text:
    Dorothy JOHNSON, Appellant, v. Opal REEVES, Administratrix of the Estate of Zelma Newman, Appellee.
    Supreme Court of Kentucky.
    Oct. 7, 1977.

      Charles William Arnold, Lexington, for appellant.
    Cecil F. Dunn, Lexington, for appellee.
   JONES, Justice.

This appeal is from a judgment of the circuit court granting Opal Reeves, Admin-istratrix of the estate of Zelma Newman, a summary judgment in which Dorothy Johnson sought to recover for personal services allegedly rendered Zelma Newman who died intestate. The summary judgment was granted on the basis that there was no genuine issue of material fact, and that Opal was entitled to judgment as a matter of law. Dorothy had not verified her claim pursuant to KRS 396.010(2). Dorothy was unhappy with the trial court’s ruling and prosecutes this appeal. The sole issue presented here is the correctness of the trial court’s ruling.

Interrogatories were presented to Dorothy. She was asked what her relationship, if any, was to Mr. Newman. In response she replied, “common-law wife ... I was his wife without a marriage certificate.” She stated that she lived with Newman almost 10 years. A part of that time was in Madison County, Kentucky; and a part was in Fayette County. In addition to asserting that she was Newman’s common-law wife, she stated that she was his housekeeper and business partner. While living in Richmond she worked in Newman’s whiskey store on Friday and Saturday nights, receiving the sum of $50.00 per month, which she referred to as “spending money.” She stated also that she helped Newman develop certain properties. She said she gave him $1200 to pay on a trailer lot. On other occasions she borrowed money which she gave to Newman, and that she bought furniture and “other things.” On being asked what she thought she was owed in the amount of money, she replied, “Well, [Newman] he always promised me that I would get what was . . . what he had. He always told me that because I helped him to make it.” Dorothy recited a number of neighbors who would testify that Newman told them he wanted Dorothy to have what he had. She estimated that Newman’s estate was $80,000. She wanted all of it except $2,000, “because that’s what he had when I met him.” After being asked if she knew that the law in Kentucky does not recognize common-law marriages, she responded in the affirmative. She claims that she wants all of Newman’s estate because of the services she rendered as his housekeeper and his companion. The only basis for that claim, according to Dorothy, was what other people had told her.

At the time of Newman’s death, Dorothy was not living with him. There is nothing in the record to show when they came to a parting of the ways.

The trial court’s order granting summary judgment was based on the grounds that there was no genuine issue of material fact, and that Opal was entitled to judgment as a matter of law because Dorothy had not verified her claim pursuant to KRS 396.-010(2), which states:

“(2) If the claim is not an obligation signed by the decedent or a judgment, it shall also be verified by a person other than the claimant, who shall state in his affidavit that he believes the claim to be just and correct, and give the reasons why he so believes.”

In addition, two other statutes were relied upon in granting summary judgment.

“KRS § 396.020(1) No action shall be brought or recovery had on a claim against a decedent’s estate until demand of payment has been made of the personal representative, accompanied by the required affidavit; provided That such demand need not be made if the personal representative of the decedent be a nonresident of this state or shall have been absent therefrom four (4) months.
KRS § 396.025 All claims against a decedent’s estate which arose before the death of the decedent, excluding claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless proven as required by law and as follows:
(1) Within one (1) year after the date of the appointment of the personal representative; (2) If no personal representative is appointed, within three (3) years after decedent’s death.”

Dorothy argues that Opal Reeves, as ad-ministratrix of the estate of Zelma Newman, did not object to lack of verification and demand in a timely manner. For that reason, she contends that the objection is waived. She supports that argument by citing Maupin v. Maupin, 261 Ky. 312, 87 S.W.2d 629 (1935), and four other cases similar in nature. These cases do not support Dorothy’s argument. They are distinguishable from the facts in this case.

Dorothy places great emphasis on the fact that the issue of verification was not raised by Opal Reeves until she filed an amended answer. However, if the amended answer was the first time the issue was raised (and it was not), Opal followed proper procedure. The defense was not waived. A party may amend his pleading at any time, . . by leave of court or by written consent of the adverse party; and leave shall be freely given when justice is required.” CR 15.01.

Dorothy failed to submit proper verification of the claim by affidavit of a third party. Her counsel did submit his own affidavit stating the nature of Dorothy’s claim. In the affidavit he also stated that after it was signed it was sent with a demand letter to Opal stating the nature of the claim and the request for the relief sought. However, this affidavit did not satisfy the mandate of KRS 396.010(2), which requires verification by a third party.

This court is of the opinion that the trial court was correct in sustaining Opal’s motion for summary judgment. Dorothy’s argument of waiver is of no avail under these circumstances.

Accordingly, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: STERNBERG, Justice.

license: Public Domain

text:
    Ronald L. COY, Appellant, v. Tommy HARDIN et al., Appellees. Ronald L. COY, Appellant, v. Kenny HARDIN et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 7, 1977.

      Gene R. Osselmeier, Shepherdsville, for appellant.
    Mark E. Edison, Shepherdsville, for ap-pellees.
   STERNBERG, Justice.

Appellant Ronald L. Coy brought suit against Thomas Hardin, a Shepherdsville policeman, and the surety on his official bond, Buckeye Union Insurance Company, seeking damages for an alleged assault and battery committed upon appellant in the course of his arrest by Officer Hardin. A similar suit was brought against Officer Kenny Hardin, who also participated in the arrest and the alleged assault and battery. Likewise, Kenny Hardin was bonded by the Buckeye Union Insurance Company, an Ohio corporation. Following the dismissal of both suits by the trial court, they were consolidated on appeal. •

On October 10, 1973, the two officers arrested appellant in Bullitt County, Kentucky. An action on Officer Thomas Hardin’s official bond was filed by appellant on May 3, 1975, and the complaint against Officer Kenny Hardin and his surety was filed July 16, 1975. On October 10, 1975, the trial court entered separate orders dismissing both suits on the grounds that the actions were not commenced with in the time period prescribed by KRS 413.140.

On this appeal appellant contends that the trial court applied the wrong statute of limitations to the instant causes of action. He maintains that the suits were governed either by KRS 413.120(2), 413.120(7), or KRS 413.090(3).

It is the opinion of this court that the applicable statute of limitations is KRS 413.090. The police officers were sued upon their official bonds. That official bond is specifically required by KRS 95.750 to cover a policeman’s tortious act of “unnecessary or cruel treating or assault in making an arrest.” KRS 413.090 allows fifteen years for the bringing of an action “upon the official bond of a sheriff, marshal, clerk, constable or any other public officer *

In Hill v. Ragland, 114 Ky. 209, 70 S.W. 634 (1902), a sheriff was sued on his official bond for wrongfully levying upon the plaintiff’s property. The sheriff contended that his actions constituted a tort and the statute of limitations pertaining to torts precluded the bringing of the plaintiff’s suit. The court rejected his contention, writing as follows:

“ * * * That the official bond of the sheriff covers his tortious act in levying a writ upon the property of a stranger to the suit, and entitled the owner to recover his damages against the official’s bondsmen, is no longer an open question. * * * In that state of case the action is upon the bond; the breach being the wrongful seizure of the stranger’s goods under process, which made the act an official one, instead of a personal trespass. The act of making the wrongful seizure was a breach of the covenant of the bond ‘to well and faithfully perform the duties of his office,’ and gave a right of action that instant against the sheriff and his sureties.
* * * We cannot conceive how an action against a sheriff for a wrongful act done by him under color and by virtue of his office, acting under a writ which by law he was permitted and authorized to execute, can be other than a breach of his bond. He acts only in virtue of the authority given him by law, and then only because of, and always under, his official bond. The very purpose of requiring it was to protect the public against the officer’s wrongful acts as such, whether of omission or commission. * * *"

The court, in Hill v. Ragland, supra, concluded that the statute of limitations pertaining to torts did not apply and that the action against the sheriff could be brought within fifteen years of the wrongful act.

The same rationale applies to the subject actions. Appellant brought his actions upon the official bonds of the appellees. Those official bonds are specifically required by KRS 95.750 to cover unnecessary assaults in making arrests. The applicable statute of limitations is, therefore, KRS 413.090.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: HAYES, Judge.

text:
    Dr. Glenn Ray BAKER, Dr. Bruce Barton, Dr. Don Barton, Dr. C. William Briscoe, Dr. W. M. Buttermore, Dr. Frank Catron, Dr. Lee Durham, Dr. William D. Hacker, Dr. H. A. Hamilton, Dr. Jack Hollins, Dr. James Jackson, Dr. M. Jorjani, Dr. Leslie Karr, Dr. Jean M. Mackay, Dr. Raymond Ohler, Dr. Richard Park, Dr. Jagdish Patil, Dr. E. G. Prewitt, Dr. B. E. Sanderlin, Appellants, v. The CITY OF CORBIN, C. A. Martin, Elmer Wilson, Dan Marcum, Harold Helton, and R. C. Miller, Appellees.
    Court of Appeals of Kentucky.
    Sept. 30, 1977.

