author: RENDLEN, Judge.

text:
    In re the MARRIAGE OF Sandra Lee ZIGLER, Petitioner-Appellant, and Terry Lee Zigler, Respondent.
    No. 36375.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 28, 1975.
    Speer, Herzog <& Ponfil, Theodore D. Pon-fil, Alan G. Gerson, John J. Gerst, Evans & Dixon, Henry D. Menginin, St. Louis, for appellant.
    William R. Gartenberg, Clayton, for respondent.
   RENDLEN, Judge.

This appeal is from the award of custody of a minor child incident to a judgment dissolving the parties’ marriage. Neither challenges the judgment of dissolution; however, petitioner-mother appeals from that portion of the judgment awarding custody of the four year old son to the respondent-father.

Appellant’s assignments of error may be summarized as follows: The trial court erred in (1) granting custody of the child of tender years to the father as there was insufficient credible evidence to find the mother lacked emotional or mental stability to serve as custodian; (2) admitting portions of the Physician’s Desk Reference and allowing testimony relative thereto without proper identification or foundation; and (3) giving insufficient weight to the testimony of the social worker whose child custody study was made and submitted under § 452.390, RSMo 1973.

As provided by Rule 73.01(3), V.A. M.R., on appellate review in this non-jury case, “[t]he court shall review the case upon both the law and the evidence as in suits of an equitable nature. Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” While the judgment of the trial court should not be set aside unless erroneous, “such is not a mandate prescribing judicial ‘blindness’ because in reviewing this case de novo this court must be cognizant of the further duty to reach its own conclusions based on the law and the evidence presented by the case.” Powers v. Powers, 527 S.W.2d 949 (Mo.App.1975). The court is to enter such judgment as the trial court should have entered. Glaves v. Glaves, 523 S.W.2d 169, 172[8] (Mo.App.1975). In this frame of reference we examine the evidence.

Appellant Sandra Zigler, 18 years of age, and respondent Terry Lee Zigler, 21 years of age, sometimes referred to herein respectively as mother and father, were married in St. Louis County in September, 1969, and to that marriage a son Casey Lee was born March 10, 1971. In January, 1973, the couple separated and suit for dissolution was filed in April of that year. The court, with the parties’ consent, issued an order pen-dente lite, granting the mother custody of the child with temporary custody to the father every other weekend. The mother was awarded $30 a week for temporary child support. At all times since birth, except for periods of visitation, the child has been with his mother.

At trial the parties stipulated to a division of marital property and though the mother asked maintenance for herself of one dollar per year, the father sought none. They agreed the father would pay child support of $30 per week for child support if the mother were awarded custody of their child. The comments of respondent’s attorney indicated the suggested weekly payment was based upon certain financial statements, which unfortunately were not made part of the record.

Appellant, 23 years of age at the time of trial, was employed as a medical secretary in the Department of Preventive Medicine at the Washington University School of Medicine where she has worked for two years. She earns a monthly gross of $475, from which she nets $342. Temporarily residing with her parents she leaves the child with a regular babysitter during working days and plans to rent a two bedroom apartment in St. Louis County in the Kirkwood-Webster Groves area if awarded custody of the child. She has arranged to send him to Jack and Jill Nursery, a Montessori school on the outskirts of Kirkwood. The child is in good health and appellant personally supervises his diet, tends his personal needs, and provides his daily care, including religious and secular instruction.

Respondent, 25 years old at the time of trial, is employed as a draftsman by Federal Pacific Electric where he has worked for eight years. His salary is $528 per month gross; in addition, he received overtime pay of approximately $1,500 in 1973, which may not repeat in subsequent years. Respondent’s Exhibit 1, a financial statement and income-expense statement, was not submitted to us on appeal.

Though each party accused the other of fault in the marriage and questioned his or her suitability to care for this child, the record discloses both manifest a sincere interest in the child’s well-being and proof of misconduct or unsuitability was insufficient to disqualify either as custodian.

Appellant’s claims of respondent’s excessive drinking and lack of attention to the health and other needs of the child during visitation periods are somewhat vague. She asserts his drinking frequently culminated in drunkenness which he admitted happened on several occasions. Nevertheless, this and evidence of other misconduct was insufficient to show respondent unsuitable as a parent and custodian. Similarly respondent’s complaints against appellant as an overpossessive wife and mother, jealous of any activity on his part with other women or his friends, are insufficient to show her unsuited as custodian of the child. The evidence indicated respondent’s parents and immediate family were more supportive and closely knit than appellant’s; yet both homes are acceptable environments for the child.

The trial court awarded custody of the child to respondent finding “that the credible evidence showed that respondent was a much more stable person than petitioner.” This brings us to the only substantial challenge to appellant’s fitness as custodian; namely, respondent’s allegation as to her mental and emotional condition. Respondent complained that appellant displayed fits of temper, sometimes shouting or screaming at the child, was depressed and cried on numerous occasions, especially in the final months of the marriage. Respondent’s other witnesses testified appellant was possessive and jealous of her husband’s actions toward other women and seemed to transfer her affections to the child. Appellant on the other hand testified that her mental and physical health was good and this was corroborated by her doctor and her mother.

Respondent stated his wife seemed tense, upset and nervous, but then conceded she was “more or less shy,” admitting that the parties had arguments regarding money matters that got out of hand. He stated “They could have been settled easily but I guess, we’re hardheaded.” (Emphasis added). He acknowledged there was a failure of communication and he did not know how to reach his wife, which as he described “was probably my fault, I don’t know.” According to respondent, during this period appellant stated she wished she were dead, though this was the only instance in which she made such statement. It is significant that when prompted by leading questions of his attorney, suggesting that his wife’s mental health was the reason he wanted custody of the child, respondent drew back from that position and stated “I really can’t say mental health.” (Emphasis added).

Respondent’s allusions to appellant’s so-called mental health problems were substantially refuted by subsequent professional testimony. In January, 1973, appellant quite understandably sought the marriage counseling service of Dr. Fritz Henn, psychiatrist at Barnes Hospital. During that initial visit he suggested the husband as well as the wife should come to see him. The doctor contacted respondent-husband but they could not agree on a time for an appointment and his office notes showed “the husband will not come in.” Immediately thereafter the parties separated. Respondent conceded the appointment was not kept and that the subsequent separation and dissolution ended the effort.

Dr. Henn testified as to Sandra Zigler’s condition, describing it as “situational distress" which he said was “in essence, [a] normal reaction to the stress situation” she was then experiencing. He further testified “She did not suffer, in my opinion, any depressive reaction of any kind at that point.” The doctor and Sandra Zigler agreed that since the parties had separated, there was no further need for consultation. In January, 1974, before the trial in April, he found she was “concérned about the court trial, feeling somewhat anxious of the circumstances surrounding this proceeding” and she “suffered from no psychiatric illness.” (Emphasis supplied). The doctor saw Sandra again February 24, 1974, and found though she was concerned about the pending lawsuit, she was “under very good control,” performing well at work and she required no medication. In the doctor’s opinion “it would be fair to say Sandra at no time had professional need of a psychiatrist.”

