecting landowner’s realty. The question is whether the landowner has a legal right to recover damages. Affirmed.

Both parties excepted to the commissioners’ award, waived jury trial of their exceptions, and submitted the cause by stipulation:

“This cause is SHC’s condemnation suit against KCSo and affecting KCSo realty for a part of the route and right-of-way for Interstate Highway 1-435, in the vicinity of 76th Street of Kansas City, Missouri, were said street extended; and the intersection of 1-435 and KCSo rail tracks * * * may be referred to as the 76th Street crossing.

“Suit was commenced by filing of Condemnation Petition * * * ■ for plaintiff’s acquisition of easement for right-of-way for location of a dual 36 ft. lane controlled access highway with a separation of grade between said highway and rail tracks, at said 76th Street crossing area. The * * area of KCSo realty imposed with SHC’s permanent highway easement * * * comprises 3.2856 acres * * * ;

“As the proposed construction involved a grade separation between a new highway and existing rail tracks, as required by R.S.Mo. (1959) Sec. 389.640 the SHC had preliminary to this suit applied to the Missouri Public Service Commission * * * for authority therefor * * *.

“Condemnation, as requested by the Petition * * * was entered * * *;

“ * * * and after condemnation was entered * * *, the SHC constructed the overhead grade separation structure at its expense * * *.

“ * * * [t]he PSC * * * issued its ‘ * * * Order,’ * * * that defendant KCSo ‘shall pay 100% of the cost of all future maintenance of the overpass structure.’

“Plaintiff SHC makes no claim * * * of offsetting special benefits * * *.

“Defendant KCSo makes no claim for damages from the disruption of its normal rail operations during the period of construction of 1-435 and said separation bridge, or from the imposition of temporary construction easements * * * or from limitation of access from KCSo’s abutting property to 1-435 * * *. KCSo’s claim for damages in condemnation is based upon the taking of the permanent easement * *.

“Said KCSo realty now is, was at the time of taking * * *, and had been for more than 40 years * * *, used exclusively for the route and right-of-way of an operating interstate railroad system known as ‘The Kansas City Southern Lines’ * * ; that KCSo’s main-line tracks was and is [sic] useful and valuable in its business and required for the operation of its railroad system. * * * as an operating interstate common carrier is under government regulations by the Missouri Public Service Commission as well as by the Interstate Commerce Commission and cannot abandon or change its operating routes (including that of the main line here affected) without their consent and approval.

“Prior to this condemnation and the construction for 1 — 435, defendant’s main-line track was at grade or upon the ground level at the now 76th Street crossing * * *.

“ * * * there had been no street, road or highway crossing the KCSo tracks at or in the vicinity of the now 76th Street crossing; the location involved lies eastward of an undeveloped large area of Swope Park * * * through which streets were not extended.

“After the construction for 1-435 * *, defendant’s main-line rail tracks [single] are located upon an overhead bridge structure over 1-435 at the 76th Street crossing.

"KCSo has now generally the same use, as previously, of its tracks upon the bridge over 1-435 as a route for its railroad operations.

“On the route of 1-435, from Kansas-Missouri State Line at about 105th Street on the south side of Kansas City, Missouri, eastwardly, then northerly and crossing the Missouri River and to the intersection with Routes 1-29 and 1-35 in North Kansas City, new 1-435 crosses and intersects the rail lines of various railroad at numerous locations (having from eight to ten such crossings), all of which are with grade separation. In all instances * * * I — 435 is carried upon the bridge structure over the rail tracks, except only at the KCSo track at the 76th Street crossing * * *.

“Defendant KCSo’s realty, because of its width, location, past and present use and the terraine involved, is specialized one-use realty, no[t] normally sold or bought in the market. It therefore had no normal fair market value at the time of the taking * * *, or in the reasonably foreseeable future.

“Plaintiff SHC agrees that defendant’s witnesses would testify as reviewed * *, in support of defendant’s claim of diminution in value for railroad use of its 3.2855 acres of right-of-way condemned and subjected to a permanent easement for highway purposes, over which * * * defendant’s tracks are permitted to cross on the overhead bridge. While denying that defendant is entitled to any recovery herein, plaintiff SHC expressly stipulates that if defendant has a legal right to recover damages in condemnation herein, then defendant KCSo is entitled to recovery and judgment in the amount of $23,000.00.”