      Allen C. Trimble, Forcht & Trimble, Cor-bin, for appellants.
    Samuel S. Cannon, Corbin, for appellees.
    Before HAYES, HOGGE and LESTER, JJ.
   HAYES, Judge.

By an ordinance enacted on April 5,1976, appellees, the City Commissioners of Cor-bin, increased the license fees paid by appellants, practicing physicians in Corbin. Appellants, thereafter, filed suit in Whitley Circuit Court seeking to invalidate this ordinance. The lower court upheld its validity, and that decision gave rise to this appeal.

Corbin City Ordinance No. 2895 raised fees for most occupations. The occupations were divided into classes with different fees for each. The increase, however, was not the same for all occupations. Although the average increase was between 20% and 40%, appellants’ fees and those of other professions were increased 100%. Since their fees were increased more than other occupations, appellants contend that this action was arbitrary and not uniform, and as such, the ordinance violates § 2 and § 171 of the Kentucky Constitution.

License fees are authorized under § 181 of the Kentucky Constitution which provides the following:

. . . The General Assembly may, by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations and professions, or a special or excise tax; and may, by general laws, delegate the power to counties, towns, cities and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions . . .

By enacting KRS 92.280(2), the legislature has delegated this licensing power to cities of the second to sixth class.

The exercise of this power, however, is subject to certain requirements. As stated in Beavers v. City of Williamsburg, 306 Ky. 201, 206 S.W.2d 938 (1948), those requirements are as follows:

It is correctly stated by appellants that for the purpose of taxation, particularly taxation of occupations and businesses, classification must be based on reasonable distinction, uniform as to the class, and not excessive, arbitrary or prohibitive. Link v. Commonwealth, 205 Ky. 243, 265 S.W. 804.

The basis for these requirements is found in § 2 and § 171 of the Kentucky Constitution. Although this case involves an increase of a license fee rather than the initial imposition of that fee, the same requirements must be met. It is the opinion of this court that those requirements have been satisfied.

Generally, the reasonableness of the distinctions made is a matter within the discretion of the taxing body, Beavers v. City of Williamsburg, supra. Appellants, however, contend that there is no rational basis for the distinction in this case. There is nothing in the record to indicate the reason for the distinction. Appellants present a reason which they consider to be the basis, but this court cannot consider it since no evidence is present to substantiate their claim. This matter, therefore, is more properly within the discretion of the appel-lees. A more thorough examination of the distinction is not required, since the ordinance in question did not create a special class for the purpose of imposing an additional tax burden as was the case in City of Lexington v. Motel Developers Inc., Ky., 465 S.W.2d 253 (1971).

Although the amount of increase was not uniform as to all classes, this is not the test to be applied. The requirement which is set forth above, is that the tax be uniformly applied to all members of the class, Hager, State Auditor v. Walker, 128 Ky. 1, 107 S.W. 254 (1908). In the present case that requirement has been met since it applies to all members of appellants’ profession.

In examining the excessiveness of a tax, the following test, which is set out in Beavers v. City of Williamsburg, is to be applied:

The reasonableness, the validity of a taxing ordinance is to be measured not by the effect on any one individual, but by the effect on those of a class engaged in the same occupation or business sought to be subject to the tax. The test is whether the tax bears so heavily on a class, not isolated and exceptional individuals, as to be excessive.
* * * * * *
Ordinarily the reasonableness of a taxing ordinance lies with the taxing body, and we cannot inquire into reasons for its passage or interfere with that body’s discretion, subject to the limitation that we may determine whether or not the tax imposed is so excessive as to be confiscatory or prohibitory .

There is nothing in the record before this court which would indicate that this increase is “so excessive as to be confiscatory or prohibitory”. The judgment, therefore, is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    James Henry OWSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1977.

      Jack Emory Farley, Public Defender, Com. of Kentucky, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmaeher, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOWERTON, GANT and HAYES, JJ.
   HOWERTON, Judge.

Appellant was convicted of selling alcoholic beverages in a local option territory in violation of KRS 242.230. His indictment recited two prior convictions for the same offense for purposes of enhancement of penalty as provided for in the statute.

During the course of the trial, the two prior convictions were stipulated and the notations of those convictions from the appropriate order books were read into the record. Appellant now seeks to have his conviction reversed, arguing that the Commonwealth did not meet its burden of proving the two prior convictions. Based upon the record presented to us, we do not see how justice can be served by reversing the conviction.

In order to sustain a conviction under the enhancement provisions of KRS 242.230, the burden is on the Commonwealth to prove that the prior crimes and the one with which appellant is now charged were committed successively after each conviction. In interpreting the old habitual criminal statute, Section 1130, in Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728, 729 (1939) the Court of Appeals held that:

[I]t is the commission of the second felony after conviction for the first, and the commission of the third felony after conviction of the second that is deemed to make the defendant an incorrigible. The indictment, the evidence, and the instructions should make that status clear, [citing cases].

The reasoning of the Court in Coleman was applied more recently in Etherton v. Commonwealth, Ky., 335 S.W.2d 899 (1960) wherein the judgment of conviction under the Habitual Criminal Act was reversed for failure to follow the procedure outlined in Coleman. However, the instant case does not present the problem which Etherton presented. Therein, the appellant had stipulated two prior convictions but had not stipulated the fact that the commission of the second felony was after the conviction for the first, and the commission of the third felony after conviction of the second. That issue is not before us in this case because the second conviction, recited for the purpose of enhancement of penalty, was itself an earlier conviction under the enhancement of penalty provision for a third offense. Therefore, the determination that the prior convictions and criminal acts were successive had already been made at a prior trial and proof of the prior trial resulting in conviction was sufficient to meet the requirements of Coleman. As the recitation from the order book shows, this is indeed, at least, appellant’s fourth conviction for the same offense.

The judgment of the trial court is affirmed.

All concur.


text:
    BOARD OF EDUCATION OF RUSSELL COUNTY, J. D. Melson, Arlus Chumbley, Rodney Snow, Scott Pierce, and Gary McQueary, Appellants, v. Melvin GARNER, and Ronald Chumbley, Appellees.
    Court of Appeals of Kentucky.
    Sept. 30, 1977.
    Jack B. Miller, W. Elijah Coffey, Jamestown, for appellants.
    Arthur L. Brooks, Jr., Brooks & Sullivan, Lexington, Robert L. Bertram, Jamestown, for appellees.
    Before HAYES, HOGGE and LESTER, JJ.
   HAYES, Judge.

This appeal arises out of a judgment of the Russell Circuit Court which held that appellants, the Russell County Board of Education and its members, had exceeded their authority in reducing the salary of appellee, Melvin Garner, without the recommendation of the superintendent. As a result of this action, the court awarded Garner $2,148.00 and declared that Garner was not to be reduced in salary for the 1976-1977 school year. Appellants contend that their actions were proper and legal. This court, however, disagrees and affirms the judgment of the trial court.

On May 13, 1976, Garner was notified that his responsibilities as Math and Science Coordinator had been abolished and accordingly he would be reduced in salary. Although the board states that Garner was not officially hired in such a capacity, he performed tasks in addition to his teaching at an increased rate of compensation for two years prior to this notice. The action of the board was done without the recommendation of the superintendent, Ronald Chumbley. Garner, therefore, filed suit seeking a declaration of rights.

Appellants, thereafter, counterclaimed for the additional salary received by Garner while he served as Math and Science Coordinator. In addition, appellants filed a third party action against appellee, Chumb-ley, for his actions in hiring Garner as a coordinator.

After proof was taken, the trial court entered its findings of fact and conclusions of law. Among those conclusions were the following which are summarized by this court:

(1) The board could properly eliminate the position of Math and Science Coordinator, KRS 160.290.
(2) The board was estopped to deny that Garner had been hired as the Math and Science Coordinator.
(3) The board lacked authority to reduce Garner’s salary in the absence of a recommendation of the superintendent, KRS 161.760(2).

It is these last two conclusions which are the basis for this appeal.