At the time of separation respondent testified he found certain pills in the medicine cabinet which he disposed of and would have us infer this establishes his wife’s emotional instability. The evidence falls far short of so doing, as he did not know the nature of the “pills,” their purpose, or anything as to their use. At the time the parties were enduring the most difficult period of marital discord (about one week before the separation when appellant first sought marriage counseling), Dr. Henn prescribed for her a temporary low dose sedative known as valium, but not more than ten pills. This was the only evidence of probative value on the subject.

On May 13, 1974, the trial court entered its decree dissolving the marriage and awarded custody of the child to respondent. On appellant’s motion to vacate, reopen, correct, amend or modify, the court reopened the trial,, permitting testimony of John Stuart, domestic relations worker of the Circuit Court of the County of St. Louis, relative to a child custody study which he had prepared pursuant to § 452.-390, RSMo 1973.

Stuart testified he interviewed appellant and respondent in his office, visited appellant’s home where the child was residing, spoke briefly with the maternal grandparents, and he gathered information from Dr. Henn, psychiatrist, Dr. Eto, pediatrician, and Dr. Berdle, pediatrician. Stuart recommended that custody of the child should remain with the mother. His Evaluation and Recommendation to the court contains the following: “The child responds well in his present environment. The child and mother respond well to each other. Due to the child’s age, need for maternal love at this time, it would be in the child’s best interest to allow him to. reside with his mother. The obvious need for father will become more prevalent in the future. Both parents should realize and work toward the goal of the child being with the father as much as possible.”

He stated that a child of this age “is looking for a strong maternal response,” that “[cjonsistency is a necessary component in an individual’s life, particularly at this age, because they (children of this age) are learning to cope with certain life situations which will have ramifications in their personality the rest of their life . In terms of removing the child from this situation we are going to ask the child not only to deal with immediate loss of his mother, which at this point, would be somewhat traumatic, but to also deal with a new relationship . . with his father.” He points out that to change custody would require psychological compensation for loss of the mother. Stuart did not testify that children of this age should never be deprived of the mother, but that, “In this case, where we have a very consistent pattern with the mother, where there has been normal progress, there is love, security and nurturance, there is no history indicated to me to separate the child from the mother

Despite the testimony of John Stuart and Dr. Henn the court relied heavily on the testimony of lay witnesses as “to unstable conduct on the part of appellant.” On July 5, 1974, the court re-entered its decree of May 13 granting custody of the child to respondent.

For her principal point on appeal appellant contends the trial court erred in granting custody to the father because the best interests of the child required that custody be given to the mother and because there was insufficient credible evidence to find that the mother lacked emotional or mental stability to serve as a custodian. We are not unaware that one of the most difficult duties facing trial courts is that of custodial award of minor children, and while the judgment of the trial court should not be set aside unless erroneous, the record here requires reversal.

The facts presented no clear choice between a “good” and a “bad” parent; neither was guilty of serious moral impropriety, negligence, or child abuse; nevertheless, we perceive important distinctions. Having in mind the age of the minor child and the absence of special reasons for changing custody, we find the interests of this child would best be served by placing him with the mother; being mindful that ordinarily “a mother is deemed to be the one best able to care for a child of tender years.” S. G. E. v. R L. J., 527 S.W.2d 698 (Mo.App.1975) (K.C.D. # 27516, p. 7); Eissler v. Eissler, 468 S.W.2d 217, 222[6] (Mo.App.1971). “This is not a presumption of law but a recognized fact of life based on human experience.” McCallister v. McCallister, 455 S.W.2d 31, 34[2] (Mo.App.1970). “Any departures from that usual award of custody have been described by this court . as ‘aberrations from normalcy.’ [Wjhere such variance occurs, ‘there must be a finding, evidentially supported, that the best interests and welfare of the children are served by a departure from the normal pattern of family relationships.’ ” S. G. E. v. R. L. J., supra; Baker v. Baker, 475 S.W.2d 130, 133[2] (Mo.App.1972). Such finding by the court below was not supported by the evidence.

Appellant-mother has been the primary caretaker and custodian of the child for all of his four and a half years, responsible for his health, personal and educational needs. She has had sole custody (except for brief visitation periods) during the two years and ten months since the separation. We consider it significant that respondent allowed her to retain custody of the child at the time of separation in January, 1973; consented to the pendente lite order, continuing custody with the mother in April, 1973; and at the commencement of trial on the merits consented to a child support award if custody were granted to the mother; and finally, respondent did not assist the court with an appellate brief articulating his position nor refuting appellant’s contentions on the issues here.

Since the separation, appellant has maintained a proper home environment, supported and cared for the child, and has secured a suitable day-care arrangement for him. Further, appellant has made concrete plans for the child’s continuing educational needs by enrolling him in a Montessori School in Kirkwood, as contrasted to respondent’s efforts who admitted he had not investigated any nursery schools near his home.

We are impressed by the testimony of Dr. Henn concerning appellant and that of John Stuart, recommending custody remain with her which emphasized the value of maintaining consistency in the life of the child. We are satisfied that the charges as to appellant’s emotional deficiency were short on proof, lacking in substance and adequately refuted.

Our reticence to reverse this judgment is outweighed by our heavy primary burden to determine custodial grants from the standpoint of what is best for the child. We find that the trial court erred in holding the best interests of the child would be served by granting custody to respondent.

In light of this determination, it is unnecessary to reach appellant’s other points. The judgment is reversed and the cause remanded with directions for the court to enter a judgment awarding the general care, custody and control of the minor child to the appellant Sandra Zigler and further that the court enter a judgment that the respondent Terry Lee Zigler may have temporary custody of said minor child every other weekend from 9:30 a. m. on Saturday to 7.30 p. m. the following Sunday, on alternative major holidays (including December 24 and December 31) from 9:30 a. m. to 7:30 p. m.; for two hours on Casey’s birthday; every father’s day; and for three weeks during the summer vacation period, on condition that the respondent Terry Lee Zigler give six weeks’ advance written notice of his intention to exercise the right to temporary summer custody and indicating where the child will be during the period of such three week summer vacation. Respondent shall provide all transportation for custodial transfers and the appellant Sandra Lee Zi-gler shall have rights of reasonable visitation when the minor child is with the father Terry Lee Zigler during such three week summer vacation period. The cause shall be open for further evidence on the issue of child support and the court shall make such orders for support as may be proper thereon.

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

      .The visitation and temporary custody provisions set out here are patterned from those provided appellant in the trial court’s order.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Betty LaVonne Tagtmeyer MARSHALL, Appellant, v. ESTATE of Joseph A. MARSHALL, Deceased, and Susan Ayres Marshall, Executrix, Respondents.
    No. KCD 27120.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      A. Lamkin James, James & Butterfield, Marshall, William F. Brown, Sedalia, for appellant.
    Newton R. Bradley, Robert L. Langdon, Bradley, Skelton & Schelp, Lexington, Harris & Reid, Marshall, and Bradley, Skelton & Schelp, Lexington, of counsel, for respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Action for specific performance of ante-nuptial agreement.

