author: SIMEONE, Judge. BARDGETT, Judge,

text:
    Jenny Elizabeth KAUSCH, a minor by her next friends, Michael Kausch, et al., Plaintiffs-Appellants, v. Dr. Marion D. BISHOP, M. D., Defendant-Respondent.
    No. 60632.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.
    Edward P. Burke, Robert S. Moss, Wion, Burke & Boll, Clayton, for plaintiffs-appellants.
    Joel D. Monson, Anderson, Gilbert, Wol-fort, Allen & Bierman, St. Louis, for defendant-respondent.
   SIMEONE, Judge.

This case presents a unique and heretofore unresolved question concerning the right of a child of a deceased unmarried minor to maintain an action for damages under the Missouri Wrongful Death Act. §§ 537.080, 537.100, RSMo 1969.

The precise issue confronting us is whether an infant child of a deceased unmarried minor who is survived by a mother and father may commence an action for the wrongful death of her mother after a period of one year but prior to the expiration of two years from the date of the mother’s death allegedly caused by the negligence of the defendant.

The trial court dismissed two counts of the petition relating to the child’s claim because the petition was not brought within a period of one year. The trial court, consistent with the Rules, designated the dismissal of the child’s petition as a final, appealable order and the child appealed to the Court of Appeals, St. Louis District. That district reversed the judgment and held, in an opinion dated January 10, 1978, that the child of a deceased unmarried minor could maintain an action for the wrongful death of her mother within two years from the date of the mother’s death.

After the opinion of the Court of Appeals was handed down, we granted the respondent’s motion to transfer and now decide the case as on original appeal. Article V, § 10, Rule 83.03.

The facts of this case are relatively simple but the resolution of the legal issue is not easily settled in view of the present statutes relating to wrongful death.

On August 12, 1976, a petition for damages for the wrongful death of Joanna Kausch, an unmarried minor, was filed. The petition was in four counts. Counts I and II sought damages by Joanna’s two year old daughter, Jenny Elizabeth Kausch by and through her next friends Michael and Irene Kausch, the infant’s grandparents. Count I sought actual and Count II sought punitive damages. Counts III and IV brought by the parents of Joanna — Michael and Irene Kausch, individually— sought damages for “loss of services” and for “wrongful death” of their “unmarried minor” daughter.

On September 21, 1976, respondent — Dr. Marion D. Bishop, M.D., filed his motion to dismiss Counts I and II because (1) the child’s mother, Joanna, died on June 13, 1975; (2) that Jenny Elizabeth was a surviving minor child of Joanna; (3) that §§ 537.080 and 537.100 provide that the minor child “must file its action for wrongful death within one year after death”; and (4) that because the action was filed on August 20 [sic — 12th?] it was not timely filed, hence Counts I and II should be dismissed. After the motion was submitted and argued, the trial court sustained the defendant-respondent’s motion to dismiss Counts I and II, and designated, nunc pro tunc, the dismissal as a final appealable order under Rule 81.06.

On this appeal, appellant, Jenny Elizabeth Kausch contends that the trial court erred in dismissing Counts I and II because the deceased, Joanna, was an unmarried minor and therefore (a) the child or the parents may file suit within two years, or (b) the child and the parents may file suit jointly or severally within two years, or (c) the child having brought suit within two years, the child appropriated the action for wrongful death. The appellant argues that § 537.080, subsection (2) provides that the parents have an immediate claim upon the death of the daughter Joanna and § 537.-080, subsection (1) provides that the deceased's minor child may bring the action upon her mother’s wrongful death. She argues that the one year limitation requirement — if a minor child fails to sue within one year — has been held applicable only to situations where the right of action “passes” to the parents of a child, and where there are no parents for the claim to “pass” to the spouse or minor children the children have two full years within which to sue. She also argues that where there is no preferential class of beneficiaries for wrongful death and each class stands on the same footing, the one year requirement that a minor child sue within one year is inapplicable; hence both the minor child under § 537.080(1) and the parents under § 537.080(2) have two years under§ 537.100 to maintain an action for the death of an unmarried minor who leaves a minor child. She urges us to liberally construe § 537.080 to reflect the intent of the General Assembly to provide a remedy for those who suffer a loss as a result of another’s wrongful death.

Appellant concludes by contending that the legislative intent is to grant to either the child or the parents of the deceased unmarried minor the right to sue within two years so that both child and parents have the right to maintain the action.

Respondent, Dr. Bishop, on the other hand contends that the statute, § 537.080 clearly provides that since the child, Jenny, did not commence her action within one year after the death of her mother, Joanna, she has no claim, and the right of action “passes” to the deceased’s parents. Respondent, however, concedes in his brief that within one year after the death of Joanna, the parents (Michael and Irene) could have immediately brought suit for the wrongful death of Joanna. Respondent’s argument is that the

“. . . correct interpretation of the statute and its resultant application in this case is that whereas the surviving minor child could have brought’ action within a year of her mother’s death either severally or jointly with the parents of the deceased, once the year’s period had passed, she no longer had any right to bring this action and whatever rights she initially did, in fact, pass to the parents of deceased. . . .”

The resolution of the issue presented requires a construction of our Wrongful Death Act, §§ 537.080, 537.100, RSMo as amended in 1967.

Section 537.080 provides:
“Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, ... the person who . . . would have been liable if death had not ensued shall be liable to an action for damages, . . . which damages may be sued for and recovered
“(1) By the spouse or minor [child] children, natural or adopted, of the deceased, either jointly or severally; . . . and provided, further, that only one action may be brought under this subdivision against any one defendant; or
(2) If there be no spouse or minor children or if the spouse or minor [child] children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; .
or
(3) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased.” (Emphasis added.)
Section 537.100, RSMo provides:
“Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; . . . .”

Although serious doubt has been raised in recent decisions, the traditional principle is, and the overwhelming weight of authority holds, that no cause of action or claim for relief existed at common law and it is only by the creation of the wrongful death acts that such a claim was established. Glick v. Ballentine Produce, Incorporated, 343 F.2d 839, 841 (8th Cir. 1965), cert. den. 382 U.S. 891, 86 S.Ct. 184, 15 L.Ed.2d 149 (1965); Glick v. Ballentine Produce Incorporated, 396 S.W.2d 609, 614 (Mo.1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 44,15 L.Ed.2d 5 (1966); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. bane 1957); Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 922 (banc. 1933); State v. Daues, 314 Mo. 13, 283 S.W. 51, 56, 45 A.L.R. 1466 (banc 1926); Baker v. Bolton, 1 Camp. 493,170 Eng.Rep. 1033 (1808); Davis Wrongful Death, 1973 Wash.U.L.Q. 327, 327-329.

From this traditional principle and the judicial constructions thereof many subsidiary and corollary principles flow.

In our opinion, the one year limitation statute embodied in § 537.080(2) requires the child of a deceased unmarried minor to commence an action for wrongful death within one year from the date of death. We believe such conclusion is compatible with previous decisions and the statutory scheme for compensation in wrongful death cases.

In Wessels v. Gipfel, 522 S.W.2d 653 (Mo. App.1975), George Wessels, a 25-year old unmarried adult lived with his mother and was her principal source of support. He met his death by reason of the alleged negligence of the defendant. He also left an infant daughter born out of wedlock. The daughter’s action was not filed within one year after his death or after one year after her birth. The mother had filed suit for damages for wrongful death of her son but the suit was dismissed upon a negotiated settlement. The trial court dismissed the infant’s petition and the Missouri Court of Appeals, St. Louis District affirmed.

The court examined the basic theory of the Wrongful Death Act and held that the infant child of the unmarried adult, a member of the class described in subsection (1) of § 537.080 who did not file her action within one year after such death was barred from maintaining an action so that the claim was subject to appropriation by the mother.

In State ex rel. Kan. City Stock Yards v. Clark, this court en banc held that the surviving spouse and minor children who did not commence an action within one year after the decedent’s death who is survived by his parents was sufficient to preclude the widow and children from suing after the expiration of one year but less than two years from the date of death.

In Edmonsond v. Lakeside Hospital Ass’n., 562 S.W.2d 361 (Mo. banc 1978), the latest expression of this court, it was held that two minor children of a deceased mother who left surviving parents were precluded from maintaining an action where the action was not commenced within one year from the date of death.

“. . . Under § 537.080, RSMo 1969, as last interpreted in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976), the claim for [the mother’s] wrongful death accrued on the date of her death, and vested first in the spouse and minor children who, in case . . . deceased left surviving a father and mother, were obliged to exercise their preferred right by filing suit within one year from the date of death. The minor children did not do so. . .” 562 S.W.2d at 363.

While these decisions are not directly controlling, they, as well as the statutory scheme established by the General Assembly are indicative of the basic premise that the Wrongful Death Act is principally intended to provide a preferential remedy for those persons who naturally suffer the greatest loss by the death of another.

Our Wrongful Death Law establishes separate classes of beneficiaries based on their natural dependency on the deceased and establishes preferred classes who have first rights so as to provide a remedy to those persons and. individuals who naturally suffer the greatest loss from the death. Under the scheme established by the General Assembly since the inception of the Wrongful Death Laws in 1855 (Chap. LI, § 2, RSMo 1855 at 648), the first preference is given to those closest to the deceased — the surviving spouse and his or her child or children, then to the natural parents of the deceased, and then to more remote heirs and relations. See discussion in Crane v. Riehn, 568 S.W.2d 525, No. 59686, July 24, 1978 (Mo. banc).