In examining the findings of the trial court, this court must follow the guidelines of CR 52.01. That rule requires that “. . . Findings of fact shall not be set aside unless clearly erroneous . . . .” In view of the fact that appellants approved Garner’s contract of eleven (11) months rather than the normal nine and one-fourth (9¼) months and approved his increased salary, it was entirely proper for the trial court to find that the board was aware or should have been aware of Garner’s position. In addition, it was not erroneous for the trial court to find that appellants had reduced Garner’s salary without Chumbley’s recommendation since such was clearly evident from the record.

KRS 161.760(2) provides the following: “Upon recommendation of the superintendent and approval of the board of education, reduction of responsibility for a teacher may be accompanied by a corresponding reduction in salary . . . .” In the present case, it was not denied that the board failed to follow this requirement. The trial court, therefore, correctly concluded that the action of the board was “arbitrary, capricious and void”.

Judgment affirmed.

All concur.


author: WEIER, Judge.

text:
    James Donald TOLLISON, Appellant, v. STATE of Missouri, Respondent.
    No. 37940.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 23, 1977.

      John Rueseler, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean and W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, for respondent.
   WEIER, Judge.

On February 3,1975, James Donald Tolli-son was sentenced to ten years imprisonment after a trial in which he had been convicted of the illegal possession of a controlled substance. He did not appeal his conviction. On November 21, 1975, however, Tollison filed a motion to vacate, set aside or correct his sentence under Rule 27.26.The State moved to dismiss the Rule 27.26 motion without an evidentiary hearing on the ground that it failed to state facts upon which relief could be granted. After a hearing on the State’s motion to dismiss, the circuit court sustained the State’s motion and dismissed Tollison’s motion without an evidentiary hearing. Tolli-son appealed his dismissal as being clearly erroneous.

Appellant’s Rule 27.26 motion contained two grounds for relief. One was that Tolli-son had been denied effective assistance of counsel at his trial for possession of drugs because his lawyer had failed to file a motion to suppress the drugs as the product of an illegal arrest and search. The other ground for relief was that the appellant had not knowingly and voluntarily waived his right to appeal his conviction. The reasons cited by the lower court for dismissing Tol-lison’s motion were that he had alleged conclusions and not facts, that he had not alleged that his attorney refused his request to file an appeal, and that he had not alleged that he discussed with his attorney the filing of a motion to suppress. The court said that as a result of these deficiencies, the appellant’s motion did not state facts sufficient for the granting of relief and could be dismissed without an eviden-tiary hearing.

A hearing must be held on a motion to vacate, set aside or correct a sentence “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Rule 27.26(e). A motion is sufficient to warrant a hearing only if it alleges facts, not conclusions, which if true, warrant relief, if its allegations are not refuted by the files and records of the case, and if the matters complained of caused prejudice to the prisoner. Haliburton v. State, 546 S.W.2d 771, 773[1] (Mo.App.1977); Voegtlin v. State, 546 S.W.2d 40, 41[4] (Mo.App.1977). The burden is on movant to state the facts upon which he bases his claim of ineffective assistance of counsel. Wimberly v. State, 549 S.W.2d 101, 103[3] (Mo.App.1977).

Obviously, the lower court felt that appellant’s motion did not meet the requirement that its factual allegations warranted the granting of relief. Even if this basis for denying relief was not correct, however, we must affirm the lower court’s judgment if sustainable for another reason. State v. Kimes, 415 S.W.2d 814, 815[2] (Mo.1967). Thus if appellant’s motion did not meet one of the other requirements, we must affirm its dismissal. Moreover, the lower court’s judgment must be sustained unless clearly erroneous. Rule 27.26(j); Coleman v. State, 542 S.W.2d 53, 54[2] (Mo.App.1976).

There was no error in the trial court’s dismissal of that part of appellant’s motion concerned with his waiver of his right to appeal. His allegation on this point said merely “[m]ovant was denied his constitutional right to a review of his conviction by the Missouri Appellate Court in that the movant did not knowingly, intelligently and wantingly waive his right to his appeal of right.” The “facts” supporting this allegation were that “[m]ovant will testify that he did not knowingly waive his right to an appeal.” There were no actual facts alleged to support these conclusory statements. And so that portion of the appellant’s motion was properly dismissed.

That part of the motion having to do with ineffective assistance of counsel did not, however, consist of mere conclusions. There were specific factual allegations made. The pertinent part of the motion read:

“(a) The movant will testify that he was arrested by the police and they stated that he was driving while drunk; that he was taken to the police station and subjected to a breath test; that the test proved that he had not been drinking; that he was told by the police that they would book him for driving while under the influence of drugs.
(b) Movant will further testify that he was then searched (after he had been proven not under the influence of alch-ohol), and as a result of the search the police found the complained about ‘drugs’ or controlled Substance.
(e) Movant will testify that his lawyer did not file a motion to suppress and did not advise the movant that such action was illegal and that movant had a remedy at law to file a motion to suppress,
(d) Movant will testify . . . that he had no knowledge that the arrest and subsequent search was illegal; that he was definately shown not under the influence of alchohol; that he was definately held for no reason after the test showed that he had not been drinking.”

The lower court apparently felt this part of the motion was defective for lack of an allegation that appellant had discussed with his attorney the filing of a motion to suppress. Such a discussion with one’s attorney has been held necessary when there has been an allegation the attorney failed to use a defense of which only his client could be aware. Compare Robinson v. State, 454 S.W.2d 930, 933[7-8] (Mo.1970) and Floyd v. State, 518 S.W.2d 700, 704 (Mo.App.1975) with Thomas v. State, 516 S.W.2d 761, 766-67 (Mo.App.1974).

Here, however, the appellant alleged he did not know his arrest and the search were illegal. The legality of arrests and searches is not a topic which a layman should be expected to know and bring up in conferences with his attorney. More likely, it is something an attorney should ask about in order to fulfill his duty to “make reasonable investigation of the facts and of the applicable law ‘to learn of readily available facts which might have afforded his client a legitimate justiciable defense.’ ” Jackson v. State, 465 S.W.2d 642, 645[1] (Mo.1971). We need not decide, however, whether it is necessary to allege that the movant discussed with his attorney the filing of a motion to suppress for there is another reason the motion was lacking.

By his allegations in his Rule 27.26 motion, movant does not carry his burden to allege facts which if true would demonstrate and prove that the failure of counsel to file a motion to suppress the evidence (here the drugs found on his person) caused prejudice to him. There could not, of course, be a finding that movant did not receive effective assistance if the filing of a motion to suppress by his attorney would not have been useful under the facts as alleged by appellant. Robinson v. State, supra at 932[4]. Appellant alleged that he was arrested for drunken driving, was given a test showing he was not drunk, was kept under arrest, not for driving while drunk, but rather for driving while under the influence of drugs, and was then searched for drugs. He thus fails to allege sufficient facts to show that a motion to suppress would have been sustained. He does not allege facts to show the police had no probable cause to arrest him initially or keep him under arrest.

Factual allegations showing lack of probable cause to arrest were necessary for this Rule 27.26 motion. This motion is a collateral civil attack on a criminal judgment. Winston v. State, 533 S.W.2d 709, 712-13[1] (Mo.App.1976); Layton v. State, 500 S.W.2d 267, 269[4] (Mo.App.1978). In civil proceedings attacking judgments, there is a presumption both that the judgment itself is valid and that the means used to obtain it are regular. Gomez v. Gomez, 336 S.W.2d 656, 660[8] (Mo. banc 1960); Colorado Milling & Elevator Co. v. Rolla Wholesale Grocery Co., 102 S.W.2d 681, 682[4] (Mo.App.1937). This presumption also prevails as to the validity of criminal proceedings. State v. Allison, 466 S.W.2d 712, 713-14 (Mo.1971). There is a presumption here that the appellant’s arrest was lawful. The existence of such a presumption in Rule 27.26 actions is further demonstrated by the inability of a prisoner to attack directly in such an action his allegedly illegal arrest and search. Collins v. State, 454 S.W.2d 917, 918[1] (Mo.1970); McCrary v. State, 529 S.W.2d 467, 470[3] (Mo.App.1975); Jackson v. State, 512 S.W.2d 249, 252[1] (Mo.App.1974). He may only bring it up to show ineffective assistance of counsel. And the failure of counsel to file a motion to suppress does not of itself constitute ineffective assistance of counsel. Arnold v. State, 545 S.W.2d 682, 684[4] (Mo.App.1976). In a Rule 27.26 motion the presumption is that the arrest is lawful, so that movant in order to plead ineffective assistance of counsel by failure to file a motion to suppress must plead lack of probable cause by factual allegations. Since he failed to plead lack of probable cause adequately here, movant failed to allege in his motion that his counsel was prejudicially inadequate for failure to file a motion to suppress. His motion, therefore, was properly dismissed without a hearing by the lower court.