The agreement, executed July 27, 1972, between Betty LaVonne Tagtmeyer, first party, and Joseph Ayres Marshall, second party, immediately prior to their marriage, provided:

“WHEREAS, the parties contemplate marriage and both are severally possessed of real and personal property, each have children of former marriages and desire to limit, determine, regulate, define and control the interest which each of them may have in the estate and property of the other and,
“WHEREAS, this agreement is entered into with full knowledge of each party of the nature, extent and probable value of all real, personal and mixed property interests of the other party after full disclosure thereof by each party to the other, as set out in Exhibit ‘A’ attached hereto and incorporated herein by reference and,
“WHEREAS, possessed of said knowledge and without any coercion, duress, intimidation or misrepresentation of either party acting on the other, with complete freedom of choice and with the full understanding that the provisions hereinafter made for each other are substantially less than probably would accrue absent this agreement, and acknowledging that the provisions hereinafter made for each other are just, fair and reasonable under all the circumstances, the parties hereto agree as follows
“1. First Party shall have the full right, power and authority in all respects as if she were unmarried to use, enjoy, give, pledge, sell, mortgage, convey, lease and otherwise control, manage and deal with all of her real, personal and mixed property rights, interests and estate, either now or hereafter acquired, including the right and power to control and dispose of same by last will and testament.
“2. [Paragraph 2 provides for identical rights in Second Party.]
“3. Each party agrees that in the event the other desires to mortgage, sell, convey, give, lease, pledge or otherwise deal with his or her separate property, * * * the other will execute such in-
struments and documents as may be necessary or required.
“4. In the event of the death of Second Party, First Party shall have no interest in any property, real, personal or mixed either now owned or hereafter acquired by Second Party, by way of claims, demands, inheritance, succession, widow’s support allowances, dower, homestead, exempt property and any and all other statutory and inheritance rights of a surviving spouse, including the right of election of First Party as surviving spouse to take against Second Party’s last will and testament, but all such rights are expressly waived hereunder, EXCEPT that First Party shall be entitled, in lieu thereof, to the residence dwelling of the parties on the date of Second Party’s death and the sum of $25,000.00, * *.
ilg * * *
“6. It is the agreement and understanding of the parties that their respective rights to each other’s property and estate shall be and is hereby expressly fixed and determined by this agreement and is binding upon their heirs, legatees, devisees and personal representatives.”

Exhibit A to the agreement showed real and personal property belonging to Betty LaVonne Tagtmeyer valued at $116,500, including a “residence dwelling,” 2616 Anderson, Sedalia, Missouri, valued at $35,000, and real and personal property belonging to Joseph Ayres Marshall valued at $358,220, including a residence on 80 acres of land in Saline County, Missouri, valued at $25,000.

Joseph Ayres Marshall died testate September 18, 1972, leaving all his property to his children, Joseph Daniel Marshall and Susan Ayres Marshall, and Letters Testamentary were granted to Susan Ayres Marshall.

On March 9, 1973, Betty LaVonne Tagt-meyer Marshall filed, in the Probate Court of Saline County, Petition For Specific Performance, Or In The Alternative, For Allowance of Marital Rights, by which she prayed “that specific performance of the antenuptial contract * * * be ordered * * * by allowing a claim in favor of the petitioner against the estate in the sum of $60,000.00, being the cash amount provided for in said contract plus the reasonable value of the dwelling * * *; or in the alternative, that she be allowed all of her marital rights as the widow of the decedent * * ⅜ tf

The probate court ordered the executrix to pay Betty LaVonne Tagtmeyer Marshall $60,000, and the executrix appealed to the circuit court.

In addition to the foregoing facts, plaintiff offered the testimony of herself and three other witnesses:

Mrs. Marshall established that she lived at 2616 Anderson, Sedalia, Missouri, and it was conceded that the parties lived in her home during her marriage to Mr. Marshall.

Ola Wright was a mutual friend of Mr. and Mrs. Marshall. On the night they became engaged, about two or three weeks before their marriage, they were at Mrs. Wright’s home. Mr. Marshall told her that he did not intend to live on his farm but would live in Sedalia. He was going to try to find a home large enough to accommodate both her family and his family because the house she was living in was inadequate. After they were married, on one occasion Mr. Marshall asked if she knew of a five-bedroom house he could purchase and, on another, he told her they had found a house they liked but it was too far out in the country and they were now trying to see what they could do about enlarging Betty’s house.

Delores Smiddy, a real estate agent, had shown Mr. and Mrs. Marshall several homes ranging in price from $37,500 to $69,500. The only one Mr. Marshall liked was too far out to be driving into school for the children. She was familiar also with the home where Mr. and Mrs. Marshall were living, Mrs. Marshall’s home in Sedalia, which was a four-bedroom home.

Dianne Overmeyer was also a mutual friend of Mr. and Mrs. Marshall. One night after they were married they had been house hunting and came over to visit. They were discouraged because they had not been able to find a suitable home and Mr. Marshall said he thought he would remodel Betty’s house instead of buying a new one.

The circuit court’s judgment entry recited:

“The court * * * finds that petitioner and decedent, on July 27, 1972, immediately prior to their marriage, entered into a valid and binding written antenuptial agreement and that among other things, it was agreed therein that upon the death of Joseph A. Marshall, Betty LaVonne Tagt-meyer Marshall, claimant, as his widow, would receive from his estate Twenty-five Thousand Dollars ($25,000.00) in cash and the residence dwelling of the parties on the date of death of Joseph A. Marshall, deceased, in lieu of all claims, demands, inheritance, succession, widow’s support allowances, dower, homestead, exempt property and any and all other statutory and inheritance rights of a surviving spouse, including the right of election of First Party as surviving spouse to take against Second Party’s last will and testament, and the court finds that said antenuptial agreement was not altered, amended or changed subsequent to its execution by any subsequent agreements or actions of the parties, and the court finds that the residence dwelling of the parties on September 18, 1972, the date of the death of Joseph A. Marshall, deceased, Second Party in the antenuptial agreement, was the residence of claimant, located at 2616 Anderson, Sedalia, Missouri, in which decedent had no interest at the date of his death, and the court, therefore, finds that claimant is entitled to specific performance of the antenuptial agreement and thus is entitled to receive the sum of Twenty-five Thousand Dollars ($25,000.00) in cash from the estate of Joseph A. Marshall, deceased, under the terms and provisions of the antenuptial agreement between the parties; Claimant’s petition in all other respects is denied and the court finds said issues in favor of defendant-appellant estate.

“IT IS THEREFORE ORDERED AND ADJUDGED that claimant Betty LaVonne Tagtmeyer Marshall have and recover the sum of Twenty-five Thousand Dollars ($25,-000.00) from the Estate of Joseph A. Marshall, Deceased, together with interest from August 3, 1973.”

Appellant contends and argues that the court erred: (1) in failing to consider mutuality of consideration, that is, the relinquishment of the widow’s rights on the one hand and the husband’s obligation to convey a dwelling house of the parties on the other; (2) in utilizing as its sole ground that the dwelling house of the parties had not been acquired at the husband’s death, and in not taking into account the construction the parties themselves put upon their contract, that is, that it was the husband’s intent to acquire a home for them in addition to their previous dwelling, and in not holding that their additional home was part of the consideration intended; (3) in viewing the contract, particularly the provision for “dwelling house of the parties,” retrospectively rather than prospectively as viewed by the parties when they executed the contract; (4) in not allowing equitable compensation for the value of the property understood to be the “dwelling house of the parties,” as contemplated by the parties and thereby failing to take into account the equitable rights of the parties under the circumstances.