An action for damages for wrongful death under § 587.080 may first be instituted by the spouse or children. Then if there be no spouse or minor children, or if the spouse or minor children do not sue within one year, or if the deceased be a minor and unmarried, then the action devolves upon the parents of the deceased, and if there be no spouse, children, or parents, then the administrator or executor has the right to sue.

We believe that § 537.080(1) establishes the general principle that first preference is given to those persons who naturally suffer the greatest loss; and that subsection 2 and 3 of that section establish exceptions to that principle. These principles fit the legislative scheme of preferred classes of beneficiaries.

The statute, as we view it, establishes a reasonable and societal beneficent hierarchy of preferred classes of persons who naturally suffer the greatest loss by the death of an individual.

This hierarchy makes legal sense when the exception contained in subsection 2 of § 537.080 is read as follows:

“(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year, or if the deceased be a minor and unmarried without child or children, then by the father and mother.” (Emphasis added.)

This construction completes the scheme established by the General Assembly and is compatible with the previous decisions construing § 537.080. Cf. Wessels v. Gipfel; State ex rel. Kan. City Stock Yards v. Clark; Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973); Montemayor v. Harvey, S.W.2d 61 (Mo.1973); Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1973) — wrongful death action where decedent is an unmarried adult without surviving children is to be filed by administrator and not surviving parents; Edmonsond v. Lakeside Hospital Ass’n., supra.

The construction which we place on § 537.080 also avoids untoward results and at the same time recognizes than an infant of an “unmarried minor” should be treated preferentially. Under the language of § 537.080, the legitimate child of a deceased married minor must file an action within one year, but the construction urged upon us by the appellant would entitle an illegitimate child of a deceased unmarried minor to commence an action within two years thus giving greater rights to the illegitimate over a legitimate one. The construction we place also gives a preferential right to sue for wrongful death to the child of an unmarried minor in the first instance rather than the parents of the unmarried minor within the first year of death. Such child should have a preferential remedy because it is that child who suffers the greatest loss.

We hold therefore that an infant child of a deceased unmarried minor has, under § 537.080, a preferential claim over the parents of the deceased but that such action for wrongful death must be brought within one year from the date of the decedent’s death. In the event such claim is not made within one year from the date of the death, such claim is barred, and then “[damages may be sued for and recovered] by the father and mother . . .

While appellant contends that there was no “passage” of the claim from the child of the unmarried minor to the parents of the minor, we believe that when the statute is looked at in its entirety and in consideration of the statutory scheme, there is a preferential right in the child of the unmarried minor, which if not exercised within one year passes to the parents of the deceased unmarried minor.

The courts of this state have struggled long and hard to reconcile the difficulties and perplex problems raised in our present wrongful death statutes. The problems are recurring and the resolutions adopted are sometimes contradictory. In view of the difficulties and in view of the new light now shed on traditional concepts that has governed the statutes and judicial decisions for years, we urge the General Assembly to review the present statutes relating to wrongful death and adopt a comprehensive, simpler and more organized Death Act which conforms to the basic needs of contemporary society. There are many complex and variable issues that need resolution. These issues can be adequately and thoroughly resolved only through the legislative process.

Under the record, we hold that the trial court did not err in dismissing Counts I and II of the petition.

The judgment is affirmed.

MORGAN, C. J., and FINCH, DONNELLY and RENDLEN, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge,

dissenting.

I respectfully dissent. Jenny Kausch was born on September 28, 1974, to Joanna Kausch. Joanna died on June 13, 1975, allegedly due to defendant’s negligence. At the time of her death Joanna was still a minor and was unmarried and left surviving her daughter, Jenny aged 8 months, and her parents, Michael and Irene Kausch.

Jenny, aged 8 months, did not sue during the first year following her mother’s death. The principal opinion, by reading words into the statute, construes it so as to limit Jenny’s right to sue to the first year after her mother’s death and bars the instant action by her. So, Jenny becomes casualty number five of a confusing wrongful death law. Casualty number four was Nathan Crane, a child born 7½ months after his father’s death, who failed to sue within the remaining 4½ months of the first year following his father’s death. Crane v. Riehn, 568 S.W.2d 525 (Mo. banc 1978) [No. 59686] decided concurrently herewith, in which I also dissented.

The Missouri Court of Appeals, St. Louis District, in an opinion by Judge Gerald Smith, construed the wrongful death statute so as to uphold this child’s right to sue in this case. I agree with the court of appeals analysis of the statute in this case and adopt Judge Smith’s opinion as my dissent in this case as follows:

“This case presents the question whether when the deceased is an unmarried minor survived by parents and a child, the child must bring its wrongful death action within a year or whether the two year statute applies. We find no case in Missouri dealing with this fact situation. Sec. 537.080 RSMo 1969, provides that a wrongful death action may be brought:

“ ‘(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; ... (2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, . . .’ (Emphasis supplied).”

“Respondent concedes, and the emphasized language makes clear, that under the fact situation here the parents of Joanna were entitled to bring a suit immediately upon Joanna’s death. Since she was a minor and unmarried at the time of her death, her parents are not required to wait for one year as provided in the second disjunctive clause of paragraph 2.

“That clause providing for a one year waiting period as to the parents has no application to the fact situation here and is unnecessary to any determination of the parent’s rights. Inasmuch as the function of that clause is to determine the right of suit in a different fact setting than is here involved, we are unable to conclude that it has application to this case. Only that clause imposes upon a minor child a shorter statute than the two year provision in Sec. 537.100, RSMo 1969. Since the clause has no application to the fact situation before us, it cannot limit the rights of the minor child. Plaintiff and the parents of Joanna are limited solely by the two year statute of limitations contained in Sec. 537.100, RSMo 1969.

“The conclusion we reach is not only in keeping with the statute as written but with the cases which have dealt with the one year ‘internal’ limitation period. In Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973) and Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973) the Supreme Court held that a spouse was not restricted to one year in which to bring suit where there was no other class of beneficiary to step forward upon the failure of the spouse to exercise the right within a year. These decisions, in essence, are based upon the premise that the one year ‘internal’ statute comes into play only when a second class of potential beneficiaries are in existence awaiting the failure of the primary beneficiaries to proceed under the wrongful death statute. The thrust of State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo. banc 1976) is the same. That case imposed the one year limitation upon a spouse and minor children when the deceased was also survived by parents who were still alive several years after decedent’s death, but who did not claim to have suffered any pecuniary loss from their son’s death. See also Selsor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo. banc 1976). Both Clark and Selsor are based upon the concept that certain beneficiaries are given a preferred right to proceed for wrongful death, but that upon their failure to so proceed their rights irrevocably pass to a less preferred class of existing beneficiaries. An essential difference between the majority and dissenting opinions in those cases was whether the right irrevocably passed or simply was subject to defeasance by action of the less preferred class. Inherent in both majority and dissenting opinions is the requirement that for the one year ‘internal’ statute to be applicable, there must exist two classes of beneficiaries, one having preference over the other. In the absence of such preferential treatment in the statute the one year limitation simply has no application.

“In the case at bar no preferential class of beneficiaries exist. Both the minor child and the parents could bring the suit immediately after the death of the unmarried minor mother. Both have equal preference. The one year statute does not apply.

“Nor does such a finding produce an unfair or unseemly race for the courthouse. Rules 52.04, 54.05 and 52.06 provide for joinder of interested beneficiaries. Sec. 537.095 RSMo 1969 provides for apportionment of damages among those entitled thereto.

“Judgment dismissing Counts I and II of plaintiff’s suit is reversed and cause is remanded for further proceedings.”

The principal opinion suggests the construction placed on the statute by it avoids giving greater rights to an illegitimate child over a legitimate one. But it makes no difference under the principal opinion whether the child is legitimate or illegitimate. Had Joanna been married when Jenny was born and her husband died or they were divorced, after which Joanna, a minor, died leaving Jenny, the same result would obtain. Joanna would still have been an unmarried minor who was survived by a minor child and her own parents.

The Crane case, where a minor child had only until he was 4¼ months old to sue, and this case, where a baby had only from 8 months of age to 20 months of age within which to sue for the parent’s death, before losing their causes of action to less damaged persons, dramatically demonstrate the dire need for corrective legislation. However, until such legislation is forthcoming, I believe this court should, whenever possible, construe the statute so as to allow the most damaged persons (minor children and widows to sue, as the court of appeals did, rather than bar the action.

These cases where infants lose their right to sue for the death of their parents by the mere passage of just a few months’ time, during which the infants can do absolutely nothing for themselves, ought to cause us to reconsider the origin of wrongful death actions and to hold, as the Massachusetts Supreme Court did in Gaudette v. Webb, 284 N.E.2d 222 (1972), that the action is of common law origin and the limitation period is tolled by the disability of infancy. I dissent.

      . The petition for appointment of next friends was filed and approved on August 18, 1976. The petition alleged that Joanna died on June 13, 1975, in St. Louis due to the negligence of the defendant.

      . Although the briefs indicate otherwise, the child’s petition for damages for wrongful death did not indicate that Joanna was an unmarried minor. This fact appeared only in Count III of the parents’ action for loss of services. The parties, however, do not dispute that Joanna was an unmarried minor and the daughter of Irene and Michael Kausch.

      . if the deceased be a minor and unmarried, then by the father and mother . .” Section 537.080(2).

      . See Bardgett, J., dissenting in State ex rel. Kan. City Stock Yards v. Clark, 536 S.W.2d 142, 149 (Mo. banc 1976); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972); see also 1 Speiser, Recovery for Wrongful Death 2d, §§ 1:4-1:7, at 11-28 (1975).