There is a further reason why the motion should be denied. In the brief on appeal his present counsel admits movant was arrested “when his car was spotted weaving and not under control on a highway.” Furthermore, in his argument on the motion before the lower court, counsel stated that the circumstances under which movant was arrested included the facts that he was driving an automobile and it was weaving on the road. To support his assertion that trial counsel failed in his duty to file a motion to suppress he theorizes on appeal that after the breathalyzer test failed to show movant was intoxicated the officers had no further right to search him for any substance which might have caused his erratic driving. Such a motion would have been without merit and counsel cannot be found to be ineffective in the constitutional sense for failing to file a motion to suppress when the facts here conceded demonstrate it could not succeed. Robinson v. State, supra at 932[4].

The judgment is affirmed.

KELLY, P. J., and GUNN, J., concur.


author: STEWART, Judge.

text:
    WIRED MUSIC, INC., a corporation, Plaintiff-Appellant, v. Phil O’BRIEN, Individually, and O’Brien’s Restaurant and Lounge, a corporation, Defendant-Respondent.
    No. 37356.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 30, 1977.

      W. W. Sleater, Clayton, for plaintiff-appellant.
    Lawrence O. Willbrand, St. Louis, for defendant-respondent.
   STEWART, Judge.

This is an action upon a written contract whereby plaintiff was to furnish recorded music to O’Brien’s Restaurant and Lounge, which was operated by defendant, B.O.S. Enterprises, Inc. Plaintiff sued the corporation and Phil O’Brien, the president of the corporation for breach of the agreement to pay for the services. The corporate defendant will be referred to as defendant. The individual defendant will be referred to as O’Brien. This cause originated in the magistrate court where plaintiff had judgment. Defendant appealed, and upon trial, the jury returned a verdict in favor of both defendants. As we read plaintiff’s Points Relied On, they contend that the court erred: (1) in giving defendant’s instruction concerning cancellation of the contract; (2) in failing to direct a verdict for plaintiff; and (3) in excluding documentary evidence.

In stating the facts, we review the evidence in the light most favorable to the prevailing party. Schmid v. Langenberg, 526 S.W.2d 940, 942[1] (Mo.App.1975).

Plaintiff, sometimes referred to as “Muzak,” is in the business of furnishing musical programs to businesses on a 24 hour basis. The music is taped and transmitted by radio signal or by telephone line to its customers. Defendant had formerly subscribed to plaintiff’s service, but after a trial period in 1967, discontinued the services and installed its own system. Defendant had executed a contract similar to the contract involved in this case. Defendant, at that time, advised plaintiff by telephone that it was not satisfied with the programming, and subsequently, the equipment was removed.

In late 1971, a new salesman for plaintiff made a call upon O’Brien and explained that their programming had been changed. The salesman wanted to furnish the service on a trial basis stating that “if [defendant] didn’t like it, they’d take it out.” The salesman delivered a contract in duplicate, dated November 5, 1971, which was left with Mr. O’Brien. Mr. O’Brien signed the contract, as president of the corporation. The salesman returned the following day, picked up both copies of the contract, and took them back to plaintiff for its signature.

By the terms of the printed form contract, plaintiff agreed to furnish musical programs to the corporate defendant’s restaurant for a period of five years at the rate of $29.51 per month. The contract provided that upon “default in any payment . the whole balance payable [under the contract] shall immediately become due and payable and Muzak or its agents shall have the right immediately without notice to enter the premises of the subscriber and to take possession and remove all Muzak equipment with or without due process of law and/or discontinue the service without any liability for damages arising therefrom and without relieving the subscriber of any moneys due or to become due under this Agreement.” In addition, plaintiff would be entitled to recover any court costs and “reasonable attorneys fees.”

Also material to our consideration, the contract provided, by typewritten addition, that the “subscriber [the corporate defendant] may terminate [the] . . . agreement at any time prior to January 5, 1972, by prior written notice sent via registered mail ...”

Plaintiff installed the necessary equipment and commenced furnishing the musical program on November 12, 1971. Plaintiff billed defendant, on November 30,1971, for service for one-half month.

Mr. O’Brien was not satisfied with the type of music that was being played. A few days after Christmas, he called plaintiff’s place of business and asked to speak with Mr. Deason, the manager. Mr. Deason was not in, and O’Brien told the girl who answered the telephone that he was dissatisfied with the music and wanted the system removed. “She said she would take care of it.” Plaintiff did not remove the equipment. Mr. O'Brien called again after the New Year Holiday, but the manager was not in. Mr. O’Brien reached Mr. Dea-son on January 6, at which time Mr. Deason told him that it was too late to cancel. Mr. Deason also told O’Brien that the girl should have told him that cancellation should have been in writing. He further advised Mr. O’Brien that he would send him defendant’s copy of the contract.

Mr. Deason, by letter dated January 19, 1972, sent defendant its copy of the contract.

Defendant made no payment to plaintiff. Plaintiff’s attorney sent a collection letter dated March 31, 1972, billing defendant $1,770.60, the entire cost of the five year contract, and an additional $590.20, as attorney fees.

There is evidence that plaintiff continued to provide services to defendant. On at least two occasions, there were interruptions of service. Plaintiff made the repairs necessary to put the equipment back in service.

We consider first plaintiff’s contention that it was error to give Instruction 4, which was submitted by defendants. The instruction reads:

Your verdict must be for the defendants if you believe:
First, that prior to January 5, 1972, defendant Phil O’Brien orally informed the plaintiff to terminate the Muzak Program Service Agreement, and
Second, the plaintiff accepted said notice to termination, and
Third, said acceptance waived the contractual provision that said notice to termination be in writing.

Initially plaintiff complains that the defense presented was not pleaded. It is to be remembered that this case was tried in the circuit court as an appeal from the magistrate court. It was not incumbent upon defendants to formally plead any affirmative defenses in the magistrate court, or in the circuit court upon appeal. Schroeder v. Drewer, 113 S.W.2d 1045, 1047—48[5] (Mo.App.1938). Rule 41.01, V.A.M.R., providing that Rule 55 V.A.M.R., is not applicable to cases on appeal from the magistrate court, confirms this principle.

Plaintiff next contends the court erred in submitting the instruction because: (1) it did not require the jury to find that the person, to whom Mr. O’Brien spoke on the telephone, was an agent empowered to orally waive the provision relating to notice of termination in writing; and (2) there was no evidence of record upon which to base such a finding. We agree.

While defendants were not required to plead their affirmative defenses, the burden of proof with respect to such defenses is upon defendants. Rimer v. Hubbert, 439 S.W.2d 5, 8[6] (Mo.App.1969). It has long been held that the existence of an agency is a question for the jury. Middleton v. Kansas City, St. Joseph and Coun cil Bluffs Railroad, 62 Mo. 579, 581 (1876). In this case, defendants did not offer any evidence concerning the identity of the girl who answered the telephone, nor any evidence of her authority to waive any provisions of the contract. There was some evidence of authority implied through course of conduct in the past, but this was not pursued and is too vague to rise to the stature of substantial evidence. See Dudley v. Dumont, 526 S.W.2d 839, 844[6-7] (Mo.App.1975). Plaintiff did not admit that the girl, to whom O’Brien spoke with respect to cancellation, was an agent with authority to modify the contract and agree to cancellation. Whether this person was such an agent, was a controverted fact issue that would require a specific finding by the jury. Middleton v. Kansas City, St. Joseph and Council Bluffs Railroad, 62 Mo. at 581. Instruction 4 did not require such a finding, and in this respect, the instruction was erroneous. In this case while one may infer that a person answering a telephone at a business establishment is an employee of that establishment, we can not infer that such person has authority to contract or to waive any of the terms of existing contracts. There is no evidence that this person was an agent of plaintiff for the purposes for which defendants contended. An instruction, which submits an issue which is not supported by the evidence is erroneous. Dickey Co. v. Kanan, 537 S.W.2d 430, 434[7] (Mo.App.1976).