Appellant contends that the court erred in its award of condemnation damages to Kansas City Southern because any burden imposed on the railroad by construction of the 76th Street crossing was the result of a valid exercise of the state’s police power by the Public Service Commission and did not constitute a compensable taking of the railroad’s property. Appellant contends also that the court’s judgment is erroneous for the reason it is an unlawful collateral attack on a final order of the Public Service Commission.

Appellant argues that the judgment permits the railroad to recover as condemnation damages the expense of maintaining the grade separation structure, the cost of which was apportioned to the railroad, and thereby to collaterally attack, circumvent, and nullify the order of the Public Service Commission.

The difficulty and misconception in appellant’s position is demonstrated by its jurisdictional statement that “this is a civil action in which the issue is entitlement of defendant to compensation for the increased expense of maintaining its grade separating structure, the burden of which expense is placed upon defendant by final order of the Missouri Public Service Commission * * *.”

Contrary to the foregoing assertion, the stipulation demonstrates that this is an action in condemnation by the State Highway Commission as opposed to an exercise of police power by the Public Service Commission. There is no question that the Public Service Commission has and exercises police power as the exclusive agency to control railroad crossings and to determine and order, among other things, apportionment of the cost of maintenance of a crossing such as the railroad bridge over 1-435 in this case. § 389.640, RSMo 1969; State ex rel. State Highway Com’n v. Conrad, 310 S.W.2d 871 (Mo.1958); State ex rel. Alton R. Co. v. Public Serv. Com’n, 334 Mo. 995, 70 S.W.2d 57 (1934); State ex rel. Chicago Great Western R. Co. v. Public Serv. Com’n, 330 Mo. 729, 51 S.W.2d 73 (1932); State ex rel. C.R.I. & P. R. Co. v. Public Serv. Com’n, 441 S.W.2d 742 (Mo.App.1969); Liddle v. Thompson, 236 Mo.App. 1071, 162 S.W.2d 614 (1942); Wabash R. Co. v. City of Wellston, 276 S.W.2d 208 (Mo.1955). The police power of the Public Service Commission, however, is not at issue or subjected to collateral attack in this case. Neither is there any issue with respect to the power of the State Highway Commission under the Missouri Constitution, Article VI, Section 29, to construct a highway. What is at issue is the exercise of that power under Missouri Constitution, Article I, Section 26, which requires just compensation for private property taken or damaged for public use by the State Highway Commission.

With respect to the issue, it is beyond dispute that 3.2855 acres of land owned by the Kansas City Southern Railway Company was condemned and taken for public use by the State of Missouri by and through its State Highway Commission; and just compensation for such taking was the constitutional right of the landowner. Both construction by the State Highway Commission of the 1-435 and 76th Street railroad crossing and involvement of the Public Service Commission flowed from the action of SHC in bringing the condemnation suit. The Public Service Commission does not condemn land or construct highways. It only approved the grade separation in question and apportioned the costs of its maintenance pursuant to statutory mandate. That action of the State Highway Commission in this situation is subject to such approval and apportionment by the Public Service Commission is not a basis for depriving the landowner of compensation for taking and damage occasioned by the condemnation and construction. Whatever damage Kansas City Southern suffered by the taking was caused by the condemnation by the State Highway Commission. State ex rel. State Highway Com’n v. Southern Develop. Co., 509 S.W.2d 18, 29-30 (Mo. 1974).

The parties stipulated “that if defendant has a legal right to recover damages in condemnation herein, then defendant KCSo is entitled to recovery and judgment in the amount of $23,000.00.” The landowner’s legal right to recover in this condemnation has been demonstrated, and the court properly awarded the stipulated sum as the landowner’s damages.

Judgment affirmed.

All concur.

      . This order resulted from application of the general rule on maintenance of grade separation structures at highway railway crossings that the user of the upper structure maintains the entire structure unless there are some definite conditions which would compel a different conclusion. See State ex rel. State Hwy. Com’n v. Public Serv. Com’n, 459 S.W.2d 736, 739-740 (Mo.App.1970), involving this particular crossing. See also State ex rel. Alton R. Co. v. Public Serv. Com’n, 334 Mo. 995, 70 S.W.2d 57 (1934); State ex rel. Wabash Ry. Co. v. Public Serv. Com’n, 340 Mo. 225, 100 S.W.2d 522 (1936).