Additionally, appellant argues (1) that since mutuality of consideration is necessary to a contract, 17 Am.Jur.2d, Contracts, Section 105, to allow only part of the expressed consideration in the attempted agreement is “not only to alter its terms but here will reduce the consideration to * * ⅜ such an extent * * * that it is questionable if such contract meets the requirements for an adequate and fair consideration ⅜ * * (2) that as a matter of the parties’ own construction of their agreement, “it is obvious, from all the testimony, that before and after the marriage the parties planned their residence dwelling,” and that such parol evidence should be utilized “to resolve an ambiguity so as to determine the true intent of the parties”; (4) that even though Mr. Marshall’s “death intervened and made complete performance impossible, that fact does not prevent the court from granting relief in the nature of pecuniary compensation.”

The insurmountable difficulty in all of appellant’s contentions and arguments is the written antenuptial agreement between Betty LaVonne Tagtmeyer and Joseph Ayres Marshall.

The agreement was a valid and binding contract. This, Mrs. Marshall conceded when she sought to have it performed as opposed to having it voided or set aside. Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707 (1950). And under the law, such agreements are valid and binding if there is full disclosure of the nature and extent of the right waived and if that which is given to the waiving party is fair consideration under all the circumstances. § 474.220, RSMo 1969, V.A.M.S.

Mrs. Tagtmeyer was possessed of substantial wealth in her own right, and she and Mr. Marshall evidenced their mutual disclosures by the recitals in the agreement and the inventories of their separate properties which they made a part of their agreement. When, as thus shown in this case, the surviving spouse had full and actual knowledge of the other’s means and the extent of his property, or knew facts sufficient to charge her with such knowledge, then the antenuptial contract is not void on grounds the provision for her is inadequate or disproportionate to the deceased spouse’s means, or less than she would have received in absence of the agreement. Estate of Youngblood v. Youngblood, 457 S.W.2d 750 (Mo. banc 1970); McQuate v. White, 389 S.W.2d 206 (Mo.1965).

Mrs. Marshall failed to show that she was entitled under the antenuptial agreement to anything other or more than the $25,000 awarded her by the court. The agreement which she prayed to be enforced provided in unmistakable and unambiguous language that at the death of her husband she was to receive $25,000 and “the residence dwelling of the parties on the date of [his] death.” There is evidence tending to show that the parties to the agreement contemplated establishment of a residence other than that of either party at the time the agreement was executed. However, it is beyond question that no such residence dwelling was acquired and that the residence dwelling of the parties at the time of Mr. Marshall’s death was Mrs. Marshall’s house in Sedalia, Missouri. Accordingly, the court awarded Mrs. Marshall all the performance that could be ordered. She received full performance in the sum provided, $25,000, and she already had the residence dwelling of the parties. Lack of a provision in the agreement which would have covered the situation as it existed upon Mr. Marshall’s untimely death did not render the contract ambiguous. Where no ambiguity exists in the written agreement, the court cannot go outside the agreement and make a new contract for the parties. Fisher v. Miceli, 291 S.W.2d 845 (Mo.1956); Bakelite Company v. Miller, 372 S.W .2d 867, 876 (Mo.1963); Ackerman v. Globe-Democrat Publishing Co., 368 S.W.2d 469, 479[9J (Mo.1963). The same is true with respect to equitable compensation for any value of property “understood” to be the dwelling residence of the parties. Carr v. Lackland, 112 Mo. 442, 20 S.W. 624 (1892).

Judgment affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. James Edwin COLTON, Jr., Appellant.
    No. KCD 27585.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.

      Gerald D. McBeth, Ewing, Ewing, Carter, Wight & Woodfill, Nevada, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
   SOMERVILLE, Judge.

Defendant, charged with arson of a motor vehicle in violation of Section 560.025, RSMo 1969, was found guilty by a jury as charged and his punishment was fixed by it at two years confinement in the Department of Corrections.

Defendant’s premise for appellate relief is threefold: (1) that the trial court erred in admitting into evidence a confession he made to law enforcement personnel “without requiring the state to introduce sufficient evidence of the corpus delicti of the crime of arson”; (2) that the trial court erred in admitting into evidence an extrajudicial oral statement he made to Lonnie Loyd, a private citizen, for the reason that Lonnie Loyd “was acting as a posse comita-tus” at the time the statement was given, and was therefore required to give him a “Miranda” warning but failed to do so, and for the further reason that the statement was involuntary; and (3) that the trial court “erred in not granting” his “motion for judgment of acquittal,”

The following evidence deemed pertinent and dispositive of all the issues raised by defendant, identified with the various witnesses from whom adduced, is revealed by the record. Lois Stewart was the owner of a 1964 Mercury Comet automobile which she had purchased from her brother on September 8, 1973. Thereafter, on the same day, she “was trying it out” on Highway 71 in Vernon County, Missouri, when it malfunctioned. Faced with this dilemma, she left the car on the “side” of Highway 71 and caught a ride with a passing motorist to her home in Rich Hill. She next saw her car some three or four days later at “Gar-wood’s Wrecker” in Rich Hill. When she saw her car at “Garwood’s Wrecker” she observed that the interior of the car was badly burned and the seats, battery, and a spare tire were missing from it. Subsequent to the occasion just mentioned, she saw the defendant, at “Stocker’s Cafe in Nevada”, remove from the trunk of his car a spare tire which she identified as having been in the trunk of her 1964 Mercury Comet.

Larry Wilson lived about one mile west of Highway 71. On the night of September 8th or 9th, 1973, while driving in a westerly direction from his home, he saw the Stewart Mercury Comet parked by the side of the road he was traveling on with a white 1964 Chevrolet “sitting right in front of it.” Two people were standing by the Chevrolet. He could not identify the two people but thought one was a man and one was a woman. After traveling on west some two or three miles, Wilson turned around and came back to where he had observed the parked cars. Upon his return he observed that the Mercury Comet was on fire. He then saw the Chevrolet “come out of there like a scalded rat.” Wilson gave chase to the Chevrolet and got close enough to obtain its license number. He reported the license number of the Chevrolet to the Missouri State Highway Patrol. Wilson then returned to the scene and observed that the Mercury Comet’s “gas tank was propped open with a beer can stuck in there.”

E. J. Newman, a member of the Missouri State Highway Patrol, received a call about 1:00 A.M. on September 8th or 9th, 1973, directing him to check out a burning car. Upon arriving at the scene, he found the Stewart Mercury Comet “still smoldering, smoking”. No one was present at the scene when he arrived. Newman stated that the fire had been confined to the interior of the car. He further testified that around the neck of the gas tank he found a “charcoal-type” material, “like it had been tried to be set on fire, to the mouth of the gas tank. . It was just a little piece of paper, there wasn’t much of it. It looked like it burned to a certain extent and then it went out.” While conducting his investigation, Newman noticed that the front seats and battery were missing from the Mercury Comet, and that there was no spare tire in the trunk. Newman had the car towed away by “Garwood Wrecker”. Newman also testified that Larry Wilson gave him the license number of a car which Wilson had chased from the scene and the license number checked out as being the number of a license issued to David Loyd.