Plaintiff urges that the court erred in failing to grant plaintiff’s motion for direct verdict at the close of the evidence. It has been said that “[Rjarely is a court in a position to direct a verdict in favor of one who has the burden of proof and never where the issues must be decided upon parol evidence . . .” Auffenberg v. Hafley, 457 S.W.2d 929, 934[7] (Mo.App.1970). In this case many issues remain open for consideration. While plaintiff contends that the damages are set by the contract, we note that the contract provided for reasonable attorney’s fees. There was evidence upon this issue, and the defendants did not concede that the amount to which plaintiff’s counsel testified was reasonable. The issue of the individual liability of O’Brien remains a live issue in view of our recent case of Wired Music Inc. v. Great River Steamboat Co., 554 S.W.2d 466 (Saint Louis Dist. Mo.App.1977). There appears to be a question of the amount of credits due to defendant because of interruptions of service in accordance with paragraph 6 of the contract. Thus, we must reverse and remand this cause for a new trial.

We will undertake to discuss one other issue that may again be presented to the trial court. Plaintiff contends that the court erroneously excluded its Exhibit 5, a letter, dated January 18, 1972, written by plaintiff’s salesman to O’Brien. It reads:

“It is a pleasure seeing you again, and I certainly am glad to hear you have no complaints about the Muzak Service.”

Plaintiff argues that the letter was admissible under The Uniform Business Records as Evidence Law, §§ 490.670 and 490.-680, RSMo.1969. No effort was made to qualify this document as having been “made in the regular course of business,” nor do we perceive how it could qualify. Rodenberg v. Nickels, 357 S.W.2d 551, 556[8] (Mo.App.1962). Even if this letter could have qualified as a business record, it was properly excluded as self serving, and thus, inadmissible. Hussey v. Robison, 285 S.W.2d 603, 608 (Mo.1955).

For the reasons herein the judgment of the trial court is reversed and the cause is remanded for a new trial.

McMILLIAN P. J., and RENDLEN, J., concur.

      . O’Brien testified that “both were taken back to be resigned and then one (1) was supposed to be mailed back to me . . . ”

      . The letter read:
      “As we discussed on the phone, here is a copy of your MUZAK Program Service Agreement.
      I have asked Mr. Gampp to be in touch with you to talk over the situation.”


author: ALDEN A. STOCKARD, Special Judge.

text:
    In re the MARRIAGE OF Raymond A. PRENAVO, Respondent and Cross-Appellant, v. Ann Lee PRENAVO, Petitioner and Appellant.
    Nos. 38123, 38223.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 13, 1977.
    William E. Brand, Jr., St. Louis, for petitioner and appellant.
    George D. Johnson, St. Louis, for respondent and cross-appellant.
   ALDEN A. STOCKARD, Special Judge.

Both parties have appealed in this dissolution of marriage proceeding, but neither challenges that part of the decree granting dissolution. The wife contends that the trial court abused its discretion (a) in its division of marital property, (b) in awarding only $200 a month for child support, and (c) in making an inadequate award for attorney’s fees. The husband contends that the trial court erred in awarding any maintenance to the wife. We affirm.

The parties were married on May 3,1952. Two children were born of the marriage; a girl who was age 18 and a boy who was age 12 at the time of the trial. Custody of the boy was awarded to the wife and she was awarded $200 a month for child support. The decree did not include an award of custody and child support for the girl, apparently on the theory she was emancipated. Both parties testified the marriage was irretrievably broken, and the court so found. All the property owned by the parties was accumulated during the marriage.

The court awarded to the husband the following marital property: A lot and cabin at Lake Ozark and a boat and trailer, the interest in a pension fund, some miscellaneous shares of stock, the surrender value of life insurance, a debt due from Jenkins Optical Co., the husband’s share in a special rent account, and three bank accounts. According to the figures in the wife’s brief the net value of this award totaled $32,346.04. The husband’s brief does not specifically set forth the value.

The court awarded to the wife the family home (she lists the net value at $26,500; he lists it in his brief at $17,200 but in a “Financial Statement” filed with the trial court he listed the net value at $25,610.01), household furnishings (she lists the value at $2,500; he lists it at $1,390), an automobile which both valued at $1,500, and the husband’s interest in a lot and building known as 18 Kirkham Industrial Drive in which is located the office of Jenkins Optical Company (she lists the net value at $22,032.27; he lists it at $10,657.58) with the right of the husband to re-purchase this last item of property within 6 years for $35,000, and providing that the rental from this property be applied “to the deed of trust” and “taxes and insurance on said property.” In addition, the court awarded the wife cash in the amount of $3,000. According to the wife’s figures the property awarded to her had a net value of $55,532.27, but according to the husband’s figures the net value was $33,-747.58 or $41,857.59 depending on the net value of the home.

The remaining item of marital property consists of the corporate stock of the Jenkins Optical Company (hereafter Jenkins). In 1962 Mr. Prenavo and Robert Mueller each advanced the sum of $10,000 and purchased all the corporate stock of that company. At the time of trial the only stockholders were Mr. Mueller and Mr. Prenavo, each owning 40 shares. Joseph M. Erger, the bookkeeper and accountant for Jenkins Optical Company testified that the “shareholder’s equity” or the “net book value” as of June 1974, not including the real estate and building, was $232,019.20. However, both the husband and wife testified that the value of the stock in Jenkins owned by Mr. Prenavo was $104,644.74.

After the hearing, but before entry of the decree, the trial court directed that further evidence be taken “with respect to changed financial condition of the parties.” It was developed that on April 2, 1975, an agreement was entered into between Mr. Prena-vo, Mr. Mueller and Jenkins which, among other things, resulted in the following:

a) Mr. Mueller sold to the corporation for $180,000 his 40 shares of stock in Jenkins, $30,000 being paid in cash, and the balance being represented by a promissory note, secured by the pledge of the said 40 shares of stock, to be paid by the corporation over a period of five years with interest on the unpaid balance at 8%.
b) Jenkins bought for $20,000 cash all interest of Mr. Mueller in the building and the land known as 18 Kirkham Industrial Drive.
c) Mr. Prenavo agreed to pay the promissory note given by Jenkins to Mr. Mueller in the event Jenkins did not, and he pledged his 40 shares of stock as security.
d) Until the promissory note is paid Mr. Prenavo is not to receive compensation of more than $25,000 a year from Jenkins, and no additional management personnel may be hired or salaries increased without the permission of Mr. Mueller.

The result of this transaction is that the 40 shares of stock previously owned by Mr. Mueller is to become treasury stock, and Mr. Prenavo will own all the outstanding shares of stock of Jenkins, but it is pledged to secure the payment of the note to Mr. Mueller. Also, Jenkins is now the owner of one-half interest in the building and lot of which the wife was awarded the other one-half interest. Neither party offered any evidence as to how this transaction would affect the value of Mr. Prenavo’s interest in Jenkins. It could not have increased the value of his interest. Jenkins obtained the right to receive as treasury stock the 40 shares previously owned by Mr. Mueller, which the parties agreed had a value of $104,644.74 prior to the transaction, and in turn it paid or obligated itself to pay $180,-000. Without further explanation, this indicates a reduction of $75,355.26 in the total net book value.

We are not concerned with whether this was or was not a wise transaction from the standpoint of Mr. Prenavo. It is understandable that he might have been willing to pay or have the corporation pay, a premium price for Mr. Mueller’s interest in Jenkins and in the lot and building in order to be the sole owner of Jenkins. Also the wife in no way challenges this transaction.

The trial court decreed that the wife should receive “$30,000 cash in lieu of [Mr. Prenavo’s] marital interest in Jenkins Optical Company stock; this sum to be payable $10,000.00 on July 1, 1981, July 1, 1982 and July 1,1983, with interest at the rate of 7% per annum, payable quarterly on unpaid balance, first quarterly interest payment to be paid on May 1, 1976.” The record discloses good reasons why the trial court could have deemed it advisable not to award the wife shares of stock in Jenkins.

We review this case upon both the law and the evidence as in suits of an equitable nature giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). This has been construed to mean that the decree of the trial court “will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

No finding of fact or conclusions of law were requested and none were made. In Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976), the court said the requirement of § 452.330, RSMo Supp.1974, that the court consider all relevant factors in making its allocation of marital property did not require a statement of the reason for its adjudication, but in some cases such a statement, whether requested or not, would be helpful to a reviewing court, and this is such a case. However, all fact issues are deemed found in accord with the result reached. Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977).