      . With the damages so stipulated, it is not necessary to pass on the elements of damage which the court may consider in such cases. Suffice to observe that assessment of damages for condemnation of special use properties requires application of special rules. See, e. g., State v. Barbeau, 397 S.W.2d 561 (Mo.1965), and State ex rel. State Highway Com’n v. Mount Moriah Cem. Ass’n, 434 S.W.2d 470 (Mo. 1968), dealing with cemetery properties; City of St. Louis v. Union Quarry & Const. Co., 394 S.W.2d 300 (Mo.1965), dealing with a former quarry used as a dump; State ex rel. State Highway Com’n v. Southern Develop. Co., 509 S.W.2d 18 (Mo. 1974), approving a capitalization method where special use property not having normal fair market value is involved; State v. Conrad, 310 S.W.2d 871 (Mo.1958), dealing with taking of a portion of railroad right of way for a crossing and recognizing that the measure of damages is the diminution of value of the property for railroad use. See also 29A C.J.S. Eminent Domain § 164; 18 Am.Jur. Eminent Domain § 269; 4 Nichols on Eminent Domain, 3rd Ed., § 14.247; 2 Lewis, Eminent Domain, 3rd Ed., § 753 (503f).


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant.
    No. KCD 28583.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    As Modified On Court’s Own Motion Oct. 11, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      See also Mo.App., 558 S.W.2d 242; 558 S.W.2d 246.

      Roy W. Brown, John A. Wilson, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury in the Jackson County Circuit Court found Bradford R. Jones guilty of robbery in the first degree with a deadly weapon and assessed his punishment at seven years’ imprisonment. After his motion for new trial was overruled, Jones appealed.

On February 23, 1975, at around 10:30 A.M., two men wearing caps pulled well down on their heads and bandanas covering the lower part of their faces, entered the Reveo Drug Store at 103rd and State Line in Kansas City, Missouri. One of the men stuck a gun in the face of James T. White, a Reveo employee standing near the store checkout counter, and told White: “This is a robbery, get down on the floor.” White complied and the robber emptied the cash register drawers. • White and the robber went to the rear of the store where the second robber had gone after entering the store. There the second robber had encountered Joseph G. Trabón, the pharmacist at the store, put a gun in his face and demanded to know where the narcotics were. Tra-bón opened the case containing narcotics and threw the key on the floor as directed by the robber. White and the first robber reached the rear of the store about that time. White was ordered to lay on the floor and did so. The robbers took “some stuff out of the narcotics cabinets,” a box of insulin and syringes and also money in a cash register and the change drawer. The robbers then left and police were called to the scene. Some $400 to $600 was missing from the store.

White described the first robber as 5'7" or 5'8" tall and weighing around 150 pounds. He said the second robber who went to the rear of the store was somewhat larger than the first. Trabón described the man who accosted him as 5'8" or 5'9" tall, weighing 160 to 170 pounds. Neither could describe facial characteristics of the robbers except that both were white males.

At around 5:00 P.M., March 28, 1975, Gerald Wayne Miller, his wife, Margie, and appellant Bradford R. Jones were arrested by Kansas City police at Miller’s residence. They were taken to police headquarters. Under police questioning, Miller admitted numerous robberies in Missouri and Kansas, including the Reveo robbery, in which he implicated Jones. Typewritten copies, one relating to Missouri offenses and one to the Kansas crimes, of Miller’s statement were prepared around 4:00 A.M., March 29.

Detective VanBuskirk of the Kansas City Police Department, who had participated in the interrogation of Miller, took Jones to an interrogation room at police headquarters at 7:10 A.M., March 29. Jones was given a written Miranda warning form which he read and signed. VanBuskirk began an interrogation in the course of which he mentioned that Miller had made a statement. Jones asked to read Miller’s statement and VanBuskirk permitted him to do so. The statement included information about the Reveo robbery. After he read the statement, Jones asked to see Miller, but the request was denied. Jones told VanBuskirk that he wanted to make a statement, but that he wanted to call his lawyer first. Jones was permitted to call his mother and he asked her to have his attorney, Roy Brown, call him. A short time later, at 9:05 A.M., Brown called and was permitted to talk to Jones. After Brown and Jones had talked, Jones handed the telephone to VanBuskirk and told him that Brown wanted to speak to him. Brown told VanBuskirk that he did not want his client to make any kind of a statement.

After the conversation with Brown ended, VanBuskirk told Jones: “Your attorney don’t want you to say anything. * * * I will take you back upstairs.” At that time and without further interrogation by Van-Buskirk, Jones looked at the Miller statements lying on the desk and said: “What Jerry told you is true.”