      . The principles are summarized in State ex rel. Kan. City Stock Yards v. Clark,' supra, and State ex rel. Jewish Hospital Etc. v. Buder, 540 S.W.2d 100, 104-105 (Mo.App.1976).

      . In Wessels v. Gipfel, as in this case, there was no contention that an illegitimate child does not have the same right to sue for the wrongful death of its natural parent as a child whose mother was married to the natural father at the time of death. See Annot., 38 A.L. R.3d 613 (1971); see also 2 Speiser, supra, § 10:4, at 131-139 and § 10:12 at 148-151.

      .See also Selsor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo. banc 1976) — Widow and minor child cannot maintain action for wrongful death filed more than one year but less than two years after death.

      . See F. Tiffany, “Death by Wrongful Act”, at 1-16 (2d ed. 1913); Davis, “Wrongful Death”, 1973 Wash.U.L.Q. 327 (1973); the authorities cited in the dissenting opinions of State ex rel. Kansas City Stock Yards v. Clark, supra, Sel-sor v. Zenith Radio Corp., supra and Crane v. Riehn, supra; and authorities cited in the principal opinion in this case.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    In re Annexation Petition of OSAGE BEACH, Missouri. STATE of Missouri ex rel. CITY OF LAKE OZARK, Missouri, Appellant-Relator, v. CITY OF OSAGE BEACH, Missouri, Appellee-Respondent.
    Nos. KCD 30050, KCD 30148.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Rehearing Denied July 3, 1978.
    Kibbe, Crews & Gaw, Terrence F. Pyle, Tipton, for appellant-relator.
    Phillips, McElyea, Walker & Carpenter Corp., Charles E. McElyea, Camdenton, for appellee-respondent.
    Before WASSERSTROM, P. J., SWOF-FORD, C. J., and SHANGLER, DIXON, PRITCHARD, SOMERVILLE and TUR-NAGE, JJ.
   TURNAGE, Judge.

The City of Lake Ozark appeals from an order overruling its motion to intervene and to set aside a default judgment approving the annexation by the City of Osage Beach of certain land. The default gave Osage Beach court approval to proceed with annexation under Sec. 71.015, RSMo 1969, known generally as the Sawyer Act.

Lake Ozark filed its notice of appeal with this court from the above order, then sought a writ of prohibition from this court to prohibit Osage Beach from holding an election to carry out the annexation authorized. This court issued its preliminary rule of prohibition. The appeal by Lake Ozark from the order overruling its motions to set aside the judgment and to intervene has been consolidated with its proceeding in prohibition.

In this appeal Lake Ozark contends it was interested in the same area sought to be annexed by Osage Beach and was, therefore, a proper party in the proceeding brought by Osage Beach to authorize the annexation. The orders overruling the motions to set aside and intervene are affirmed and the preliminary rule in prohibition is discharged.

On April 10, 1975, the city council of Osage Beach passed a resolution to annex certain land. On September 18, 1975, the city council of Lake Ozark adopted a resolution to annex the same land covered by the Osage Beach resolution, together with additional land.

On October 6, 1975, the City of Osage Beach filed a petition in the Circuit Court of Miller County under the provisions of the Sawyer Act to obtain court approval for its annexation. On December 16, 1976, a default judgment was entered authorizing Osage Beach to proceed with its annexation.

On December 27, 1976, Lake Ozark filed its motion to set aside the default judgment and to intervene in the proceedings. On January 9, 1978, the court entered its order overruling the motions filed by Lake Ozark. Thereafter, Osage Beach scheduled an election to submit to the voters of Osage Beach such annexation for their approval.

Before the election could be held on April 4, Lake Ozark filed in this court its petition for prohibition to prohibit Osage Beach from holding such election. This court entered its preliminary rule in prohibition.

In its original brief Lake Ozark argues it was an interested party in the suit brought by Osage Beach under the Sawyer Act to obtain authorization for the annexation of the same land included within the resolution passed by Lake Ozark. In its reply brief Lake Ozark admits that under State ex rel. City of Jackson v. Grimm, 555 S.W.2d 643 (Mo.App.1977), it had no right to intervene in Osage Beach’s Sawyer action. However, Lake Ozark continues to make some argument that since both Lake Ozark and Osage Beach have passed resolutions covering the same territory, and since both cities are presently before this court, the question of priority as between them and the question of whether or not Osage Beach abandoned its annexation should now be determined.

It was stated in City of Jackson, supra, that a determination of the reasonableness of an annexation on the part of one city does not prevent another city from pursuing its annexation proceeding to obtain a similar ruling with respect to the same territory. While the court there held other cities which have passed resolutions for the annexation of the same territory as a city which has embarked on its Sawyer action are not necessary parties, still such other cities may be joined for the purpose of expanding the Sawyer action to include the question of priority between the cities.

In the present situation, Lake Ozark was free to file its own Sawyer action at any time after it passed its resolution to annex. It could expand that action to request adjudication of the question of abandonment on the part of Osage Beach for any alleged failure to timely carry out its annexation. The fact Lake Ozark failed to pursue a remedy available to it for almost fifteen months does not require the court to grant permissive intervention.

Lake Ozark makes some argument that under Sec. 527.110, RSMo 1969, and Rule 87.04, it should now be allowed to move to set aside Osage Beach’s default judgment and to intervene because of some possibility its rights were prejudiced by the judgment obtained by Osage Beach. However, both the statute and rule specifically provide the declaratory judgment shall not prejudice the rights of those not parties. Lake Ozark further points out both the statute and rule require a municipality to be made a party when the validity of its ordinance is questioned. In the proceeding under the Sawyer Act brought by Osage Beach no question concerning the validity of any ordinance passed by Lake Ozark was raised and the judgment does not adjudicate that question. Thus, Lake Ozark was not a necessary party under either Sec. 527.110 or Rule 87.04.

It is clear under City of Jackson, supra, Lake Ozark was not a necessary party to the suit brought by Osage Beach under the Sawyer Act and, therefore, Lake Ozark was not entitled to intervene as a matter of right. Thus, any question concerning intervention of Lake Ozark would be addressed to the discretion of the court as a matter of permissive intervention. Because Lake Ozark has been free since the passage of its resolution for annexation to file a suit in which the question of priority between it and Osage Beach could be determined, as well as the question of any abandonment on the part of Osage Beach, and absent any showing of an abuse of discretion, the court did not err in refusing permissible intervention to Lake Ozark. Nor did the court err in failing to set aside Osage Beach’s judgment.

The conclusion reached that the court did not err in refusing the motions filed by Lake Ozark carries with it the result that Osage Beach should no longer be prohibited from holding the election authorized by the judgment obtained under the Sawyer Act. For that reason the preliminary rule in prohibition is quashed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ellis EATON, Appellant.
    No. KCD 29189.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Rehearing Denied July 3, 1978.

      Thomas J. Cox, Jr., Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged by information with burglary, second degree, tried to a jury, found guilty as charged, and sentenced to eight years imprisonment.

No evidence was presented by or on behalf of defendant; hence, the following facts stand uncontroverted. On the night of April 29,1976, two members of the Kansas City, Missouri Police Department responded to an activated burglar alarm which was located in the Goodman Hardware Company building at 511 East 18th Street, Kansas City, Missouri. A realty company occupied the building immediately west of the Goodman Hardware Company building and the two shared a party wall. Upon arriving at the scene, the officers checked the Goodman Hardware Company building and found that all windows and doors affording entrance thereto were intact. A representative of the burglar alarm system arrived at the scene and admitted the officers to the Goodman Hardware Company building. Various items of hardware were found to have been scattered about. One of the officers observed a figure on an elevated catwalk disappear through a hole in the west wall of the building. Thereafter the interior lights were turned on, and a person, positively identified at the trial as the defendant, was discovered “crouching” in the rear of the building. Further investigation disclosed that the rear door of the building occupied by the realty company had been jimmied and access to the building occupied by Goodman Hardware Company had been made via the building occupied by the realty company and a freshly carved hole in the party wall. Fresh pry' marks discovered on a safe belonging to Goodman Hardware Company indicated that an attempt had been made to spring the safe door. The building occupied by Goodman Hardware Company had been thoroughly checked at the close of business and all doors and windows were secure and there was no hole in the party wall at that time.

Chronologically, the guilty verdict was returned by the jury on September 28, 1976, but defendant’s motion for new trial was not filed until November 5, 1976. The record is silent as to any application by defendant for an extension of time within which to file his motion for new trial, as well as to any grant of additional time by the trial court to defendant within which to file his motion for a new trial. Rule 27.-20(a) provides, inter alia, that “[s]uch motion [motion for new trial] shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” There is no escape from the conclusion that under the record in this case defendant’s motion for new trial, in order to have been timely, had to have been filed “within ten days after the return of the verdict.” Rule 27.20(a), supra. Compliance with Rule 27.20(a) is mandatory, and noncompliance is a matter to be noticed sua sponte by this court as neither it nor the parties can waive strict compliance. State v. Tucker, 451 S.W.2d 91 (Mo.1970); State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Emory, 563 S.W.2d 120 (Mo.App.1978); and State v. Maddox, 549 S.W.2d 931 (Mo.App.1977). A motion for new trial filed out of time, as here (on the 47th day after the jury returned its verdict), is deemed a nullity and preserves nothing for appellate review. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Emory, supra; and State v. Brown, 543 S.W.2d 796 (Mo.App.1976).

Whether defendant’s failure to comply with Rule 27.20(a), supra, turns out to be the nemesis of his four points raised on appeal, depends on whether part or all of the points can be saved for appellate review by either the “plain error” rule, Rule 27.-20(c) or the mandatory review provisions of Rule 28.02 .