Lonnie Loyd, brother of David Loyd and boy friend of Lois Stewart, testified that subsequent to the burning of the Mercury Comet he had occasion to be talking “about a gun” with John Eador, a member of the Nevada police force. During the conversation, Eador indicated to Lonnie that he “heard” Lonnie’s brother David had stolen a car, burned it, and had been observed at the scene where the car was burned. According to Lonnie, Eador told him that David Loyd’s car was observed at the scene of the crime. Lonnie expressed disbelief that his brother was involved in the crime and went to him and made inquiry. David advised Lonnie that the car observed fleeing the scene belonged to defendant. Lonnie therefore had reason to suspect that defendant had perpetrated the crime and sought him out. Finding the defendant at Harry’s Truck Stop in Nevada, Lonnie inquired of him as to what “he thought he was doing burning my girl friend’s car”. Defendant replied, “I didn’t know it was her car.” Lonnie then told the defendant “he wanted the stuff back” and thereupon defendant took Lonnie out by Horace Johnson’s Wholesale Place where Lonnie discovered the seats, spare tire, and battery that had been removed from the Mercury Comet. Defendant also told Lonnie that he had to “run about 80 mile an hour to outrun Larry Wilson . . .”. During cross-examination by defense counsel, Lonnie testified that defendant admitted to him that he had burned Lois Stewart’s car.

John Eador, a member of the Nevada police force, testified that on November 16, 1973, he and Deputy Sheriff Leon Dowdy picked defendant up (with his consent) and took him to Police Headquarters where defendant read, and had read to him, a “Miranda” warning. Defendant also signed a “waiver of rights” and acknowledged to the officer that he understood it before signing. Thereafter defendant was interrogated by Eador while Dowdy wrote down the questions and answers. Defendant then read and signed the question and answer statement, which, in turn, was introduced in evidence at the trial by the state. In the question and answer statement defendant admitted that, at his wife’s suggestion, he towed the Stewart automobile (by use of his white 1964 Chevrolet to which David Loyd’s license plate was attached) a mile and a half west of Highway 71 with the intention of stealing the seats therefrom. He further admitted that he took the seats, battery, and spare tire from the Stewart car and then set fire to the interior and gas tank of the car. He also admitted having been chased from the scene of the arson.

Regarding his first point, defendant claims (1) that the “corpus delicti” had to be proved by the state before the extrajudicial confession made by him to Eador and Dowdy could be used against him, (2) that absent his confession the state failed to prove that the fire which burned the Stewart Mercury Comet car was of incendiary origin (an essential element of the corpus delicti of arson), and (3) therefore the trial court erred in admitting his confession to Eador and Dowdy into the evidence. Defendant’s major premise is invalid even if it be assumed, arguendo, that the state failed to prove, apart from defendant’s confession, that the fire which burned the Stewart Mercury Comet was of incendiary origin. It is well established in this state that full proof of the corpus delicti, independent of a confession, is not required. State v. Skibiski, 245 Mo. 459, 150 S.W. 1038 (1912); State v. McQuinn, 235 S.W.2d 396 (Mo.1951); and State v. O’Neal, 436 S.W.2d 241 (Mo.1968). If the state comes forward with evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in a confession both the circumstances and the. confession may be considered in determining whether the corpus delicti is sufficiently proved. State v. Skibiski, supra; State v. McQuinn, supra; and State v. O’Neal, supra. It is manifest that the corpus delicti of arson was sufficiently proved in the instant case when the independent evidence of corroborating circumstances heretofore related tending to prove the corpus delicti is considered in conjunction with the extrajudicial confession made by defendant to Officers Eador and Dowdy.

The main thrust of defendant’s second point is that at the time he admitted his guilt to Lonnie Loyd the latter was acting under a request or summons for assistance from a law enforcement officer (policeman Eador), and thereby occupied the status of a posse comitatus, and as such Lonnie was required to give defendant a “Miranda” warning before eliciting an admission of guilt from him, which Lonnie failed to do. For this reason defendant claims the trial court erred in admitting into evidence the extrajudicial oral confession made by him to Lonnie Loyd.

The circumstances under which a private citizen attains the status of a posse comita-tus were discussed in State v. Goodman, 449 S.W.2d 656 (Mo.1970). In discussing this common law theory, the court therein, l.c. 661 stated:

“In a proper case the sheriff may summon to his assistance any person to assist him in making an arrest for a felony. A posse comitatus, i. e., those called to attend the sheriff, may be summoned verbally. The mode is immaterial, so long as the object is to require assistance.”

The court also pointed out in Goodman, l.c. 662, that the “action of a posse comitatus constitutes governmental action”.

Defendant states in his brief that “when police officer Eador discussed the burning of the car with witness Lonnie Loyd and indicated that he would appreciate Lonnie Loyd’s assistance in investigating the crime, Loyd became a posse comita-tus.” The record, however, does not bear out defendant’s implication that Officer Ea-dor “indicated that he would appreciate Lonnie Loyd’s assistance in investigating the crime”, much less that Officer Eador requested or summoned Lonnie Loyd to assist him in making an arrest for a felony. Suffice it to say, Officer Eador’s testimony in this respect was as follows:

“Q. How many times did you talk to Lonnie Loyd before you went out and talked to Jim Colton? A. Talked to him once.
Q. Did you ask him to go talk to whoever he thought was involved to see what he could find out? A. No, sir, I did not.”

Since defendant failed to demonstrate that Lonnie occupied the status of a posse comi-tatus, it becomes patently obvious that his status at the time was that of a private citizen and, as recognized by the Supreme Court of this state in State v. Kelly, 439 S.W.2d 487, 489 (Mo.1969), “Miranda is not applicable to statements made to a private witness under circumstances not amounting to custodial interrogation.”

A companion aspect of defendant’s second point is a contention on his part that Lonnie Loyd threatened him with physical violence while discussing the burning of Lois Stewart’s car, thus rendering his oral admission of guilt to Lonnie inadmissible because made under duress and therefore involuntary. As ascertained from defendant’s brief, he bases this claim solely on the following testimony elicited from Lonnie Loyd on cross-examination:

“Q. Did you tell Mm you were going to do something to him when you went out there that day? A. No, but I gave him that impression.”

However, the very next question put to Lonnie Loyd on cross-examination, and his answer thereto, fully explained what he (Lonnie Loyd) had reference to by use of the word “impression”:

“Q. What sort of an impression or threat was this? A. I just told him I wanted that stuff back and the car paid for.”

Lonnie further testified that defendant “did not act like he was afraid” at the time of their conversation, and, as to their comparable sizes, Lonnie testified that “he’s just as big as I am.” Moreover, a careful review of the record fails to disclose that Lonnie ever verbally or physically threatened defendant in any manner if he refused to talk. It is also important to note that when defendant orally admitted his guilt to Lonnie, he was not in custody, no law enforcement officials were present, and the conversation from which the admission of guilt arose occurred at a public place. Considering the “totality of the circumstances”, after having concluded that Lonnie Loyd was under no legal compulsion to give defendant a “Miranda” warning, this court is unwilling to say that defendant was deprived of a free choice when he orally confessed guilt to Lonnie Loyd or that Lonnie exerted any kind of physical or psychological coercion upon him which so overcame his will as to render his admission of guilt involuntary. For all the reasons heretofore mentioned, the trial court did not err in admitting the testimony of Lonnie Loyd relative to the admission of guilt made by defendant.