Jones was indicted for the Reveo robbery. Prior to trial he filed a motion to suppress the use in evidence of any oral statement allegedly made by the defendant because they “were made without defendant being properly advised of his rights and the presence of his attorney.” The motion also sought suppression of evidence seized at the time of defendant’s arrest on the grounds that his arrest was without authority.

A hearing was held on the motion. All of the evidence was directed toward the suppression of the oral statement to VanBus-kirk. Appellant denied that he made the statement. VanBuskirk testified that he did. The trial court found that defendant “knowingly, understandingly, and voluntarily, made the statement to the effect, ‘What Jerry told you is true.’ ” The court further found that, although defendant was suffering from withdrawal symptoms at the time of the police interrogation, the evidence showed that he was not confused and that he had no “observable mental instability,” and that he was “physically and mentally competent” at the time of the statement.

The court further found that, although defendant’s arrest was illegal, “the statement was not the fruit of an illegal arrest.” The court stated that it “does note and give weight to the absence of outrageous police conduct, the time elapsed from arrest to the making of the statement, and the presence of intervening circumstances.

“The intervening circumstances include the non-talismanic Miranda warning, opportunity to eat, relatively relaxed discussion, defendant’s personal willingness to make a statement, defendant’s call to his mother, the attorney’s call to both defendant and the detective, the termination of the interview, and the making of the statement without a question requiring response. All these intervening circumstances attenuated the taint of the arrest.”

At Jones’ trial, the Reveo employees, White and Trabón, testified concerning the robbery, but neither could identify Jones. Miller testified in detail to the planning and execution of the robbery. He said that he was the man who stopped at the front of the store and Jones the man who first went to the rear. VanBuskirk testified over renewed objection to the remark of Jones and portions of Miller’s statement, dealing with the Reveo offense, were placed in evidence. No evidence was offered by the defendant.

The jury returned a verdict of guilty. After defendant’s motion for new trial was overruled, the court entered judgment and sentence to seven years’ imprisonment in accordance with the jury verdict.

On this appeal, the first point of appellant is that the trial court erred in failing to suppress the use in evidence of his alleged statement to VanBuskirk — “What Jerry told you is true.” Appellant’s attack on the trial court’s ruling is on three grounds:

1. That the court erroneously found that the statement was not the fruit of an illegal arrest.

2. That the statement was the product of illegal interrogation, made, as it was according to the state’s evidence, after Jones had indicated his desire to remain silent.

3. That the statement was not knowingly and voluntarily made because appellant was suffering from narcotics withdrawal symptoms at the time.

It might be questioned whether or not the motion to suppress encompassed these claims, but the trial court did pass upon them and the state makes no contention otherwise except with respect to the third question. Since the questions will all eventually have to be resolved, they will all be considered as if properly presented.

Dealing with the third question first, Detective VanBuskirk testified that he observed withdrawal symptoms while interrogating appellant. “ * * * [H]is whole body would just jerk.” On one or two occasions he asked to go to the bathroom because he was sick at his stomach and VanBuskirk took him to the bathroom. VanBuskirk asked him about his last “fix” and was told that it was either earlier that day or the day before. According to Van-Buskirk, appellant kept “playing down” his withdrawal, saying that “everything was okay.” VanBuskirk described appellant as “very sharp mentally” during the questioning, fully aware of what was going on.

According to Jones, he was in a state of withdrawal, had “cold shivers,” nausea and thirstiness. In response to his counsel’s inquiry: “Being in that condition, tell the Court whether or not you were fully cognizant of everything that was going on around you?” Jones said: “No, I don’t think I was.” He stated that it had been at least 36 hours since he “had had anything.”

On the record this court cannot say that the trial court’s resolution of the issue was erroneous. The trial court considered the presence of withdrawal symptoms, but concluded that, based on evidence as to appellant’s mental condition, his physical condition did not preclude his making a statement which was the “result of a rational intellect and a free will * * *.” State v. Thomas, 522 S.W.2d 74, 76[l-3] (Mo.App. 1975). The case of United States v. Monroe, 397 F.Supp. 726 (D.C.1975), relied upon by appellant, does not require that, as a matter of law, a statement made under circumstances here involved must be held involuntary.