Defendant’s points on appeal are as follows: (1) defendant was deprived of an “impartial trial, due process and equal protection of law in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States” by reason of the exclusion of all blacks from the petit jury finally selected to try defendant by the state’s use of its peremptory challenges; (2) the information failed to charge defendant with a proscribed offense because it contained no allegation that defendant entered the building occupied by Goodman Hardware Company “with the intent to steal goods or merchandise stored therein”; (3) the trial court erred in overruling defendant’s motion for acquittal at the close of all the evidence because the state failed to “prove beyond a reasonable doubt” that defendant burglariously entered the Goodman Hardware Company building “with the in-' tent to commit a felony therein”; and (4) defendant was denied “a fair trial and due process of law as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution” because the state “deliberately suppressed the existence of fingerprints and photographs takened [sic] at the scene of the alleged offense.”

Under the prevailing ease law of this state issues with constitutional dimensions may be addressed and disposed of on appeal as “plain error” under Rule 27.20(c). State v. Hammonds, 459 S.W.2d 365, 369 (Mo.1970); State v. Coyne, 452 S.W.2d 227, 228 (Mo.1970); and State v. Meiers, 412 S.W.2d 478, 480-81 (Mo.1967). Points one and four relied on by defendant, although not preserved for appellate review, will be dealt with under the auspices of the “plain error” rule, Rule 27.20(c), in view of their constitutional tone.

Point three, which freely lends itself to being construed as an attack upon the sufficiency of the evidence, is likewise amenable to being reviewed on appeal as “plain error” under Rule 27.20(c). State v. White, 439 S.W.2d 752, 753 (Mo.1969); and State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969).

Point two will be reviewed under the mandatory review provisions of Rule 28.02, supra, since it challenges the sufficiency of the information to charge defendant with a proscribed offense.

Defendant’s insistence that he was deprived of an impartial trial, due process and equal protection of law in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States by reason of the exclusion of all blacks from the petit jury by the state’s use of its peremptory challenges parrots a frequently asserted claim of error. Although the record bears out defendant’s contention that three black persons were on the venire panel and that the state struck all three by use of its peremptory challenges, no claim was made by defendant, and no apposite evidence was offered by him with respect thereto, that the state had or did “systematically” use its peremptory challenges to exclude all blacks from petit juries in “case after case”. Having failed to allege or prove a systematic pattern of exclusion of black veniremen as petit jurors by the state by use of its peremptory challenges, defendant has failed to raise a claim partaking of such “added significance” as to rise to a justiciable constitutional issue in the sense spoken of in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). State v. Williams, 535 S.W.2d 128 (Mo.App. 1976); and State v. Jacks, 525 S.W.2d 431 (Mo.App.1975).

Defendant’s second point charges that the information was faulty in that it failed to allege that defendant broke and entered the Goodman Hardware Company building “with the intent to steal goods and merchandise stored therein”. Suffice it to say, a reading of the information charging defendant with the offense of burglary, second degree, as proscribed by Sec. 560.-070, RSMo 1969, without resort to any verbal gymnastics or exercise in semantics, discloses that the information, after alleging all other essential and necessary elements of the charged offense, specifically charged that defendant broke into and entered the Goodman Hardware building “with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglariously to steal . ”. Grammatical nicety in the drafting of an information is not of paramount concern, as poor draftmanship will not render an information fatally defective so long as it states the essential facts of the offense and adequately notifies defendant of the charge against him. Hodges v. State, 462 S.W.2d 786, 789 (Mo. 1971); and State v. Adams, 546 S.W.2d 550, 552 (Mo.App.1977). A similarly worded information withstood a comparable attack in State v. Taylor, 136 Mo. 66, 37 S.W. 907, 908 (1896), rev’d on other grounds.

Defendant next claims that the state did not “prove beyond a reasonable doubt that defendant forcibly broke and entered the Goodman Hardware Company building with the intent to commit a felony therein.” It is neither the function nor prerogative of an appellate court to weigh the evidence to determine whether a charge has been proven beyond a reasonable doubt. State v. Crawley, 478 S.W.2d 344, 345 (Mo.1972); State v. Achter, 514 S.W.2d 825, 826 (Mo.App.1974); and State v. Sherrill, 496 S.W.2d 321, 322 (Mo.App.1973). The scope of its review extends only to a determination of whether sufficient substantial evidence exists to support the verdict. State v. Crawley, supra; State v. Achter, supra; and State v. Sherrill, supra. Notwithstanding defendant’s poor choice of words in several respects, this court, giving defendant the benefit of the doubt, will construe his third point as challenging the sufficiency of the evidence to support a finding by the jury that he forcibly broke and entered the Goodman Hardware Company building “with the intent to steal". In this perspective, the following becomes apropos. The breaking and entering of a building where goods and merchandise are kept is alone sufficient to prove the requisite intent to steal. State v. Massey, 542 S.W.2d 88, 90 (Mo.App.1976). But even more exists in the present case to support a finding by the jury that the defendant broke and entered the Goodman Hardware Company building with intent to steal. The safe in the hardware store showed evidence of fresh pry marks, there were crowbars and screwdrivers lying in the immediate vicinity of the safe, and numerous items of merchandise were disarranged when the officers entered the building. Thus, far more than a paucity of evidence existed to support a finding by the jury that defendant broke into and entered the Goodman Hardware Company building with the intent to steal.

By way of his fourth and final point, defendant contends he was denied a fair trial and due process of law (as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States) in the context of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The gravamen of this charge rests on certain evidence drawn out by defense counsel on cross-examination of one of the police officers who responded to the activated burglar alarm. More particularly, during defense counsel’s cross-examination of the referred to police officer it was disclosed that a “lab crew” from the Kansas City Police Department appeared at the scene and took photographs of the “hole in the wall” and of the “safe”, “dusted areas” from which fingerprints “possibly might be lifted”, and took charge of “the physical evidence” at the scene. Defense counsel made no effort during cross-examination to discover the identity of the members of the “lab crew” who took the photographs and dusted for fingerprints, or to ascertain the present whereabouts of any resultant tangible items, if any, derived therefrom or any results obtained from any such tangible items. Nor did defendant, according to the record, avail himself of Rule 25.32 to obtain pre-trial discovery of the presently complained of photographs and fingerprints. Anomalously, defendant does not allege or contend that any discernible fingerprints were lifted, or, if discernible fingerprints were lifted, whose they were. Nor does he contend that any photographs which were taken or any fingerprints which were lifted would tend to negate his guilt of the charged offense, mitigate the degree of the offense charged, or reduce the punishment. Two glaring omissions on defendant’s part, one pragmatic and one legal, pervade defendant’s fourth and final point — a failure on his part to offer any proof (1) that the state suppressed any fingerprints or photographs or (2) that he requested their disclosure. The record shows the opposite with respect to both. There is nothing in the record whatsoever that hints or suggests that the state suppressed or withheld any evidence from defendant which would tend to négate his guilt of the charged offense, or which would mitigate the degree of the offense, or reduce the punishment. More to the point, there is not a whit of evidence that defendant, either before or during trial, requested disclosure as to the whereabouts or substance of the presently complained of photographs and fingerprints. As held in Brady v. Maryland, 373 U.S. at 87 and 83 S.Ct. at 1196-97, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Emphasis added.) The “combination” for unlocking a constitutional issue in the context of Brady v. Maryland, supra, is a request by an accused for certain evidence within the control of the state and its suppression by the latter. The evidence presented by the state at the instant trial was straightforward and clean-cut. Defendant, literally speaking, was caught red-handed inside the Goodman Hardware Company building under the abnormal conditions and circumstances shown by the evidence. Photographs or fingerprints were obviously superfluous as far as the state was concerned, and deemed totally unnecessary by the state to sustain its burden of proof. It is apparent that the state chose to shorten presentation of its case by the simple expedient of presenting only the oral testimony of its key witnesses. Parenthetically, the state was under no duty or compulsion to search for fingerprints. State v. Wiggley, 515 S.W.2d 791, 792 (Mo.App.1974). In conclusion, the facts presented by this case do not raise an issue of unconstitutional suppression of evidence within the ambit of Brady v. Maryland, supra.

Judgment affirmed.

All concur.

      . “27.20(c) Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

      . See note 2 on page 544. 2. “28.02 . . Allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be considered upon an appeal although not raised in the trial court or preserved for review.”

      . Section 560.070, RSMo 1969: “Burglary involving breaking and entering enclosures besides dwelling places

      Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”


author: PRITCHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Donald E. PETREE, Appellant.
    No. KCD 29022.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Rehearing Denied July 3, 1978.

      M. Craig Cassing, Sedalia, for appellant; Brown, Buckley & Cassing, Sedalia, of counsel.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

By the verdict of a jury, appellant was convicted of the offense of murder in the first degree, and upon a finding that he was a second offender, the court sentenced him to life imprisonment in the Department of Corrections.

Appellant does not question the sufficiency of the evidence. Suffice it to say that the facts show that appellant, on May 17, 1975, fired shots into the back of his estranged wife, Dorothy Petree, in a parking lot, which resulted in her death.