Defendant contends in his third and final point that the trial court erred in overruling his motion for judgment of acquittal. Defendant rests this contention, in its entirety, on the following assertion: “Taking the State’s evidence as a whole, there is no showing other than Witness Stewart’s unsupported testimony as to the ownership of the automobile. No testimony was adduced at trial to connect the defendant with the burnt automobile. No evidence was adduced by the state as to the incendiary nature of the fire. No evidence was adduced by the state excluding natural or accidental causes of the fire.”

In testing the sufficiency of the evidence in the context of defendant’s third point “the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected.” State v. Papin, 386 S.W.2d 355, 359 (Mo.1965). See also: State v. Watson, 350 S.W.2d 763, 766 (Mo.1961); and State v. Slade, 338 S.W.2d 802, 805 (Mo.1960).

As heretofore held, the confession made by defendant to Officers Eador and Dowdy was properly admitted into evidence. Therein defendant admitted that he intentionally set fire to the Stewart automobile. This admission was obviously sufficient “to connect the defendant with the burnt automobile”, to demonstrate the “incendiary nature of the fire”, and to exclude any “natural or accidental cause of the fire”. Defendant’s claim that “there is no showing other than witness Stewart’s unsupported testimony as to the ownership of the automobile” is reduced to immediate inefficaey by State v. Wahlers, 56 S.W.2d 26, 27 (Mo.1932). In Wahlers, where the charge was operating a motor vehicle without the owner’s permission, the court held the owner’s testimony that he owned the car which the accused was charged with driving without permission was sufficient to establish the fact of ownership of the car. Wahlers was followed in State v. Tate, 436 S.W.2d 716, 718 (Mo.1969), and State v. Curry, 473 S.W.2d 747, 748 (Mo.1971), both involving charges of operating a motor vehicle without the owner’s permission, and was also followed in State v. Wilson, 286 S.W.2d 756, 758 (Mo.1956), involving “larceny” of a motor vehicle. No valid reason comes to mind why Wahlers should not constitute controlling authority with respect to proof of ownership of a motor vehicle in a case involving arson of a motor vehicle.

When the record in the instant case is tested by the principles enunciated in State v. Papin, supra, bearing in mind both defendant’s contentions and the essential elements of the crime of arson [See State v. Bunton, 453 S.W.2d 949, 952 (Mo.1970)], the trial court can not be said to have erred in overruling defendant’s motion for judgment of acquittal.

Judgment affirmed.

All concur.

      . Defendant does not contend that Lonnie Loyd had attained the status of a posse comitatus under or by virtue of Sections 532.600, 542.170, 542.200, 544.210, or 546.-620, RSMo 1969.


author: SHANGLER, Judge.

text:
    STATE of Missouri ex rel. Diana S. (Parrish) DRAIN, Relator, v. The Honorable Fred E. SCHOENLAUB, Judge of the Circuit Court of Buchanan County, Missouri, Respondent.
    No. KCD 28033.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Nov. 19, 1975.
    Utz, Litvak, Thackery, Utz & Taylor, Errol D. Taylor, St. Joseph, for relator.
    Dale, Flynn, Bauman & Liles, Joseph L.' Flynn, St. Joseph, for respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SHANGLER, Judge.

Our preliminary rule in prohibition went down on a petition which alleged that the respondent circuit judge pretended jurisdiction to alter custody of an infant from one parent to another in a proceeding altogether devoid of proof of changed condition.

The underlying litigation [a motion by the father for change of custody of the infant Stephen from the mother] was prompted by the motion of the mother [our relator] for formal approval of the respondent judge to remove the child from the jurisdiction for permanent residence in Arizona. The respondent had awarded custody of Stephen to the relator as incident to the divorce of May 5, 1972, a custody which remained uninterrupted. In early 1975 the relator planned remarriage, and since her promised spouse had found favorable employment in Arizona, she petitioned the respondent judge for permanent removal of the child from Missouri. [The award under the decree of divorce had been entered without restriction as to situs of custody.] The father countered with a motion for change of custody to him on the premise that the best interest of the child would be served by remaining in Missouri with the paternal family.

The court heard evidence on the motions and found that the relator was a fit and proper custodian, that although the child would benefit in material terms by removing from the state with the relator [now married] and her new husband, the child was to remain within the jurisdiction so that access by the father would not be impaired. Thereupon, the court overruled motion of relator for authority to remove the child and concurrently took the motion of the father for change of custody under advisement on condition, however, that the motion of the father would be sustained should relator remove herself from the jurisdiction.

The relator moved to set aside this judgment, and that the court enter final judgments allowing her to remove the child to Arizona and denying the motion of the father for custody. In support, the relator exhibited a verification that she intended to remain in Missouri and to provide a suitable home within the state so as to comply with the condition for continued custody imposed by the order of the court. Notwithstanding, the respondent announced in camera his intention to overrule the after-trial motions of the relator and to enter an order of immediate effect changing the custody of the child Stephen from the relator to the father.

Our preliminary rule intervened to prohibit the respondent judge from proceeding further with the cause pending our determination of the jurisdictional issue: whether the proposed order of custody of the father — presumptively based on the changed condition that the mother had removed permanently from Missouri — was without basis in proof.

The parties stipulated that pending the adjudication of that issue in this court, first the mother and then the father have the exclusive physical control and custody of the infant Stephen for a designated period of time. At the conclusion of these stipulated periods, the father once again returned physical custody of the child to the mother who [conceded by her counsel on oral argument] without consent of the father or approval of the court has removed with the child to Arizona for permanent residence where he is presently enrolled in school. The relator has thereby effectively rendered moot her plea for relief, for if we assume the contention of her petition that there was no proof of change of condition by reason of removal from the jurisdiction at the time custody of the child was ordered given to the father, her removal to Arizona has since supplied a factual basis for that judgment. Our decision, therefore, could have no practical effect on the controversy presented. State ex rel. Cervantes v. Bloom, 485 S.W.2d 446, 448 (Mo.App.1972).

To continue to press our writ against the respondent, therefore, would be supererogatory and useless. Accordingly, we quash the preliminary rule in prohibition which issued upon a petition now moot.

All concur.

      . We do not reach whether, nevertheless, the trial court may have abused his discretion in ordering a change of custody on such evidence; the writ of prohibition does not reach trial error.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Donald BRAUCH, Appellant.
    No. 36765.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 4, 1975.

      Paskal, Edwards, Olian & Hadican, J. Martin Hadican, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Donald Brauch, charged with murder in the first degree was found guilty thereof by a jury and sentenced to the custody of the Missouri Department of Corrections for Life.

Appellant does not challenge the sufficiency of the evidence. We need only relate that from the evidence a jury reasonably could find that in Lincoln County, Missouri, on February 10, 1973, appellant shot and killed Dennis Wayne Cox under circumstances that would constitute murder in the first degree.

