author: TURNAGE, Judge.

text:
    CITY OF INDEPENDENCE, Missouri, Plaintiff-Respondent, v. Mary Mildred DeWITT, d/b/a Independence Hotel, Defendant-Appellant.
    No. KCD 28017.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      Rufus Burrus, W. Raleigh Gough, Independence, for defendant-appellant.
    Richard G. Carlisle, Asst. City Counselor, Independence, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

The City of Independence, a constitutional charter city, obtained a permanent injunction against Mary DeWitt prohibiting DeWitt from operating a hotel in a building she owned so long as a public nuisance was maintained therein, and so long as she had not obtained State and City licenses for the operation of a hotel. She appeals.

DeWitt contends the court improperly granted the injunction because the City had an adequate remedy to correct any deficiencies in the hotel property under its ordinances. Reversed.

The City’s petition, by which it sought and obtained both a temporary and permanent injunction, alleged the hotel operated by DeWitt is located in a building in which rubbish, trash and flammable material are allowed to accumulate; wiring is exposed and improperly installed electrical junctions exist; highly flammable plywood is loose on corridor walls and stair wells; sewer vents are broken allowing gas vapors in the hotel; no smoke detection devices exist; no ventilation in various rest rooms; combustible ceiling tile exists in the stair wells; the stair well going to the third floor has an opening which would create a draft to carry fire to the third floor; no fire rated doors exist in stair wells; existing fire escapes are inadequate; and the hotel premises generally are detrimental to the health of the occupants thereof and the public in general. The petition further alleged the conditions described therein constitute violations of the health standards of the City. The regulations of the Division of Health of the State and the fire prevention code and uniform fire code as adopted by the City.

It was further alleged the conditions listed constitute a violation of the building code of the City with respect to the plumbing and electrical conditions. The petition alleged the condition of DeWitt’s property in violation of the various City ordinances made the hotel property a public nuisance and requested a temporary and permanent injunction prohibiting DeWitt or anyone else from occupying the premises until the alleged conditions were corrected.

The court entered a temporary injunction and then held a hearing to determine whether a permanent injunction should be issued. At this hearing the City introduced evidence to prove the allegations in its petition. The City primarily introduced evidence to show the dangerous condition of the loose plywood on the corridor walls. By various experts it was shown this condition would substantially contribute to the faster spread of any fire which might occur in the building. Various building and fire experts testified as to the dangerous condition of the plywood, coupled with the existence of the plywood on the stair wells and the location of a hole in the plywood in the stair well leading from the second to the third floor which would create a draft. This would result in a fire being rapidly drawn from the second to the third floor.

The evidence showed only the first two floors of the building were occupied by tenants, some transients, but mostly permanent. The third floor, although previously filled with debris, had been cleaned.

The City’s evidence also showed the existence of exposed wiring and electrical junction boxes in which the wiring was not properly attached. The evidence also showed the absence of fire doors at the top of the stairs at each floor and the fire escapes were vertical and approximately ten feet from the ground.

The evidence also showed there was no ventilation in the rest rooms and some mattresses were soiled. Various other minor deficiencies were also shown.

The City further proved the hotel did not have either a City or State license. DeWitt offered evidence to show she had attempted to procure a City license but the City Council had refused to issue the same.

The City introduced Chapter 4 of the City Code. Section 203 of that Chapter pertains to dangerous buildings. The definition of dangerous buildings includes buildings which are unsanitary so as to work injury to the health, morals, safety or general welfare of those occupying the building; those having light, air and sanitation facilities which are inadequate to protect the health, morals or safety of those living there; those having inadequate facilities for egress in case of fire or those having insufficient stairways or fire escapes; those which because of their condition are unsafe, unsanitary or dangerous to the health, morals, safety or general welfare of the people in the City; and those existing in violation of any provisions of the building code, the fire prevention code or other ordinances of the City.

Section 203 declares all dangerous buildings to be public nuisances. That Section provides for the repair, vacation or demolition of dangerous buildings. The procedure is established in such Section by which City employees are required to make a report in writing to the building official of the City in which they describe any buildings or structures they believe to be dangerous buildings. Building inspectors are required to inspect residential, institutional, and assembly type buildings as often as necessary to determine whether any condition exits which would render them to be dangerous buildings in terms of the ordinance. The building inspector, as he finds conditions to exist which makes a structure a dangerous building, is required to notify the owner in writing that (1) the owner must repair, vacate and repair, or vacate and demolish such building; (2) vacate said building or have it repaired and remain in possession; (3) a mortgagee, agent, or other person having an interest in the building as shown by the land records of the county, may, at their own risk, repair, vacate or demolish such building. The owner and other persons interested in the building are required to be given a reasonable time, not exceeding ten days, unless the building official extends the time, to perform the work described in the notice. _, ,

In addition to the notice given to the owner, the building inspector is required to notify the building official of the City as to the existence of a dangerous building. Upon receipt of this report, the building official must give the owner and all other persons interested in the property at least twenty-one days written notice to appear before him to show cause why the building or structure reported to be a dangerous building should not be repaired, vacated and repaired, or demolished, in accordance with the statement furnished to the parties by the building inspector. The building official is required to hold a hearing at the time set and to receive evidence offered by the building inspector and by the owner or other interested party. The official is required to make written findings of fact from the testimony received as to whether or not the building in question is a dangerous building.