Appellant’s points urging reversal and remand for a new trial all relate to contended failures of the state to comply with pre-trial discovery requests in these respects: (1) Permitting Sheriff Emmett Fairfax to testify (in rebuttal) because his identity had not been disclosed on requests for discovery; (2) Failure to disclose prior criminal convictions of state’s witness, Mildred Ann Hontz; (3) Admitting in evidence State’s Exhibit 17, hospital records, where the state’s intention to use them had not been disclosed; and (4) Failure of the state to disclose a prior medical examination of appellant where it tended to corroborate his theory that he was suffering from a mental disease or defect at the time of the offense. Although the transcript on appeal does not contain objections to these items of evidence, a stipulation of June 28, 1977, filed herein recites that objections thereto were made at trial and were overruled by the court.

Appellant filed notice of his intent to rely upon the defense of not guilty by reason of mental disease or defect on July 14, 1975. A psychiatric examination was granted at state’s expense at the State Hospital at Fulton, Missouri. From that examination, Dr. Henry R. Bratkowski testified in rebuttal that a schizoid personality was not a mental disease under Missouri law. On January 6, 1976, appellant’s motion for private re-examination by a psychiatrist at the Missouri Baptist Hospital in St. Louis County, Missouri, was granted. From that reexamination, Dr. Robert B. Deitchman, M.D., testified that appellant was suffering from a mental disease or defect at the time of the charged offense, as revealed by his report, that “This man has a schizoid personality.” Elaborating, Dr. Deitchman testified, that at the time of the incident, May 17, 1975, “A I stated that I feel that with some clarification as in the presence of the gun, clarification of the exact degree of difficulty of Mr. Petree, schizoid personality seems to be substantiated by his history. One can consider the possibility this man was under sufficient stress and broke and was unable to control his actions.” And, “Q * * * If I understand it, your conclusion is that this man is of a schizoid personality type? A This man has a schizoid personality.”

Appellant called lay witnesses who, based upon their observations, testified to the effect that he was suffering from mental disease or defect at the time of the alleged offense. To meet the testimony of the lay witnesses, the state called in rebuttal Sheriff Emmett Fairfax, who, based upon his observations of appellant while he was in jail for several months, gave hiá opinion that appellant was not mentally ill. The admission of this rebuttal testimony, the witness not being specifically disclosed by the state, is the basis for appellant’s first point. The case of State v. Curtis, 544 S.W.2d 580 (Mo. banc 1976), cited and relied upon by appellant, did indeed hold that under the new rules of criminal discovery, it was reversible error to permit a psychiatrist to testify in rebuttal that appellant there did not suffer from a mental disease or defect, because, “ ‘Reciprocal discovery’ mandates that the State be required to disclose the names and addresses of persons it intends to call as rebuttal witnesses in both situations [alibi and notice-of-mental disease or defect defense situations]. ‘It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.’ [Quoting Wardius v. Oregon, 412 U.S. 470, 476, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)]”. [Brackets added.] The obviously sound purpose of discovery rules is to prevent surprise, as noted in the Curtis opinion. There, so far as the opinion reveals, the existence of the psychiatrist as a possible witness was unknown to defendant until the night before trial, and “there was no opportunity afforded the defense to arrange to interview Dr. Tuttle, much less depose him.” In this case, appellant himself disclosed to the state that he intended to call Sheriff Fair-fax as a witness in his own behalf, but he did not do so. He had full opportunity to interview him for some length of time prior to trial to ascertain if any testimony he might give would bear upon the early asserted defense of mental disease or defect. Furthermore, prior to Sheriff Fairfax’s rebuttal testimony, appellant did not request a recess or adjournment in order to further interview the witness. “Neither did he request an adjournment or recess of the trial in order to be afforded an opportunity to interview the rebuttal witnesses. Where the discretion of the trial court has not been invoked, it cannot be said that there was an abuse of that discretion. State v. Perry- man, 520 S.W.2d 126,128[3] (Mo.App.1975).” State v. Hooker, 536 S.W.2d 487, 491[7] (Mo.App.1976). The circumstances of this case show that there was no withholding by the state of the identity of a witness it would call in rebuttal (the state not being required to endorse rebuttal witnesses on the indictment or information, Curtis, supra) as to amount to a surprise to appellant. The first point is overruled.

As to the second point that the state failed to disclose prior criminal convictions of witness Hontz, the record shows that in response to request, the state disclosed: “7. The State has requested computer checks on the witnesses, and none of the witnesses with the exception of Richard B. Jones has an identifiable NCIC or MULES criminal record. Mr. Jones has two convictions for speeding. The printouts are included in the file and available for review.” On pre-trial deposition, witness Hontz testified that she had never been convicted. On motion for new trial, appellant attached certified copies of magistrate court records showing that witness Hontz had pleaded guilty to charges of “exceeding day speed limit” and “speeding” in 1975. The magistrate records show that the prosecuting attorney who conducted this case also represented the state on one of the traffic offenses. Other than that fact, there is nothing indicating that the state failed to use diligence and make good faith efforts to cause this prior misdemeanor material available to defense counsel as required by Rule 25.32(A)(7) and (C). The question is whether the failure to disclose these records would have affected the outcome of the case. Witness Hontz was an eyewitness to the homicide, and testified as to appellant’s guilt in committing it. She did not testify as to the defense of mental disease or defect. Witness Jerry Meyer testified that he saw appellant pull out the gun and shoot deceased approximately seven times, after which she slowly dropped to the ground. In State v. Dayton, 535 S.W.2d 469, 477 (Mo.App.1976), there was a failure to disclose a written report of a physician who examined a young witness at trial in which report were statements contradicting the testimony given at trial — a situation somewhat analogous to the one here, where witness Hontz had given deposition testimony contrary to what the magistrate court records showed as to her. In the Dayton case, the court said, page 478[15,16], “The proof by G. D. of the other counts was merely corroborative of the other sufficient and clear testimony of guilt and, in reasonable likelihood, the failure to disclose the contradictory statement made by G. D. to the physician would not have affected the judgment of the jury. (Citing cases.) * * * We conclude, accordingly, that the evidence was not of a character to raise a reasonable likelihood that, if known at trial, would have affected the result.” As in the Dayton case, witness Hontz’s testimony was merely corroborative of the other clear testimony, that of witness Meyer, as to appellant’s guilt which was before the jury. Accordingly, appellant’s second point is overruled.

Under the third point, appellant contends error in the state’s failure to disclose its intention to use hospital records, State’s Exhibit 17. Appellant admits in his brief that his counsel did in fact examine “some” hospital records. This was pursuant to a written motion for disclosure by appellant for “any reports or statements of experts made in connection with the particular case, including results of physical and mental examinations and of scientific tests, experiments, or comparisons.” This motion was granted by the court, with a further order that a copy of the order of disclosure be served upon the Director of Administration, Fulton State Hospital, Fulton, Missouri. The hospital records came into evidence during rebuttal testimony of Dr. Bratkow-ski, after this in-chambers colloquy: “MR. FLEMING: I have Dr. Bratkowski here today. He is not the doctor who saw Mr. Petree on the second visit to Fulton. That is Dr. Legitt. That is the one I told Mr. Cassing about yesterday morning. I found that out Friday evening and have not been able to get in touch with him. THE COURT: But he has the entire hospital records with him? MR. FLEMING: I presume Dr. Bratkowski does. THE COURT: I will provide an opportunity for those records to be reviewed by this Dr. Deichman and cover it at that time, if the counsel for the defendant so desires. MR. CASSING: To examine those records? THE COURT: Yes. MR. CASSING: I would see no purpose of examining the records, your Honor. It is the position of the defendant that at a subsequent treatment at the State Hospital — it is highly prejudicial to the defendant, irrelevant, immaterial.” It is apparently appellant’s contention that the fact that the hospital records were admitted during rebuttal, that he was prejudicially denied their use to substantiate his own expert’s (Dr. Deitchman’s) opinion. Since appellant knew of the records, as above set forth, and had inspected them, there was nothing to prevent him from obtaining them and using them during his case. No prejudice, and indeed, no error, is demonstrated by the claimed failure of the state to disclose its intention to introduce the records in rebuttal. There was no surprise, nor limitation of any right of cross-examination of witness Bratkowski. Compare State v. Burton, 544 S.W.2d 60, 65[5] (Mo.App.1977). The third point is overruled.

The last point for contended error is the failure of the state to disclose a prior medical examination of appellant because it tended to corroborate his defense of mental disease or defect. That medical examination was done at the request of Sheriff Fairfax made in a response to a petition filed in the probate court by the victim of the homicide here on December 4, 1974. The post-trial affidavit of Dr. Donald K. Kirby offered by appellant on his motion for new trial stated he was unable to find any physical disorders which would explain or rationalize appellant’s behavior or mental condition, but he did recommend, based upon the description of appellant’s behavior given to him by Sheriff’s deputies and appellant’s wife, that he should alternately, be submitted to Fulton State Hospital for testing and treatment on a voluntary basis. At the hearing on the motion for new trial, Dr. Kirby gave his opinion: “A I felt like he was not mentally ill.” He talked to him about 15 or 20 minutes; it was difficult to form any type of opinion with one contact; his talk was very rational; he was very nervous; he was anxious to get out of jail. The doctor testified further that he had never communicated with Sheriff Fairfax or the prosecuting attorney, from whom it was developed that he first learned of the medical examination after the trial, although he learned of the probate petition either from Mr. Cassing or through discovery. There is nothing here to base an imputation of knowledge of the sheriff to the prosecuting attorney of any fact favorable to appellant as was the case in State v. Hurd, 520 S.W.2d 158 (Mo.App.1975). In fact, there is nothing here to indicate that any evidence favorable to the accused was intentionally or even negligently suppressed so as to come within the proscription of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For this reason, the fourth and last point must be overruled.

The judgment is affirmed.