As for the illegal interrogation, the complaint is that the statement was exacted from appellant after he had exercised his right to remain silent. The argument ignores the fact that the statement was not the product of interrogation but was volunteered after VanBuskirk had informed appellant that his right to remain silent would be respected and that the interrogation was at an end. Such circumstances distinguish this case from that of State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975), relied upon by appellant. In Stevenson, the defendant did invoke his right to remain silent but the officer did not indicate that the interrogation would cease. The court in that case noted that “* * * the officers not only failed to respect defendant’s exercise of his rights, but gave him no ground to believe they were going to break off the interrogation. The only inference to be drawn from VanBuskirk’s testimony is that the officers would have stayed in the room with the defendant for an indeterminate length of time, even after his expressed desire to remain silent and consult an attorney.” 523 S.W.2d 351.

In this case, after the conversation with the attorney, VanBuskirk told appellant that the interview was ended and that he would be returned to detention. The circumstances of this case do not involve a “compelling influence” (Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) which destroyed the voluntary character of appellant’s remark. See United States v. Cook, 530 F.2d 145,152-153[10] (7th Cir. 1975).

Appellant’s first complaint about the admissibility of his statement is bottomed upon the decisions in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Those cases require that, when a statement of a defendant follows his illegal arrest, its use in evidence against him depends not only upon satisfaction of safeguards designed to protect the Fifth Amendment privilege against self-incrimination, but also it is required that the statement be “sufficiently an act of free will to purge the primary taint of the unlawful invasion” (WongSun v. United States, 371 U.S. 471 at 486, 83 S.Ct. 407 at 416) of the privilege against illegal arrest as guaranteed by the Fourth Amendment, applicable to the states through the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

In this case the trial court enumerated the factors which it concluded had attenuated the taint of the illegal arrest. Those factors were sufficient to support its conclusion that the appellant’s volunteered statement was “an act of free will” which rendered it admissible in evidence. State v. Johnson, 530 S.W.2d 690, 692-694[1] (Mo. banc 1975). See Commonwealth v. Fielding, 353 N.E.2d 719 (Mass.1976); Muetze v. State, 73 Wisc.2d 117, 243 N.W.2d 393, 399-401[13] (1976).

It is therefore concluded that appellant’s claim of error based upon the trial court’s failure to suppress the use in evidence of his oral statement to Detective VanBuskirk is without merit.

Appellant next contends that the trial court erred in admitting into evidence over his objections testimony of numerous crimes other than the one with which he was charged and for which he was tried.

The charge against appellant was based on the taking by force and violence of $400. Appellant complains that the state was permitted to introduce testimony pertaining to the theft of narcotics, the possession and use of narcotics, the theft of an automobile and numerous other offenses committed by Miller.

The state’s witnesses White, Trabón and Miller all testified concerning the taking of narcotics from the Reveo store, in addition to the money. Appellant’s objections to such testimony was properly overruled because it related to a continuous transaction which was part of the offense charged. State v. Fox, 510 S.W.2d 832, 838[5] (Mo. App.1974); State v. Cox, 508 S.W.2d 716, 723[8] (Mo.App.1974); State v. Morris, 523 S.W.2d 329, 331[4, 5] [6] (Mo.App.1975).

In the examination of Miller, the prosecutor asked him whether Jones was a user of heroin. Miller responded, without objection, that he was. Miller was then asked whether he used heroin. He replied that he did. Then defense counsel objected and asked the court to direct the jury to disregard the statement and for a mistrial. The requests were overruled. There are several answers to appellant’s claim of error in the ruling. In the first place, no objection was made to either the questions or answers regarding appellant’s use of heroin. The questions propounded to Miller with regard to each of them made apparent the nature of the evidence sought, but the questions were not objected to. The motion to strike the answers thereafter came too late to provide a basis for error. State v. Drake, 298 S.W.2d 374, 376[4, 5] (Mo.1957); State v. Peebles, 337 Mo. 973, 87 S.W.2d 167, 168-169[4, 5] (1935). Finally, the trial court’s conclusion that in any event the evidence was admissible under the motive exception to the evidence of other crimes rule (State v. Rand, 496 S.W.2d 30, 32[1, 2] (Mo.App.1973)) has not been shown to have been erroneous.

Miller testified over objection to the theft of an automobile en route to the Rev-eo store in which the two drove to the store and which they used in their departure from the store. This evidence was admissible as part of the common scheme or plan for the robbery. State v. Boyer, 476 S.W.2d 613 (Mo.1972); State v. Johnson, 483 S.W.2d 65, 68[6] (Mo.1972).