The evidence of the value of the items of marital property varies substantially, but the figures submitted by the wife in her brief to this court indicate that the marital property awarded to her, other than cash in lieu of stock in Jenkins, had a value of $32,346.04 more than that awarded to the husband. Figures submitted by the husband indicate it could have been substantially less. On the record before us we cannot arrive at a precise determination of value, and we do not know upon what estimates of value the trial court relied. When we consider separately the value of the interest of the husband in Jenkins as affected by the transaction by which Jenkins is to acquire as treasury stock the 40 shares owned by Mr. Mueller, we find that the transaction resulted in a substantial decrease in the “net book value” of Mr. Pre-navo’s interest, but we do not know exactly how much. Assuming that it was one-half of the excess of the price over the agreed value, the reduction would be more than $37,500, and would reduce the value of Mr. Prenavo’s interest by that amount. When we consider that the division of the marital property other than the stock in Jenkins resulted in the wife receiving substantially more than the husband, and the possible realization of $35,000 from the building and lot as compared to the $22,000 value placed on it by the wife, and the $30,000 to be received with interest in lieu of the Jenkins stock, the division of marital property, while not precisely equal, does not appear to be unreasonably disproportionate. Section 452.330 does not require an equal division but only that it be a just division. Seiner v. Seiner, 552 S.W.2d 54 (Mo.App.1977). We cannot say as a matter of law the division of marital property was unjust, or that it is without support in the evidence, or that it is against the weight of the evidence. Nor can we say as a matter of law, as contended by the wife, that the trial court abused its discretion.

The wife next asserts that the trial court abused its discretion in awarding only $200 a month for the support of her son who was age 12 at the time of trial, and in awarding attorney’s fees only in the amount of $3,500.

The determination of the proper amount to be paid by a father to fulfill his obligation to support his children requires a balancing between the needs of the child and the ability of the father to pay. In re Marriage of Englehardt, 552 S.W.2d 356 (Mo.App.1977). The trial court had before it the evidence of the temporary limitation on the salary of the father, and the obligation on his part to pay to the wife maintenance in the amount of $600 a month and interest on the $30,000 cash allowance in the amount of $175 a month. Under all of the circumstances, and within the scope of our review, we cannot say that as a matter of law the trial court abused its discretion in awarding child support in the amount it did. Of course, upon application a judgment for child support can be modified upon proof of a change of conditions In re Marriage of Cook, 532 S.W.2d 833 (Mo.App.1975).

The trial court decreed that Mr. Pre-navo was “to pay [the wife’s] attorneys * * * $3,500 additional, * * * This clearly implies to us that some previous award for attorney fees was made, but neither party refers to any such award in the argument under this point. Our gratuitous perusal of a certified copy of the file of the Circuit Court, which is not a part of the transcript but which has been deposited with this court, confirms our suspicion as to the reason for the use of the word “additional” in the judgment. On September 10, 1974 the trial court made an award to the wife of “$350.00 as and for attorney’s fees on account.” We do not know how many other awards, if any, were made.

It would be inappropriate, and we decline, to attempt to rule on whether the trial court abused its discretion in making a partial award for attorney fees when we do not know the total amount awarded.

We turn now to the contention of the husband that the trial court erred in awarding any maintenance to the wife because (a) she was awarded sufficient marital assets to enable her to be self-supporting, and (b) she not only failed to prove that she was not able to support herself by appropriate employment, but she refused to seek employment.

The authority to award maintenance is set forth in § 452.335, where it provided that “The court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

We note that the husband does not challenge the amount of the maintenance order in the event that an order for some maintenance was authorized, and although he has a limit on his income from Jenkins he does not contend he is financially unable to pay the amount of maintenance decreed by the trial court.

He itemizes the marital property awarded to the wife, presumably to demonstrate that she does not lack sufficient property to provide for her reasonable needs. He lists the family house and furniture and shows a net value of $18,590, but the deed of trust on the house is in excess of $10,000, and the wife is obligated to make the payments. The house is not income producing property. The wife has a mortgage expense to pay in addition to maintenance, insurance and taxes. He also lists the building and lot known as 18 Kirkham Industrial Drive and shows an equity of $10,657.58. The wife has only a one-half interest in the property, and until a substantial deed of trust is retired she receives little or no income from this property. In addition, for six years it is encumbered with the right of the husband to repurchase it and is not subject to sale by her. The next item listed is a 1971 Ford automobile. It constitutes an expense; it does not produce income. The last item is “cash award, plus interest at 7% per annum, payable quarterly $30,-000.” It is only the interest, not the principal, that is payable quarterly. No part of the $30,000 is to be paid until 1981.

It thus appears that from the property awarded to the wife she has practically no income except the item of interest. There is no contention that she has any other income. It is true that she received $3,000 cash award but her testimony would justify the conclusion that accrued obligations used all or most of that award.

We need not itemize the expenses testified to by the wife for herself and the children, but they totaled over $1,200 a month. Therefore, a finding that the wife does not have sufficient property to provide for her needs is not without support in the evidence, nor is it against the weight of the evidence.

The husband next relies on certain testimony of the wife concerning her attempt to obtain employment as demonstrating that she “refuses to work. ’ The trial court did not draw that conclusion from the testimony and neither do we. In substance she testified that her previous employment was bookkeeping and that she would need to go back to school to “brush up,” but at the time she could not afford to do so. She also stated that she was limited in possible work because her son was 12 years old and she preferred to be home when he returned from school rather than have him running the streets.

We find nothing unreasonable or arbitrary on the part of the wife in placing the welfare of her son above the possible financial burden on the boy’s father to provide maintenance. Also it is not reasonable to expect a woman who has not worked outside the home for over fifteen years to be able to step into employment without some preparation. The husband relies primarily on In re the Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1976). We find that case not to be comparable on its facts, and not to support the husband’s claim.

There was evidence to support the trial court’s conclusion on each of the issues here raised, including the issue of attorney fees which we decline to review. Our review of the evidence produces “no firm belief that the decree or judgment is wrong.” Murphy v. Carrón, supra, 536 S.W.2d at page 32.

The judgment is affirmed.

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

      . The husband owned only a one-half interest in this lot. The bookkeeper of Jenkins Optical Company testified that the “cost” of the building exclusive of the lot was $40,099.43 and that the balance due on the “loan for the building” was $21,857.49. In view of these figures and the right of the husband to repurchase the one-half interest within six years for $35,000, we question whether the value submitted by either party is correct.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Earl Lee HARRIS, Appellant.
    No. 38782.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 13, 1977.
    James A. Cochrane, III, Finch, Bradshaw, Strom & Steele, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Walter 0. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of assault without malice aforethought. The appeal is based on the trial court’s failure to instruct on common assault. We affirm.

The defendant and his brother entered a house where the victim, Robert Carter, was visiting. The defendant’s entry was as an uninvited guest. Without provocation and with only a “nobody move” warning, the defendant approached Carter and struck him in the face with a .32 caliber revolver. As Carter was falling to the floor, defendant’s gun discharged, with a bullet striking Carter in the back. Carter did not see the gun discharge, but two witnesses did. One witness testified that after striking Carter in the face with the gun, the defendant shot Carter in the back “cold-bloodedly” as he lay on the floor. The other witness to the shooting testified that as defendant was commencing to strike Carter once again with the gun, the gun discharged without being aimed; that the gun fired as the defendant was striking at Carter with it a second time.

The jury was instructed on assault with and without malice aforethought, and the jury returned its guilty verdict on assault without malice. Defendant asserts that, although not requested to do so, the trial court should have instructed on § 559.220 RSMo 1969 common assault. We disagree.

True, the trial court is required to instruct on the lesser or included offense of common assault, even though not requested to do so, where the evidence supports the lesser offense. But no such requirement exists if the evidence does not support a submission of common assault, as is the case here. State v. Webb, 518 S.W.2d 317 (Mo.App.1975); State v. Walker, 505 S.W.2d 119 (Mo.App.1973). The undisputed evidence shows that the defendant struck Carter in the face with a lethal weapon. Then, according to the testimony, he either deliberately shot Carter in the back, or the gun went off as he was again about to hit Carter with the gun. The discharge of the gun is not the essential ingredient to the assault charge for which defendant was found guilty. Defendant’s action in intentionally striking Carter in the face with the gun and either willfully shooting him or intentionally striking him again with the weapon are dissonant with common assault. Hence, there is no need for a common assault instruction. There was no evidence of common assault, for defendant’s actions were only those fitting the more serious § 559.180 or § 559.190 crimes of assault— not common assault, which is defined as assault “under such circumstances as not to constitute any other offense herein defined.” § 559.220 RSMo 1969. Defendant’s actions were inconsistent with common assault. State v. Cooksey, 499 S.W.2d 485 (Mo.1973); State v. Bevineau, 460 S.W.2d 683 (Mo.1970); State v. Morris, 523 S.W.2d 329 (Mo.App.1975); State v. McCloud, 522 S.W.2d 631 (Mo.App.1975); State v. Webb, supra; State v. Walker, supra.