All concur.


author: McMillian, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tyrone MARTIN, Defendant-Appellant.
    No. 38847.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.

      Devereaux & Stokes, Michael D. Stokes, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   McMillian, Judge.

Appellant Tyrone Martin appeals from a final order entered by the circuit court of the City of St. Louis denying appellant’s pro se motion to vacate and set aside judgment and sentence pursuant to Rule 27.26, V.A.M.R. For reversal appellant argues that the trial court erred in failing to immediately appoint counsel to assist appellant in amending the motion. For the reasons discussed below, we affirm the judgment of the trial court but urge the Supreme Court, to reconsider the present construction of Rule 27.26(h), V.A.M.R.

On June 6, 1973, appellant entered a guilty plea to the charge of attempted robbery in the first degree. The trial court suspended imposition of sentence and placed appellant on probation for five.years. On May 10, 1976, appellant pleaded guilty to the charge of burglary in the second degree. On August 27,1976, the trial court revoked appellant’s probation and sentenced appellant to a term of four years imprisonment for the attempted robbery and two years for the burglary, said terms to run consecutively. On December 6,1976, appellant filed a pro se Rule 27.26 motion. The trial court refused to appoint counsel to consult with appellant concerning possible amendments to the motion. Thereafter the trial court overruled appellant’s motion and denied appellant’s request for an evidentia-ry hearing. In a memorandum opinion, which included findings of fact and conclusions of law, the trial court found appellant’s allegations to be either conclusory or without legal merit. This appeal then followed.

The only issue raised on appeal is whether the trial court erred in failing to immediately appoint counsel to assist appellant in amending his motion. Appellant does not argue that the trial court should have held an evidentiary hearing, only that counsel should have been appointed. We note that this issue was presented and resolved ex gratia in Winston v. State, 533 S.W.2d 709 (Mo.App.1976). The court in Winston observed that

[t]he principle established in this state is that there is no right to counsel on a post conviction motion when (1) the contentions made in the motion have been adjudicated previously, or (2) the contentions could have been raised in a prior motion, or (3) the contentions are not cognizable under a 27.26 motion, or (4) where no evidentiary hearing is required.

Id. at 715 (citations omitted); see also Loflin v. State, 492 S.W.2d 770, 772-773 (Mo. banc 1973); Bolden v. State, 530 S.W.2d 505, 507 (Mo.App.1975). It is well-settled that an evidentiary hearing, and thus the appointment of counsel on a Rule 27.26 motion will only be granted if the movant has pled facts, not conclusions, which, if true, would entitle him to relief and the motion contains factual allegations which are not refuted by the record. E. g., Voegt lin v. State, 546 S.W.2d 40 (Mo.App.1977); Arnold v. State, 545 S.W.2d 682 (Mo.App.1976). In the present case, as in Winston, our review of the record shows that appellant’s guilty pleas were made voluntarily with an understanding of the nature of the charges and that appellant is entitled to no relief by reason of the allegations in his motion. Therefore, an evidentiary hearing is not required and the trial court is not required to appoint counsel. E. g., Loflin v. State, 492 S.W.2d 770, 773 (Mo. banc 1973); Betts v. State, 493 S.W.2d 361, 362 (Mo.App.1973).

Nevertheless, we urge the Supreme Court to reconsider the present construction of Rule 27.26(h). The determination by the trial court that there are no issues of fact or questions of law raised in a pro se motion without appointing counsel to help the mov-ant to amend often works an injustice against the indigent or less articulate. “The right to file a motion under 27.26 is hollow if we determine the [movant]’s rights without ever giving him a chance to advise with an attorney in the trial court, which is the place for defendant to come forth with the facts on which he relies.” Loflin v. State, 492 S.W.2d 770, 774 (Mo. banc 1973) (Seiler, J., dissenting). As noted in State v. Garner, 412 S.W.2d 155, 157 (Mo.1967),

we cannot help but observe that assistance of counsel in preparing and filing an amended motion adequately stating all issues involved, in presenting the evidence in a clear and orderly manner, and finally in briefing the case as contemplated by applicable rules would make much easier the task of the trial and appellate courts in resolving the questions involved. Judgment affirmed.

CLEMENS, P. J., concurs.

SMITH, J., concurs in result only.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Peter HIGGINS, Defendant-Appellant.
    No. 39607.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.

      Lawrence 0. Willbrand, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Douglas A. Forsyth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Peter Higgins appeals from a judgment of conviction entered by the circuit court of St. Louis City finding appellant guilty of stealing property of the value of at least fifty dollars ($50.00). In the amended information the state also alleged that appellant had previously been convicted of attempted stealing of a motor vehicle. After a hearing as to the applicability of § 556.280 RSMo 1969, the trial court found that appellant had a prior conviction and sentenced appellant to a term of three (3) years imprisonment.

For reversal appellant contends that the trial court erred: (1) in allowing the state to proceed under the Second Offender Act because appellant’s prior conviction was a misdemeanor; (2) in denying appellant’s motion for a continuance because of the untimely filing of the amended information on the last day of trial; and (3) in failing to sustain appellant’s motion for a judgment of acquittal, and to instruct on stealing property of a value less than fifty dollars. We affirm.

In the reverse order we will consider appellant’s charges of error. Initially, we dismiss appellant’s claim of error that an instruction on stealing property of a value less than fifty dollars should have been read to the jury. This for the reason that appellant neither included the point now being urged in his motion for a new trial, nor included any authorities in his brief to support his contention; in fact, appellant did not even include this claim in the argument portion of his brief. Consequently, we hold this point was not preserved for appellate review.

The first part of appellant’s third contention is troublesome. He argues that the state failed to make a submissible case. In support of this contention he shows that the only evidence presented on the value of the CB radio taken from the victim’s car proceeded as follows:

“Q. Now, when you left your truck that morning, was the citizen band radio in the truck?
A. Yes, sir.
Q. Was it in operating condition?
A. Yes, sir.
Q. How long had you had the radio?
A. Since May of 1975.
Q. And approximately how much did it cost when you first acquired it?
A. It was a gift.
Mr. Willbrand: I am going to object what it cost to acquire. That would be immaterial and irrelevant.
The Court: Overruled. You may answer.
A. One Hundred sixty-nine dollars.”

Afterward, the victim further testified that the radio operated “as same as the first day I bought (sic) it.” This case was tried two years and one month after the date testified to by the victim as the date he received the CB as a gift.

In State v. Carter, 544 S.W.2d 334, 339 (Mo.App.1976), we held that retail price, as well as wholesale cost, does shed light upon fair market value, and that both have some relevancy in determining fair market value. Viewed in this light, appellant’s objection of irrelevancy of the retail price paid by the donor of the gift to the donee-victim cannot stand. Moreover, appellant’s objection lacks specificity inasmuch as it fails to call to the attention of the trial court the basis of appellant’s concern. Nothing contained in our disposition of the point is addressed to the possible hearsay nature of the donee-victim’s testimony as to what his donor paid for the CB radio.

Appellant’s second contention in reference to a continuance, as conceded by appellant, is addressed to the sound discretion of the court, and an appellate court will not interfere unless it clearly appears that such discretion has been abused. State v. Hill, 530 S.W.2d 50, 51 (Mo.App.1975). To put appellant’s argument into perspective, we note that on the first day of trial, prior to the voir dire examination, the state informed the trial court and appellant’s counsel of its intention to file an amended information alleging that appellant was a second offender. Appellant objected, assigning two grounds: (1) surprise, i. e., lack of sufficient time to adequately prepare his defense; and (2) legal, i. e., the prior conviction in question was a misdemeanor. We refuse to review either claim of error now being asserted by appellant because appellant flagrantly violated Rule 84.04(d), (e). Neither the point relied upon nor the argument portion of the brief cited any authorities in support of appellant’s present claims. Thus this contention is denied.

For his first point, and the final one of appellant’s contentions, appellant argues vigorously that his prior conviction on a plea of guilty to the offense of attempted stealing of a motor vehicle was a misdemeanor; consequently, the trial court erroneously permitted the aforesaid conviction to be used under the Second Offender Act, § 556.280, RSMo 1969. We disagree.

Section 556.280, RSMo 1969, enacted in 1959, provides, inter alia:

If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, . . . (Emphasis added).

In State v. Bosler, 432 S.W.2d 237, 239 (Mo.1968), our supreme court, when confronted with a similar argument, found the argument to be without merit. In Bosler, the court, in construing § 556.280, stated where • the prior conviction is for an attempt to commit a particular offense, the test is not what punishment is prescribed in the statute for attempt, but rather the punishment applicable if the attempted offense had been perpetrated. Id. Consequently, inasmuch as if appellant had consummated his attempt to steal a motor vehicle, the punishment applicable would have been imprisonment in the penitentiary, we rule this point against appellant.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Presiding Judge.

text:
    Daniel M. O’CONNELL, Appellant, v. Norma Jean LAMCZYK, Respondent.
    No. 39200.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.

      John T. Sluggett, III, Clayton, for appellant.
    James F. Koester, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff Daniel O’Connell sued defendant (formerly his wife, Norma Jean O’Con-nell) for half the money realized from her sale of real estate. The parties’ rights arise from a stipulation executed when they were divorced. The trial court denied recovery and plaintiff has appealed. We conclude the husband was entitled to half the proceeds and we reverse and remand.