Appellant first asserts that it was error for the trial court to permit the testimony of police officer Kenneth A. Koch when he had not been endorsed on the information.

The prosecuting attorney stated to the court that he had first learned of the witness the previous afternoon, and he proposed that if appellant was surprised or believed he was prejudiced because the name of the witness had not previously been endorsed, a recess should be declared to permit appellant to take the deposition of Officer Koch. That proposal was not accepted. Instead, appellant merely objected to Officer Koch being permitted to testify and orally asserted surprise.

Officer Koch was permitted to testify that Exhibit 10 was a “master fingerprint index card” from the records of the St. Louis County Department of Police showing the fingerprints of Dennis Wayne Cox, the victim of the murder charged against appellant, and that he had prepared the card, or as stated in the record, he had “rolled these prints.” The prosecuting attorney relied on the provision of Rule 24.17 that “It shall not be necessary to endorse upon the indictment or information the name of any person who appears upon the trial for the production or identification of public records.” Appellant’s contention is that Officer Koch was not the custodian of the records and he testified to more than a witness would have done who, as custodian of the public record, appeared to identify the record because he testified that he prepared the record. In substance, it is appellant’s contention that the only person who need not be endorsed upon an indictment or information, pursuant to the paragraph quoted above from Rule 24.17, is the custodian of a public record who appears to testify pursuant to the Uniform Business Records as Evidence Act, § 490.660 et seq., RSMo 1969.

Aside from the broad discretion in the trial court to permit the endorsement of the names of additional witnesses on the indictment or information under certain circumstances, State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969), which in our opinion would permit the testimony of Officer Koch, we conclude that the court correctly permitted the officer to testify.

There is no contention that Exhibit 10, consisting of the “master fingerprint index card” from the records and files of the St. Louis County Police Department, was not a public record. Prior to the adoption of the Uniform Business Records as Evidence Act, in order to prove the contents of a public record it was necessary to produce as a witness the person who made or prepared the record, an impossibility in many cases. “The purpose of the act has been stated to be to eliminate the necessity of calling, qualifying, and interrogating each person who made the individual entries, * * *30 Am.Jur.2d Evidence § 933. The best evidence of the identity of a public record is the testimony of the person who actually prepared the record and made the entries thereon. When that person is not available as a witness, the Uniform Business Records as Evidence Act permits other identification. There is nothing in Rule 24.17 which requires or intimates that the production or identification of a public record can be made, as appellant contends, only by the custodian of that record. Officer Koch did not testify to anything other than that the card identified as Exhibit 10 was prepared by him and that it was a record of the St. Louis County Police Department. When the witness was not the custodian of that record, which he was not, the fact that he prepared the record was the basic fact necessary for its production or identification as authorized by Rule 24.17. The trial court did not err in permitting the testimony of Officer Koch.

Appellant also contends he was denied due process of law “by the failure of the State to disclose in full the agreement that had been made with Charles Wheeler, the principal witness for the prosecution, in return for his testimony” implicating appellant as the one who killed Dennis Wayne Cox. We note here that Wheeler was also charged with the murder of Cox, and that he testified that he was present and saw appellant shoot Cox in the head with a pistol, and that after he helped appellant throw Cox’s body in a ditch where it was later found, he saw appellant again shoot Cox, this time with a shotgun.

Appellant does not purport to set forth in the point the terms of the agreement which he contends were not revealed. This is not in compliance with Rule 84.04(d). However, in a most liberal exercise of judicial discretion we have looked to the argument portion of appellant’s brief and we there find that he contends that in addition to the agreement, testified to by Wheeler, that in exchange for his testimony the prosecutor would recommend to the court that upon a plea of guilty Wheeler be sentenced to a term of twenty-five years to run concurrently with other sentences, the prosecutor also agreed that Wheeler would be confined “in the Lincoln County Jail for a substantial period of time, approximately eight (8) months, after formal sentencing and prior to confinement in the penitentiary.”

There is no testimony or evidence in the record to the effect that the agreement between the prosecuting attorney and Wheeler included the additional provision as now asserted by appellant. Appellant attempts to support this contention by referring to matters outside the record, such as the information by which Wheeler was charged with murder, and the judgment and sentence imposed following a plea of guilty. These records do not in anyway support appellant’s contention. Appellant relies primarily upon the alleged fact, but this also is not shown in the record, that Wheeler remained at the Lincoln County Jail for several months after judgment was entered. It is speculation only on the part of appellant that the reason Wheeler remained at the Lincoln County Jail, if he did, was the result of an agreement with the prosecutor. If speculation were permitted, the reason may have been that there were negotiations between the Missouri, Illinois and Federal authorities as to where he was first to be confined, or that the officials of the institution where he was to be confined delayed in transporting him.

In this case the appellant was advised that there was an agreement between Wheeler and the prosecutor. If appellant desired to pursue the matter further he could have cross-examined Wheeler as to whether all the terms thereof had been disclosed, or he could have called upon the prosecutor to reveal the terms, neither of which he did. There is nothing in the record to indicate any intentional concealment by the prosecution. The bald assertion by appellant in his brief that terms existed, other than those previously revealed, does not prove itself. State v. Sims, 501 S.W.2d 161 (Mo.1973). Appellant’s claim must fail for lack of proof.

Appellant next asserts that the trial court erred “in not permitting [him] to question witness Williams in the presence of the jury, having determined through examination of witness Paul Williams out of the hearing of the jury that the jury had not been fully informed of the agreement between the State and Wheeler.”

Mr. Williams was the appointed attorney for Wheeler. He was called as a witness by appellant, and when he was asked about plea negotiations on behalf of Wheeler the trial court called for a conference with counsel. Two conferences were held “off the record,” but there is absolutely nothing in the record to indicate, as asserted by appellant, that the court examined Mr. Williams and determined that the jury “had not been fully informed of the agreement between the State and Wheeler.” Therefore, the only language in the point that pertains to a possible issue is that the court erred “in not permitting [appellant] to question witness Williams in the presence of the jury,” and this is so indefinite as to present nothing for appellate review. However, again in the exercise of our discretion we have looked to appellant’s argument in effort to ascertain his real contention.

Following the first conference, counsel for appellant said: “It is my understanding from the Court’s previous statement made off record * * * that he is not going to permit the defendant to inquire of Paul Williams * * * as to whether or not [the prosecutor] has made a deal with witness Wheeler, also a co-defendant. That if he were to testify in the case against [appellant], that he would recommend twenty-five years to this Court * * ⅜ to run concurrent with his present sentence, but that if this Court did not go along with it, that he would dismiss the charge.” The Court then corrected the statement of appellant’s counsel as follows: “ * * * the Court did not put it quite in the language you did. The Court is not refusing to allow Mr. Williams to testify. The Court says that counsel cannot waive the Attorney-Client privilege.” Counsel for appellant then stated: “Oh, all right. Well then do I take it that the Court is going to permit me to ask Mr. Williams if [the prosecuting attorney] did promise to dismiss the charge if the Court did not go along with the twenty-five years?” A second conference was then held “off the record,” after which the Court stated: “The Court will rule and is ruling that only Mr. Wheeler may waive the Attorney-Client privilege as to any conversation that he and his attorney might have had in respect to this case or with the prosecuting attorney under the Attorney-Client relationship. Unless Mr. Wheeler waives that privilege himself, the Court takes the position that the attorney cannot waive that privilege.” Appellant then excused the witness and asked no further questions.