Judgment affirmed.

KELLY, P. J., and WEIER, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Clifford JARMON, Defendant-Appellant.
    No. 38679.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 13, 1977.

      James B. Ash well, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted by jury of first degree murder of Avery Donnie Brooks. His appeal raises two points of alleged error: (1) that the trial court erred in failing to declare a mistrial after the prosecutor, in closing argument, referred to the defendant as a “dopehead”; (2) that the testimony of the State’s key witness was unbelievable, and, hence, defendant’s motion for judgment of acquittal should have been granted. We affirm the judgment.

Jefferson Davis Smith was the State’s chief witness. He testified that he saw the defendant shoot Avery Donnie Brooks in the head by means of a sawed-off shotgun.

During closing argument the prosecutor commented to the jury that “one dopehead” (meaning the defendant) had shot another (meaning Brooks) in front of a dope pad. Defendant’s counsel objected and requested that the jury be instructed to disregard the remark. The trial court sustained the objection, instructed the jury to disregard the remark but refused to declare a mistrial.

We first note that the narcotics issue was raised rather extensively during the trial and that an explanation given for the defendant’s feral attack on Brooks was that defendant — as well as others — had been “ripped off” by Brooks in narcotics transactions; that Brooks apparently had exhibited a propensity to mix sugar with the heroin which he was selling.

Of course, a prosecutor should not promiscuously brand a defendant with opprobrious or unbecoming appellations. See State v. Stockbridge, 549 S.W.2d 648 (Mo.App.1977). But not every improper remark forms a basis for a mistrial, and the trial court is vested with substantial discretion in determining whether a mistrial is warranted. In view of the trial court’s prompt action in sustaining defendant’s objection and instructing the jury to disregard the remark, even though not granting a mistrial — particularly in view of the quantity of testimony concerning defendant’s possible drug involvement—there was no abuse of discretion. State v. Pittman, 549 S.W.2d 591 (Mo.App.1977); State v. Washington, 549 S.W.2d 547 (Mo.App.1977); State v. Thomas, 548 S.W.2d 574 (Mo.App.1977); State v. Lacy, 548 S.W.2d 251 (Mo.App.1977); State v. Porter, 538 S.W.2d 888 (Mo.App.1976).

Defendant argues that the testimony of the State’s primary witness — Jefferson Davis Smith — was unworthy of belief due to his past criminal record and criminal charges pending against him; that it was acknowledged that Smith had initially given a statement to the police at variance with his courtroom testimony clearly establishing defendant as Brooks’ murderer.

The jury was constantly reminded in complete detail by both the prosecutor and defendant’s counsel of Smith’s sordid background and of the fact that in his first statement to the police he had stated that he had not seen who had killed Brooks — a complete variance with his trial testimony which totally involved the defendant with the killing. As stated in State v. Burr, 542 S.W.2d 527, 532 (Mo.App.1976):

“The testimony of a single witness, if deemed credible by the jury may be considered sufficient for conviction, although that testimony may be uncertain or inconsistent.”

There is no question that the testimony of Smith, if believed by the jury, was sufficiently substantial to convict defendant as Brooks’ murderer, as he fully described seeing defendant pull the trigger of the shotgun and seeing Brooks fall from the blast to his head. The matter of credibility of Smith’s testimony in this case rested with the jury. The jury believed Smith and resolved any inconsistencies or conflicts in his testimony against defendant, which, of course, is a jury prerogative. We perceive no reason for setting aside the judgment. State v. Roberson, 548 S.W.2d 280 (Mo.App.1977); State v. Sampson, 546 S.W.2d 9 (Mo.App.1976); State v. Peck, 545 S.W.2d 725 (Mo.App.1977); State v. Thomas, 541 S.W.2d 775 (Mo.App.1976). This is true in spite of Smith’s prior criminal record and criminal charges pending against him. Section 491.050 RSMo 1959. See State v. Collett, 526 S.W.2d 920 (Mo.App.1975). Judgment affirmed.

KELLY, P. J., and WEIER, J., concur.


author: McMILLIAN, Presiding Judge.

text:
    Joseph L. WALLACE, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 38003.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 13, 1977.

      Theodore Guberman, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from an order of the circuit court of the City of St. Louis refusing to grant him an evidentiary hearing and assistance of counsel for his Rule 27.26 motion. For reversal, defendant claims that the court should have ordered an evi-dentiary hearing because the “files and records of the case [did not] conclusively show he was entitled to no relief” (27.26(e)), and the trial court should have appointed counsel because his motion presented an issue of fact (27.26(h)). We find no merit in these allegations of error and accordingly affirm.

On October 5, 1971, defendant was convicted by a jury on a charge of murder alleged to have occurred on November 4, 1970, and punishment was assessed at life imprisonment. Defendant appealed and the judgment was affirmed by the Supreme Court of Missouri in State v. Wallace, 504 S.W.2d 67 (Mo.1973).

On January 19, 1976, defendant filed a motion to vacate, set aside or correct under Rule 27.26 claiming that he “was denied a jury of his peers that truly reflected a cross-section of the community in that there was only one Negro on the jury.” The affidavit of the trial judge indicates that of the sixty-six veniremen summoned, twenty-one were blacks and of the forty-seven veniremen selected, four blacks were struck by the defendant’s court-appointed attorney.

To entitle a 27.26 movant to an evi-dentiary hearing, the movant must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the trial. Smith v. State, 513 S.W.2d 407, 411 (Mo. Banc 1974).

Here appellant has failed to plead facts which would entitle him to relief, and therefore is not entitled to an evidentiary hearing. He has alleged that he was “denied a jury of his peers that truly reflected a cross-section of the community” but this allegation alone entitles him to nothing. A defendant has a right to a jury selected from a representative cross-section of persons in the community but this does not mean every jury panel must contain persons from every group. It does mean that there can be no deliberate exclusion of any legally qualified group. State v. Smith, 467 S.W.2d 6, 7 (Mo.1971). A systematic exclusion must be alleged and proved in order to impeach a jury panel on this ground. State v. Mooring, 445 S.W.2d 303, 305 (Mo.1969); State v. Dowe, 432 S.W.2d 272, 275 (Mo.1968); State v. Taggert, 443 S.W.2d 168, 170 (Mo.1969). Defendant must allege that the exclusion of blacks is made in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be with the result that no Negroes ever serve on petit juries. Edwards v. State, 535 S.W.2d 124, 125 (Mo.App.1976), Swain v. Alabama, 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965).

Because defendant alleged only that he was denied a jury which reflected a cross-section of the community and not that the racial composition of his jury was due to a systematic exclusion of blacks, he has failed to plead facts which would entitle him to relief. The defendant’s position on appeal is that he needs an evidentiary hearing to develop evidence of systematic exclusion of blacks. But, the fact remains that he should have properly plead his charge in his 27.26 motion rather than try to remedy his pleading by innuendoes in his appellate brief.

It may appear inequitable to require this precision for pleadings in a pro se motion but our courts have continually done so on 27.26 motions. In Smith v. State, 513 S.W.2d 407 (Mo. Banc 1974), the Missouri Supreme Court held that a defendant’s pro se 27.26 motion that he was denied effective assistance of counsel was insufficient to require an evidentiary hearing because “he [did] not allege what defenses were available,” Smith v. State, supra, at 411. The court took this position despite a strong dissent that it was inequitable to require legal precision from a pro se motion, Smith v. State, supra. In Cloud v. State, 535 S.W.2d 577 (Mo.App.1976), the court rejected the movant’s claim in a 27.26 motion that he was denied effective assistance of counsel because the movant failed to allege that he was prejudiced by the attorney’s action. The court stated, “the ineptly worded pro se motion presents no reasoned legal position, and the factual determination makes it clear none can be presented.” Id. at 578.

Moreover, even if the defendant had worded his motion properly and claimed that “Negroes were systematically excluded from jury panels with the result that no Negroes ever served on petit juries,” the record in this case demonstrates that this is not so. Almost exactly ⅛ of the veniremen summoned were blacks and one black served on the petit jury. Presumably four additional blacks would have served on the petit jury if the defendant had not stricken them. Rule 27.26(e) requires that “unless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, a prompt hearing thereon shall be held.” The evidence in this case of the number of black veniremen who were available for the petit jury clearly disproves any claim that “Blacks are excluded in case after case with the result that no Negroes ever serve on petit juries.” In other words, even if the defendant had properly plead his discrimination charge, the evidence conclusively shows that systematic discrimination was not practiced, and thus, the defendant is not entitled to an evidentiary hearing on this point.