The parties were divorced in 1972. They then executed a stipulation concerning custody and support of their minor children, fixing alimony and settling their property rights. Its relevant provisions, with our emphasis added:

“10. The plaintiff agrees that he will transfer and convey to the defendant by Quit Claim Deed, upon entry of the Decree of Divorce, all of his rights, title and interest in the real estate known as 1057 Wylin Court, St. Louis County, Missouri. However, plaintiff retains the right to receive one-half (¾) of the net proceeds of the sale of said property by defendant following the liquidation of any indebtedness on said real estate and payment of the expenses of such sale, when, and, if, a sale occurs. Defendant further agrees that when, and if, she remarries, or she and the aforesaid minor children cease using said real estate as their residence, said real estate will be placed upon the market for sale and the house shall be sold at a reasonable price, subject to plaintiff’s right to receive one-half (⅛) of the net proceeds of sale. Plaintiff further grants defendant the option, upon the sale of said real estate, upon any event, to retain the entire net proceeds of sale, but only in consideration for the termination of plaintiff’s duty to pay defendant the alimony payments provided herein, following the sale of said real estate.”

Stripped of language now inapplicable, the stipulation required plaintiff-husband to convey to defendant-wife his undivided interest in the family residence, but provided that if she remarried the home would be sold and he would then be entitled to half the net proceeds. The plaintiff granted defendant a conditional option to retain all of the sale proceeds if she released him from his duty to pay her alimony.

At trial on this action the case was submitted on the divorce stipulation and these stipulated facts: (1) On June 7, 1973 defendant remarried, which event terminated plaintiff’s duty to pay alimony (2) on July 25, 1973, seven weeks after defendant’s remarriage, she sold the real estate and received net proceeds of ten thousand dollars and (3) plaintiff demanded one-half of that sum but defendant refused to pay.

The trial court entered judgment for defendant. No findings of fact and conclusions of law were requested or filed. This appeal followed.

On appellate review of cases tried without a jury, the court applies the oft-cited criteria of Murphy v. Carrón, 536 S.W.2d 30 (Mo.1976). We find the trial court erroneously applied the principles of contract law to the facts in this case.

The primary rule in construing a contract is to ascertain the parties’ intention and give effect to that intention. General Amer. Life Ins. Co. v. Rogers, 539 S.W.2d 693[6] (Mo.App.1976). We accept the language used in its natural, ordinary and commonsense meaning. Wilshire Constr. Co. v. Union Elec. Co., 463 S.W.2d 903[3] (Mo.1971). The contract is viewed in its entirety and all its terms examined, for one clause may modify, limit or illuminate another. State Mut. Life Assur. Co. of Worcester v. Dischinger, 263 S.W.2d 394[5] (Mo.1953), holding that seeming contradictions must be harmonized if reasonably possible.

At the time of the divorce, the parties agreed that the distribution of the proceeds from the sale of the real estate would be handled according to the conditions set forth in paragraph ten of the stipulation quoted above. The second sentence of paragraph 10 clearly applies to the factual situation which arose when defendant remarried. It declared: “Defendant further agrees that when . . . she remarries said real estate . . . shall be sold . . . subject to plaintiff’s right to receive one-half (V2) of the net proceeds of sale.” Defendant did remarry and the property was sold. Thereupon plaintiff was restored to a half interest in the proceeds. The last sentence of paragraph 10 does not change this result since it applied to a situation that never arose, i. e., that during the marriage defendant would sell the home and thereafter terminate her right to alimony.

Defendant contends her remarriage terminated plaintiff’s duty to pay alimony and simultaneously caused her to exercise her “choice” of retaining the entire sale proceeds. She bases this contention on the phrase “upon any event” in paragraph ten of the stipulation. This phrase contradicts the tenor in paragraph ten which pertains solely to disposition of the parties’ real property. The phrase “upon any event” is legal verbiage having no significance in the context used. It is impossible to harmonize defendant’s contention with the language of paragraph ten, and to accept her argument on this basis is illogical.

We conclude the parties intended to effect a just and reasonable financial settlement. Our decision is consonant with that intent.

Judgment is reversed and the cause is remanded to the circuit court with instructions to enter judgment in favor of plaintiff and against defendant.

SMITH and McMILLIAN, JJ., concur.

      . Plaintiff’s brief urges review pursuant to Rule 73.01(d) which has not appeared in the Missouri Rules since 1974. This error is typical of the problems present in plaintiffs brief which caused it to be stricken initially. Unfortunately, the amended brief before this court is hardly more helpful.


text:
    STATE of Missouri, Respondent, v. Darryl HENDERSON, Appellant.
    No. 39314.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.

      Robert C. Babione, Public Defender, Linda Murphy, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., David T. Weir, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant Darryl Henderson has appealed his conviction for carrying a concealed weapon for which he was sentenced to five years’ imprisonment.

Two police officers were seeking defendant on another matter. They saw him enter a taxi. They followed and as the cab suddenly stopped in a vacant lot, the police ordered the two men out of the cab and searched them. One officer testified he found a loaded revolver concealed in the defendant’s waistband under a jacket. The defendant testified the weapon was not his and that it was found by the officer while searching the cab. Although the officers failed to obtain the name of the cab driver, their report and testimony indicated it was a Marcella Cab.

Defendant got continuances in October and in December to locate the cab driver. On May 19, 1977, the day of the trial, defendant moved again for a continuance to locate a witness, contending his attorney had been checking the wrong cab company, and he also requested a continuance to discharge and replace his attorney. Both motions were denied.

As trial began defendant created a disturbance with the sheriff’s deputies in front of the jury panel, exclaiming several times, “I ain’t going to be quiet.” Defense counsel moved to strike the jury panel and requested a mistrial. The motions were denied. After the jury panel was sworn for voir dire examination the jurors were escorted from the courtroom as a result of defendant’s outbursts and the court warned defendant, “. . . the only thing you are doing by this yelling and shouting is prejudicing yourself in front of these people.” Defendant then moved to disqualify the judge, and that was denied. During the voir dire examination, only one potential juror was challenged and discharged for cause because he admitted being prejudiced by defendant’s conduct.

On appeal defendant asserts the following as errors by the trial court: refusal to strike the jury panel after a disturbance occurred between defendant and the sheriff’s deputies, refusal to disqualify itself, denial of defendant’s motion for a continuance to locate a witness, and denial of defendant’s motion for a continuance to discharge and replace his attorney.

We hold each of these contentions to be without merit. Defendant’s request to strike the jury panel because of his own misconduct would be an open invitation to any defendant to engage in improper behavior to prevent his case from going to trial. State v. McGinnis, 441 S.W.2d 715[2] (Mo.1969). A mistrial is a drastic remedy to be declared only when there is a grievous error which cannot otherwise be remedied. The trial court has broad, discretion in deciding whether to grant a mistrial. State v. Beal, 470 S.W.2d 509[8, 9] (Mo. 1971). Here, the voir dire examination was a sufficient remedy to determine the effect of defendant’s outburst. Only one panel member said he would be affected and he was excused. We find no abuse of discretion in denying a mistrial.

Nor did the trial court err in refusing to disqualify itself. Pursuant to Rule 30.12, VAMR, defendant’s motion on the day of the trial was untimely because it was filed after the jury panel had been sworn for voir dire examination.

Defendant’s claim of error in denying his motion for a continuance to locate a witness is also without merit. “It is well settled that an application for a continuance in a criminal case is addressed to the sound discretion of the trial court; and that an appellate court will not interfere, unless it appears that such discretion has been abused.” State v. LeBeau, 306 S.W.2d 482[5] (Mo.1957). However, we need not reach this question. Even if we accept defendant’s allegation that his attorney investigated the wrong cab company, the failure of defendant’s motion to conform to Rule 25.08(b), VAMR, is in itself a sufficient ground for denying the motion. State v. Cuckovich, 485 S.W.2d 16[6-8] (Mo.1972). In State v. Lynch, 528 S.W.2d 454[2] (Mo.App.1975), we paraphrased that rule:

“when a continuance is sought on the ground of the absence of a witness, the request must give the name of the witness, where he resides, the probability of procuring his testimony and within what time, what facts the witness will prove, and the exercise of due diligence.”

The only facts alleged in defendant’s motion are that the missing cab driver worked for Laclede Cab Company and would help defendant’s ease. Defendant did not know the driver’s name, his residence or the probability of procuring his testimony. Although a strict application of the rule might appear harsh if an erroneous investigation actually occurred, it is warranted here because due diligence was not shown. Defendant had eight months and two continuances to locate the witness. The police report indicated the witness was a Marcella Cab driver. Until the day of trial defendant did not allege his attorney had been checking the wrong cab company. Assuming the wrong cab company was sought, the failure to locate the driver resulted from defendant’s own lack of due diligence in informing his counsel.

Finally, there was no error in denying defendant a continuance to discharge and replace his attorney. As previously noted, continuances are granted at the trial court’s discretion and are reviewable only upon abuse. LeBeau, supra, at [5]. Defendant alleges abuse of discretion because he was “forced” to trial with an attorney whom he distrusted and had no confidence in. This is insufficient. In State v. Mandina, 541 S.W.2d 716[1] (Mo.App.1976), the court stated, “. . . it is not an abuse of discretion to deny a continuance asked for on the morning of the day the case is set for trial where, as here, the accused has had more than six weeks to obtain different counsel, and accused has not been denied skilled and effective representation.” Here, defendant moved for a continuance on the morning of trial to discharge his attorney who had served for eight months.