In the course of examining Miller, the prosecution, without objection, elicited that Miller had pleaded guilty to robbery in Kansas, to two robbery charges in Missouri and that the state had promised to drop other robbery charges, a car theft charge and two charges of assault. At the conclusion of the testimony, defense counsel moved to strike the testimony on the grounds that, since Miller had testified that he had seen appellant daily for two months before the Reveo robbery, the jury would assume that appellant was also involved in the other offenses for which Miller was charged and therefore Miller’s testimony brought in evidence of other offenses by appellant. However, except possibly for the car theft, referred to above, there was no testimony linking appellant with any of the other offenses with which Miller had been charged. There was no testimony that the offenses occurred during the two or three-month period in which Miller and appellant saw each other daily. There being no evidentiary basis for the assumption upon which the objection was based, the overruling of the belated motion to strike was not error.

Appellant next contends that the trial court erred in permitting VanBuskirk to testify concerning the statement taken from Miller and in permitting the state to offer in evidence the portion of Miller’s statement which related to the Reveo robbery and implicated appellant. The appellant here argues that the trial court’s overruling his objection to such evidence was erroneous because the statements “were self-serving, hearsay and a prejudicial attempt to use an extrajudicial statement to improperly bolster said witness’ testimony.” The witness whose testimony was sought to be bolstered, according to appellant, was Miller.

Appellant relies on the rule, laid down in State v. Kinne, 372 S.W.2d 62 (Mo.1963), and State v. Rippee, 512 S.W.2d 235 (Mo. App.1974), which prohibits the use of an extrajudicial statement by a party not a witness as substantive evidence of the facts to which the statement relates. That is not the rule applicable here. VanBuskirk testified that appellant read the statement of Miller and later said: “What Jerry (Miller) told you is true.” This was an “adoptive admission” which permitted the state to introduce the relevant portions of the statement originally made by another. State v. Cooley, 221 S.W.2d 480, 487[20] (Mo.1949); State v. Roulette, 451 S.W.2d 336 (Mo.1970). The trial court’s ruling was not erroneous.

Appellant next complains of the failure of the trial court to grant a mistrial because, in closing argument, the prosecutor said: “No witness or evidence was presented to refute the state’s case.” Appellant contends that this was a comment on his failure to testify, in violation of federal and state constitutional provisions and § 546.270, RSMo 1969.

In support of his assignment of error, appellant relies upon the dissenting opinion of Judge Seiler in the case of State v. Hutchinson, 458 S.W.2d 553, 559 (Mo. banc 1970). This court, however, is obliged to follow the view of the majority of the Supreme Court in that case. Under the majority decision in that case, the failure of the trial court to grant a mistrial on the grounds here urged was not error. As in Hutchinson, there was not in this case a “direct and certain reference to failure of appellant to testify.” 458 S.W.2d at 556[4]. See State v. Overall, 519 S.W.2d 549 (Mo. App.1975).

Appellant next complains that the trial court erred in preventing his attorney in his argument from arguing the consequences of an illegal arrest as it might affect the voluntariness of the appellant’s statement to VanBuskirk. In his argument, defense counsel stated: “ * * * I can suggest to you that the evidence shows that the arrest of all three of these parties was a total illegal arrest.” The prosecutor objected to the argument on the grounds that there was no evidence before the jury to support that argument. Defense counsel responded that Miller had testified that he was not shown a warrant prior to his arrest. The trial court ruled that argument could be made on that basis but that defense counsel could not argue further that the arrest was illegal. In this court, appellant contends that the trial court’s ruling prevented him from relying upon the illegality of the arrest as a matter for consideration with respect to the voluntariness of his statement.

The objection is without merit for several reasons. In the first place, there was no evidence before the jury as to the basis for appellant’s arrest. Appellant has made no effort to point out any evidence which would have supported the attempted argument. He was permitted to argue the effect of a warrantless arrest and did so. The trial court’s ruling on this issue was not erroneous.

Appellant next complains of the trial court’s remark in the course of voir dire examination of the jury panel.

In the voir dire, defense counsel inquired whether members of the panel had been victims of crime. Seven had responded that they had but said that their experience would not prevent their giving appellant a fair trial. The eighth juror who responded affirmatively had had several criminal offenses involving him or his business and he was excused when he said that he felt that his experiences might cause him to be prejudiced against a person charged with a crime.