That the record itself rebutted a discrimination charge is the distinguishing factor between this case and past 27.26 cases where the defendant was granted an evi-dentiary hearing to consider his claim of discriminatory jury selection. In these past cases the question was whether the peremptory striking of all blacks by the state on the sole basis of race is a denial of the appellant’s right to a fair trial and the record as it stood, could not rebut this charge. Hall v. State, 470 S.W.2d 473 (Mo.1971); Clark v. State, 465 S.W.2d 557 (Mo.1971); Edwards v. State, 535 S.W.2d 124 (Mo.App.1976). Thus an evidentiary hearing was necessary. Here, however, the evidence would refute any charge of systematic exclusion of blacks.

Defendant also claims that the trial court erred in failing to appoint counsel to assist him in the preparation of his claim. Counsel need not be appointed if the motion does not plead facts which, if true, would entitle the movant to relief. Winston v. State, 533 S.W.2d 709, 714 (Mo.App.1976); Loflin v. State, 492 S.W.2d 770, 773 (Mo. Banc 1973). We have already determined that the defendant failed to meet this test, therefore, the trial court did not err in failing to appoint counsel for the defendant.

Accordingly, judgment is affirmed.

STEWART and REINHARD, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Curtis James TYLER, Defendant-Appellant.
    No. 38158.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 13, 1977.

      Thomas R. Motley, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jeff M. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis on a jury’s verdict finding him guilty of first degree murder in accordance with the felony murder statute § 559.007, RSMo Supp.1975. Defendant was sentenced to life imprisonment. For reversal, the defendant urges the court erred (1) in refusing to instruct the jury on the lesser included offenses of murder second degree and manslaughter; (2) in refusing to declare a mistrial as requested when the state failed to prove the alleged prior felony conviction, and (3) in failing, sua sponte, to give an accomplice instruction. We find no merit in these allegations of error and accordingly, affirm.

The following evidence was introduced by the state to support the conclusion that Curtis Tyler, acting with others, did assault and mortally wound John Hamilton: On March 15, 1975, shortly before the alleged murder, defendant and George Qualls were at Sandra Ware’s home at 4309 St. Louis Avenue. At that time defendant displayed two pistols and he and Qualls indicated that they planned to rob persons residing at 5603 Lotus Avenue, a home where defendant’s half-brother, Calvin Gales (also known as Brett Tyler) resided. Upon arriving at the Lotus Avenue address, Sandra Ware knocked at the door, saying she had a letter for the victim, John Hamilton. Calvin Gales looked out the window, recognized defendant, Qualls and Ware and came to the door. At that time defendant indicated to Calvin Gales an intention to rob John Hamilton and displayed a pistol, as did George Qualls. Calvin Gales then led defendant, Ware and Qualls upstairs to a room where Leonard Gales and John Hamilton were in bed. Defendant then told the men to get up, Hamilton reached for a shotgun, and both Qualls and defendant fired at Hamilton, who was struck. Defendant, Ware and Qualls fled the scene without obtaining any money or property.

During voir dire examination defendant’s attorney referred to a prior conviction which had been plead in the substitute information. The state was subsequently unable to prove the prior conviction. Counsel for defendant moved for a mistrial, and the court denied said motion but instructed the jury to disregard counsel’s remarks concerning the defendant’s prior conviction.

At the trial, Sandra Ware and Calvin Gales testified against the defendant.

We find no merit in the defendant’s first claim of error that the court failed to give instructions on second degree murder and manslaughter. In a felony murder case, instructions as to a lesser offense will not be given unless the evidence warrants a finding that the murder was not committed in the perpetration of or attempt to commit the felony, MAI-CR No. 6.02, caveat “a.” Here, the evidence supports only one conclusion: defendant and his cohort fatally shot John P. Hamilton in their attempt to feloniously rob the residents of 5603 Lotus Avenue.

In reviewing the evidence in this case, we are bound by the well-established rule that “ . . . ‘the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected . . . State v. Parcel, 546 S.W.2d 571, 573 (Mo.App.1977); State v. Papin, 386 S.W.2d 355, 359 (Mo.1965). Sandra Ware, an accomplice in the incident and a witness for the state, testified that before going to the Lotus Avenue residence on the evening of March 15, 1975, the defendant and George Qualls met at her home, displaying two pistols. They next went to a friend of George’s to borrow a car, and there discussed going to the Gales’ residence to rob the people there. Sandra and Calvin Gales testified that once the group arrived at the Gales’ home, defendant, holding a pistol, told Calvin he planned to rob John P. Hamilton. Defendant and Qualls, still holding pistols and with their masks pulled over their faces entered the room shared by John P. Hamilton and Leonard Gales, and told the men to get up. Hamilton then reached for a shotgun and the defendant and Qualls fired at Hamilton, fatally wounding him. Defendant’s behavior during the entire evening is clearly inconsistent with any other conclusion than that they intended to rob the victim, John P. Hamilton. The fact that the defendant fled before recovering money or property does not mitigate the above circumstances showing intent to rob. State v. Fulsom, 534 S.W.2d 72, 74 (Mo.App.1976); State v. Norris, 365 S.W.2d 501, 504 (Mo.1963); State v. Bazadier, 362 S.W.2d 603, 606 (Mo.1962).

Defendant has not shown this court what evidence in this case supports the lesser offense instructions of second degree murder or manslaughter. If his argument is, however, that there was a lack of deliberation, which could reduce the charge to second degree murder, State v. Seals, 515 S.W.2d 481, 486 (Mo.1974), or there was provocation, which could reduce the charge to manslaughter, State v. Clough, 327 Mo. 700, 38 S.W.2d 36 (1931); State v. Weakley, 178 Mo. 413 (1903), 77 S.W. 525, 527, because he shot Hamilton in self defense after Hamilton reached for his shotgun, his argument must fail. Defendant initiated the entire incident by the robbery attempt, and therefore, is responsible for all consequences therefrom, including the fact that the robbery victim may try to protect himself.

Because all of the evidence supports the conclusion that Hamilton was shot in an aborted robbery attempt and because there is no evidence to support lesser offense instructions, the trial court did not err in failing to give the lesser offense instructions.

We also reject the defendant’s second claim of error, that a mistrial should have been declared because of erroneous references to the defendant’s past criminal record. The state, by substitute information in lieu of indictment, alleged that defendant had a prior felony conviction. The defense counsel referred to this conviction in voir dire examination and now claims a mistrial should have been declared because of the prejudicial impact of his mistaken reference.

Any error, however, was of the defendant’s own making because the defense counsel had three months to investigate the conviction alleged in the information which was vehemently denied by his client at trial. Defendant cannot take advantage of his own lack of diligence in the preparation of his defense by obtaining a mistrial. State v. Nenninger, 354 Mo. 53, 188 S.W.2d 56, 58 (1945). A mistrial is a drastic remedy reserved for extraordinary circumstances, State v. James, 347 S.W.2d 211 (Mo.1961), and an appellate court will not reverse a trial judge’s ruling on a mistrial motion unless there is a clear abuse of discretion. State v. Camper, 391 S.W.2d 926, 927-8 (Mo.1965).

In addition, the defendant received other sufficient relief for this inaccuracy. The judge explained to the jury that the previous information from the clerk’s office was incorrect and instructed the jury to disregard it.

Because the erroneous information was given to the jury by the defense counsel, who cannot be allowed to profit from his own mistake, and because the judge took appropriate corrective steps to remove the prejudicial impact of the misinformation, we hold that the denial of the mistrial motion was proper.

Lastly, we reject the defendant’s third claim of error that the trial court failed, sua sponte, to instruct the jury to receive the testimony of the accomplices with caution. Defendant made no request for such an instruction at trial and did not raise the point in his motion for a new trial. Therefore, if we are to review this claim of error we must do so under the “plain error” rule, which we decline to do. To apply the plain error method of review, “ . [tjhere must be a sound, substantial manifestation, ... a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked. . . ” State v. Meiers, 412 S.W.2d 478, 480-81 (Mo.1967). This cannot be true in this case for the instruction sought is now, and at the time of the trial, was forbidden by the Missouri Approved Criminal Instructions, MAI-CR No. 2.01(2); State v. Lewis, 539 S.W.2d 451, 452 n.1 (Mo.App.1975); State v. Lang, 515 S.W.2d 507, 510-11 (Mo.1974).

For the above reasons, we affirm the judgment.

STEWART and REINHARD, JJ., concur.