The court in State v. Jefferies, 504 S.W.2d 6[4] (Mo.1974), utilized the trial record to determine whether the defense counsel discharged his duties diligently and in a professional manner. Here, the record shows defense counsel filed several pretrial motions, made effective use of direct and cross examination, made proper and timely trial objections and preserved his objections in a motion for new trial. This indicates defendant was not denied effective representation.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Raymond DICKERSON, Appellant.
    No. 39155.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Frank R. Fabbri III, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Raymond Dickerson has appealed his first-degree robbery conviction, for which the court sitting without a jury sentenced him to five years’ imprisonment.

While the victim was delivering pizzas about 12:30 in the morning, he parked his car at a brightly lit service station to use the public telephone. A man, later identified as defendant, walked up to him and questioned him for several minutes concerning bus schedules and then asked the victim for a ride, which was refused. As the victim approached his car, the man pulled a knife demanding and receiving his money. The robber then drove away in the victim’s car and shortly thereafter he gave police a detailed description of the robber as to height and clothing. (These details were later confirmed by the arresting police officer.)

Defendant was arrested about an hour after the robbery when police saw him driving a vehicle matching the victim’s description. The victim was asked to come to the police station to identify a suspect found in the car and an hour or so later was shown the defendant at a one-on-one showup. This occurred immediately outside the jail cell with the defendant in handcuffs. The victim identified defendant as the robber and later identified him at trial and also testified that he had identified him at the showup.

On appeal, defendant’s sole point challenges the trial court’s denial of his motion to suppress identification because of an unnecessarily suggestive showup. He contends the totality of the circumstances and the lack of an independent basis for identification, combine to provide a situation necessarily conducive to mistaken identity.

In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1966), the Supreme Court held a pretrial confrontation could be “so unnecessarily suggestive and conducive to irreparable mistaken identification [as to be a denial of constitutional] due process of law.” However, a determination of unnecessary suggestiveness does not mandate exclusion, but rather leads to the “central question” of “whether under the ‘totality of the circumstances’ the identification was reliable.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). The factors to be considered in evaluating reliability include: “The opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.” Biggers, supra, at l.c. 199, 93 S.Ct. at 382.

Missouri courts have adopted a three-fold test of the same scope as Biggers requiring . . consideration be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification.” State v. Parker, 458 S.W.2d 241[2] (Mo.1970). Under this test, the threshold question is the propriety of the confrontation. State v. French, 528 S.W.2d 170[4, 5] (Mo.App.1975). If the confrontation proves suggestive, an alternative approach employing parts (1) and (3) of the Parker test is available to remove any taint from the confrontation. The alternative approach first requires the presence of an independent basis of identification, which is determined by considering the reliability factors enumerated in Big-gers, supra. State v. Davis, 529 S.W.2d 10[5, 6] (Mo.App.1975).

We conclude the showup was not unnecessarily suggestive. “The admission of evidence of a showup without more does not violate due process.” Biggers, supra, 409 U.S. at l.c. 198, 93 S.Ct. at 382. Defendant contends the showup was suggestive because it occurred in front of the cell while he was in handcuffs, it occurred at an early hour of the morning, and the victim was told he would be viewing a suspect found in his stolen car.

Case law refutes defendant’s contentions. The fact defendant was handcuffed when confronted with the victim and was in custody of the police does not necessarily render the identification impermissibly suggestive. French, supra, at [6]. In State v. Dayton, 535 S.W.2d 479[11-12] (Mo.App.1976), the court held an early morning lineup is not suggestive. A police officer’s statement to a robbery victim requesting her to identify a person in custody who fit the description of the robber was not unduly suggestive. State v. Armbruster, 541 S.W.2d 357[4] (Mo.App.1976). Analogously, the policeman’s statement here that a suspect was found in a car matching the victim’s description of it was not impermissi-bly suggestive. Finally, only suggestions which result in a substantial likelihood of misidentification invalidate confrontations, Dayton, supra, at [12], and we do not believe merely informing the victim of his car’s location had such an effect.

Even if the showup was suggestive, the alternative approach removes the taint from the confrontation. The defendant was positively identified at trial, and an examination of the Biggers factors of reliability indicates an independent basis of identification was present. The victim had an excellent opportunity to view the robber because the crime occurred in a brightly lit service station, there was a conversation of several minutes’ duration, and some of the conversation was face-to-face. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243[5], 53 L.Ed.2d 140 (1977) held a witness’ two-to-three-minute observation was sufficient. A high degree of attention is indicated here by the victim’s testimony he was concentrating on the defendant, who stood only a few inches away with a knife. Although the victim’s prior description failed to mention defendant’s severe hearing problem, it was reasonable accurate, and the trial court commented that defendant occasionally demonstrated a greater ability to hear than at other times. The time between the crime and the confrontation was only three hours; a delay of two days has been held permissible. Manson, supra, 97 S.Ct. 2243 at [5].

Defendant finally contends the showup was improper because it was feasible and more reliable to conduct a lineup the following morning. The state is not obligated to hold a lineup and this point is without merit. State v. Haselhorst, 476 S.W.2d 543[3, 4] (Mo.1972).

In summary, application of the Parker test indicates the trial court did not err in denying defendant’s motion to suppress identification. The showup was not unnecessarily suggestive, but even if it was, the alternative approach removed any taint.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Robert Lee INGRAM, Appellant.
    No. 39087.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.
    Robert C. Babione, Public Defender, James E. Sullivan, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Katherine Marie Krause, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

A jury convicted defendant of second degree murder and assault with intent to kill with malice. He was sentenced to consecutive prison terms of 35 and 10 years. Defendant appeals, alleging the trial court erred (1) in denying his motion for acquittal on the murder charge and (2) in refusing to instruct on lesser included offenses.

We first consider defendant’s motion for acquittal on the murder charge because of allegedly insufficient evidence. Defendant contends the evidence failed to show a common intent and his affirmative participation in the homicide. We consider the facts in the light most favorable to the state. State v. Chase, 444 S.W.2d 398[1] (Mo.1969).

The jury could have believed that on the evening of February 20, 1977 defendant, Keith Hayes, Mark Hayes and another companion were ordered off the Kingsland Manor Hotel premises by Richard Jones, a security guard. The four men returned later, each armed with a pistol, and knocked on the door of the manager’s room in search of Jones. When police officer Robert Porter answered the door, Keith Hayes flourished his gun and motioned Porter out into the hall. He forced Porter to walk down the hall and to place his head and hands against the wall. Defendant and the other two men followed. The group had waited for several minutes when Jones rounded the corner. Keith Hayes and Mark Hayes each fired a shot at Jones. Meanwhile, officer Porter drew his gun and fired at Mark Hayes. All fled except defendant, who exchanged shots with Porter and then ran limping to the nearest exist. Jones was dead on arrival at the hospital.

To render a defendant a participant in a crime, he must ássociate himself with the venture in some fashion and take some affirmative action. State v. Jackson, 519 S.W.2d 551[2 — 9] (Mo.App.1975). Here defendant’s activity is sufficient to support his conviction. He accompanied Hayes and the others to the hotel with guns. Defendant remained with the others while they lay in wait for Jones. Furthermore, after the others had fled, defendant remained on the scene long enough to exchange shots with officer Porter. Presence, companionship and conduct before and after the offense are circumstances from which one’s participation can be inferred. State v. Hudson, 508 S.W.2d 707[1-4] (Mo.App.1974). The state made a submissible case on both charges.

Defendant next contends the trial court erred in refusing his proffered instructions on assault with intent to kill without malice and on assault with intent to do great bodily harm. He admits the trial court is not compelled to instruct on included or lesser offenses. State v. Washington, 357 S.W.2d 92[6-8] (Mo.1962). He argues, however, that such a rule casts on . defendant the burden of proving the lesser offenses in violation of his right to due process.

In support of this contention, defendant cites Mullaney v. Wilbur, 421 U.S. 699, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), where the court struck down the Maine rule requiring a defendant charged with murder to prove he acted in the heat of passion in order to reduce the homicide to manslaughter. Our case is different. In Mullaney the offending rule shifted the burden of persuasion as well as the burden of producing evidence from the state to defendant. Here, to be entitled to an instruction on a lesser, included offense, there must be some supporting evidence but the burden of persuasion remains on the state. The Supreme Court recognized the distinction in Mullaney at l.c. 701, 95 S.Ct. at 1891, holding: “Many states do require the defendant to show that there is ‘some evidence’ indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt . . . Nothing in this opinion is intended to affect that requirement.”

In our case the state bore the ultimate burden of proof on the issue of malice. Instruction No. 9, MAI-CR 6.22(a) so charged the jury in both affirmative and negative terms.

Alternatively, defendant contends the trial court erred in refusing his proffered instructions because they had evidentiary support. Not so. The state’s evidence showed defendant came to the scene of the crime armed with a pistol. Officer Porter first fired at Mark Hayes and then as defendant’s companions fled, Porter and defendant exchanged shots. Defendant’s defense was alibi.

In State v. Webb, 518 S.W.2d 317[4-6] (Mo.App.1975) the court held malice is presumed where the assault is with a deadly weapon and no offsetting circumstances are presented.

The evidence here is similar and no evidence of countervailing circumstances was offered. The state’s evidence proved the assault was committed with a deadly weapon for the purpose of killing officer Porter. Defendant presented no evidence to prove he engaged in the assault for any purpose or without a deadly weapon. On this record, defendant was either guilty of assault with intent to kill with malice or he was not guilty of any offense. See State v. McCoy, 530 S.W.2d 8[4] (Mo.App.1975). Defendant presented no evidence supporting the submission of an instruction on assault with intent to kill without malice or assault with intent to do great bodily harm. Compare State v. Watson, 364 S.W.2d 519 (Mo.1963). Accordingly the trial court did not err.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.