At that time the court explained to the jury that “there is a good deal of difference between being against crime, and being able to give a fair and impartial trial to someone who is charged with a crime. * * But a general feeling of being opposed to crime is not inconsistent with being able to give someone who is charged with a crime a fair and impartial trial.”

Defense counsel objected that the court’s remarks were “outside the Court’s permissive (sic) oral instructions” and he moved for discharge of the panel. The motion was overruled. Defense counsel continued this line of questioning. Ten more panel members responded that they or persons close to them had been victims of crime. Nine said that the experience would not prejudice them. A tenth said his would and he was excused.

Appellant here contends that the trial court erred in entering into voir dire with his remarks which were prejudicial to the defendant. He really offers only his conclusion to that effect, unsupported by any authority. He does suggest that MAI-CR 1.02 is the only oral instruction which the court may give the jury panel. No such limitation appears in the comments on use under this instruction. The remarks here have not been shown to have constituted an abuse of the discretionary authority of the trial judge in guiding voir dire examination. State v. Scott, 515 S.W.2d 524 (Mo.1974).

Appellant has offered neither argument nor authority in support of his contention that the trial court erred in failing to strike for cause panel members who stated that they had been victims of criminal acts. His assertion that he had to use eight preemptory challenges to strike panel members “who had stated that they were victims of a crime but after having heard the Court’s remarks stated that they were not prejudiced by the fact that they were the victim of a crime” is not supported by the record. Six of the persons named had been questioned and made such response prior to the trial court’s remarks.

Appellant contends that his motion for a directed verdict of acquittal should have been sustained. He argues that the state failed to prove his connection with the robbery because Miller’s testimony was not corroborated, the description of the Reveo employees of the man alleged to have been appellant was totally different from appellant’s physical characteristics and those persons could not identify appellant as one of the robbers.

Appellant’s argument on this score is based primarily upon the claim that Miller’s statement and testimony were not worthy of belief. He points out that Miller made a deal with the state to testify in return for a promise of leniency and that Miller knew that Jones and Miller’s wife were “carrying on sexual relations.” Appellant argues that he should not, in those circumstances, be convicted on the testimony of Miller alone. Appellant ignores completely the state’s evidence that he agreed that what Miller said in his statement was correct. That evidence is also entitled to consideration and considering that with the other evidence it is obvious that the state made a submissible case against the appellant. Miller’s credibility was for the jury and is not determinable as a question of law. State v. Morris, 518 S.W.2d 79, 81-82[3-5] (Mo.App.1974).

Appellant argues that, although the evidence showed that he was 6' tall and weighed about 200 pounds at the time of the robbery, the victim described the robber, who, according to Miller, was appellant, as 5'8" to 5'9" tall, weighing around 155 pounds. The witness’s testimony was based upon estimates made under circumstances not conducive to accuracy. The testimony did not give rise to such an inconsistency in the state’s evidence as to destroy the sub-missibility of the case. State v. Williams, 515 S.W.2d 544, 549[5] (Mo.1974).

The jury retired to consider its verdict at 4:30 P.M. At 7:30, they returned to the courtroom and advised the coürt that they stood 8 to 4. The court stated that he would give an additional instruction. Defense counsel objected and asked for a mistrial. The objection was overruled and the court gave the “hammer” instruction, MAI-CR 1.10. At 9:30, the jury returned to the courtroom and the foreman announced that they stood 10 to 2 and stated that he had hope of further progress. The jury resumed its deliberation and at 11:05 P.M. a verdict of guilty was returned.

Appellant here contends that the trial court erred in overruling his request for a mistrial and contends that the circumstances show that the final verdict was a compromise; the result of undue coercion by the court’s giving of the “hammer” instruction. The giving of such instruction and refusal to declare a mistrial were matters for the trial court’s discretion. The circumstances here do not demonstrate an abuse of that discretion. State v. Barron, 465 S.W.2d 523, 530[14, 15] (Mo. 1971); State v. Doepke, 536 S.W.2d 950, 951[6] (Mo.App. 1976). Appellant’s speculation that the jury resorted to compromise as a result of the giving of the instruction is nothing more than speculation.

Appellant finally faults the verdict returned by the jury because it failed to designate the place of imprisonment. The form of verdict followed that found in MAI-CR 2.86(a). See State v. Franklin, 379 S.W.2d 526, 527-528[4, 5] (Mo.1964).

Judgment affirmed.

All concur.