We do not know what proceedings were had or what comments were made “off the record,” and there was no formal offer of proof made by appellant. Also, whether communications are privileged is question of law for the Court, Hutchinson v. Steinke, 353 S.W.2d 137 (Mo.App.1962), and after the “off the record” conferences the trial court determined that at least some of the communications sought to be placed in evidence through Wheeler’s attorney were privileged. Appellant argues in his brief that he was entitled to determine the terms of the plea bargain offered the witness Wheeler in exchange for his testimony, and that a conversation concerning those terms is not privileged when conducted in the presence of or to a third person. We are inclined to agree with this general assertion. However, we cannot determine with any degree of assurance that the trial court precluded such testimony. As far as shown by the record the trial court ruled that (1) it was not refusing to allow Mr. Williams to testify, and (2) only Mr. Wheeler could “waive the Attorney-Client privilege (a) as to any conversation that he and his attorney might have had in respect to this case, or (b) with the Prosecuting Attorney under the Attorney-Client relationship.” (Italics added). We must frankly admit that we do not completely understand the meaning of the portion of the ruling of the court which we have italicized, and we cannot determine that what appellant wanted to show was precluded by the ruling. The record only shows that following the ruling appellant excused the witness without making an offer of proof. We further note: Wheeler was present or was available, but appellant made no request to him that he waive the privilege. Wheeler had previously testified and had been cross-examined by appellant concerning the terms of the agreement he had with the prosecuting attorney, but he did not deny the existence of any terms of the agreement about which inquiry was made. Also, the prosecuting attorney was available to give sworn testimony concerning the terms of the agreement with Wheeler. We gather the impression that appellant preferred to preserve the contention of error pertaining to the use of Williams as a witness rather than use available witnesses to place before the jury that evidence which he now asserts he wanted to present. In view of these circumstances, and because of the insufficiency of the point, and because in the absence of an offer of proof we cannot determine from the record with any assurance that the ruling of the trial precluded the production of the evidence sought, we find no prejudicial error requiring the reversal of the judgment.

The remaining five points in appellant’s brief each pertains to a contention which appellant admits was not preserved for appellate review either because no timely objection was made, or the issue was not presented in the motion for new trial, or both. Appellant urges in each instance that plain error resulted within the meaning of Rule 27.20(c), a contention that has become almost a routine assertion. We have carefully considered each contention, and have concluded that in each instance no prejudicial error resulted which would have required reversal of the judgment even if the issue had been properly preserved for appellate review, and in such event it follows that there could not be plain error within the meaning of Rule 27.20(c). We shall discuss each contention only to the extent necessary to demonstrate the absence of any error.

Appellant first complains of two statements by the prosecuting attorney made in oral argument. He contends they “personalized” the argument and urged his conviction “to prevent him from committing other crimes.” We do not agree with this characterization of the argument. We need not set out the precise language used, but it may fairly be said that it falls squarely within the rule announced in State v. Raster, 365 Mo. 1076, 293 S.W.2d 300 (Mo. banc 1956),

“It has long been held that so long as a prosecutor stays within the record and its reasonable inferences, he may legitimately argue the necessity of law enforcement as a crime deterrent, and he may argue also that the responsibility for the suppression of crime and the protection of the public rests upon the trial juries.”

The trial court has wide discretion in determining the latitude in permitting argument of counsel, and an appellate court is not to reverse in the absence of an abuse of discretion. State v. Taylor, 508 S.W.2d 506 (Mo.App.1974). There was no abuse of discretion in this case, and the proper exercise of discretion can never result in plain error within the meaning of Rule 27.20(c).

Appellant next asserts that prejudicial error resulted when the trial court overruled his challenge for cause as to two veniremen. This also presents a situation where the trial court has wide discretion, State v. Cuckovich, 485 S.W.2d 16 (Mo.banc 1972), and our review discloses no abuse of discretion. But, there is another reason why no error is demonstrated. The record does not disclose whether either of the challenged veniremen served as jurors, or if stricken whether they were stricken by appellant or by the State. In State v. Tippett, 317 Mo. 319, 296 S.W. 132 (1927), in a similar factual situation, the court said: “The juror was struck off, it does not appear by whom, and did not sit on the trial. Under these circumstances no error appears.” See also State v. Battles, 357 Mo. 1223, 212 S.W.2d 753 (1948); and State v. Daugherty, 484 S.W.2d 236 (Mo.1972).

Appellant also asserts that Instruction No. 6, the verdict directing instruction, did not include a reference to the defense of alibi. MAI-CR 2.04 requires “a cross reference in a separate numbered paragraph to each special negative defense upon which a separate numbered instruction has been given’’, and it is specifically provided that “Alibi is not a ‘special negative defense.’ ”

The next contention is that the court did not instruct the jury “that it should receive the testimony of an accomplice with care and weigh it with great caution,” but appellant admits that no such cautionary instruction was requested. The trial court gave MAI-CR 2.01 which is the required instruction on the believability of witnesses. In Note 2 to MAI-CR 2.01, adopted prior to the trial of this case, it is stated: “Except as may be specifically provided for elsewhere in MAI-CR, no other additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony. * * *See also the excellent discussion in State v. Lang, 515 S.W.2d 507 (Mo.1974) concerning the requirement to give an instruction concerning the testimony of an accomplice, and in the conclusion there reached that even prior to the adoption of MAI-CR there was no duty to give such an instruction when not requested. Appellant cites and relies only on cases pre-dating the Lang case and MAI-CR.

Appellant’s final contention is that he was denied a fair and impartial trial by “the disclosure of the prosecuting attorney in his opening statement and in the State’s case in chief that an alleged accomplice * * * Charles Wheeler, would plead guilty to the murder of Dennis Wayne Cox.”

First, the prosecuting attorney did not say in his opening statement that Charles Wheeler would plead guilty. After he outlined briefly the facts, he expected to prove, he said: “We will hear evidence from Mr. Wheeler that he took part in this, admitting the shooting, * * * He then referred to the anticipated evidence from other witnesses. Wheeler later testified for the State, and he then stated that he was charged with the murder of Dennis Wayne Cox, that he had an agreement with the prosecutor that if he would testify for the State and subsequently enter a plea of guilty, the prosecutor would recommend a sentence of twenty-five years to run concurrently with his present sentences.

Appellant and Wheeler were not jointly charged, and Wheeler was competent to testify against appellant even though he was an accomplice. Appellant asserts on this appeal that full disclosure of any agreement between the testifying accomplice and the prosecuting attorney was required, citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He did not make any objection to the disclosure that Wheeler was to enter a plea of guilty. He cannot now take the position that it would have been reversible error if the jury had not been advised of that part of the agreement pertaining to a plea of guilty by him and also take the position that if this information was placed before the jury it was reversible error.

The judgment is affirmed.

SMITH, C. J., and HOUSER, Special Judge, concur.