The official is required to issue an order based upon the findings of fact and if a dangerous building is found to exist, to command the owner to repair, vacate and repair, or vacate and demolish such building. The ordinance further provides if the owner or other interested party fails to comply with the order issued by the building official within the time specified therein, the building official shall cause such building to be repaired, vacated and repaired, or vacated and demolished as the facts may warrant. The building official is authorized to certify the charge for the repair, vacation or demolition to the City and a special tax bill shall be issued against the property. The ordinance further provides the charge for abatement of the public nuisance shall include the actual cost of demolition plus a cost of $20.00 for administration. The tax bill is made a lien upon the property and may be enforced to the same extent and in the same manner as other special tax bills. The taxpayer is given the privilege of paying such tax bill over a period of ten years with the lien continuing for that period.

Section 203 further provides for emergency situations. The building inspector shall report to the building official when it reasonably appears there is immediate danger to the health, life or safety of any person, unless a building is immediately repaired, vacated and repaired, or vacated and demolished. After such report the building official shall cause the immediate repair, vacation or demolition of the dangerous building. The cost of such emergency repair, vacation or demolition is collected in the same manner as costs of repair, vacation or demolition carried out pursuant to notice and hearing.

The ordinance provides anyone aggrieved by any decision, finding or order issued under that Section may request a hearing before a Board of Appeals established by the building code of the City. Any interested party aggrieved by the determination of the Board of Appeals may appeal to the Circuit Court as provided in Chapter 536, RSMo 1969.

The above provisions of Section 203 comport with the authority granted by Sections 67.400 to 67.450, RSMo 1969, to constitutional charter cities.

The evidence offered by DeWitt tended to show the building, although old, had not had any fires of a general nature, nor were the safety and health deficiencies nearly as bad as portrayed by the City’s evidence.

The main dispute between the parties concerned the flammable nature of the plywood on the corridors, the deficiencies of the fire escapes and the condition of the wiring. At one point, the City’s evidence tended to show all of the deficiencies could be corrected with the expenditure of about $1,000.

At the conclusion of all the evidence, the court entered a permanent injunction by which DeWitt was prohibited from occupying her building in such a way as to maintain or permit a public nuisance as alleged in the petition, continuing violations of the health standards set by the City and the State, and continued violations of the fire prevention code, uniform fire code and national fire code adopted by the City, and continued violation of the City Code by operating a hotel without a license. The injunction further prohibited DeWitt from violating Section 315.260, RSMo 1969, by operating a hotel without first obtaining the permit required by that Section, and prohibited DeWitt from operating a hotel business generally until the public nuisance as alleged and proven had been abated and until she was no longer in violation of State statutes or City ordinances. The sheriff of Jackson County or the chief of police of the City of Independence were authorized to abate the public nuisances.

It could be noted parenthetically the permanent injunction did not set out any specific conditions found to constitute a public nuisance nor did it set out any specific condition which was found to be in violation of State law or City ordinance with exception of the reference to Section 315.260. That Section refers only to tourist camps and its applicability to this case has not been commented on by any of the parties.

By her answer DeWitt raised the defense of an adequate remedy at law and alleged the City had not exhausted the administrative remedy provided in Section 203 of the ordinances. She continues such argument in this court. In this contention DeWitt is correct.

The question presented is: Can the City obtain an injunction to abate conditions existing in violation of ordinances which are declared to constitute a public nuisance, when the City has a procedure outlined in its ordinances to correct such violations? This court answers in the negative.

The general rule is that an injunction will not lie if there is an adequate remedy at law. State ex rel. Phillips v. Yeaman, 451 S.W.2d 115, 118[6] (Mo. banc 1970). This general principle has not been applied to the specific facts of this case in this State so far as the research of the parties and this court reveals. However, in City of St. Louis v. Golden Gate Corporation, 421 S.W.2d 4, 9 (Mo.1967) the court made reference to the situation that exists here. In that case the City sought to obtain the appointment of a receiver and an injunction against further violations of the minimum housing standards. The purpose of the receiver was to take charge of the property, receive the rents, and to make repairs. The trial court refused the City relief and on appeal the Supreme Court noted the City had an ordinance which authorized the building commissioner, if the owner failed to remedy conditions necessary to bring buildings into compliance, to do so at the owner’s expense and, if not paid by the owner, to have special tax bills for the cost issued which would be a lien against the property. The court noted the City had failed to show why those provisions would not provide an adequate remedy. The court did not predicate its decision upon the theory of an adequate remedy through the ordinances authorizing the City to make repairs. However, it is apparent the court was of the opinion the City should have alleged and proved that the ordinance authorizing the City to make repairs did not provide an adequate remedy at law.

The City contends it is entitled to an injunction because the alleged violations of the City ordinances made the hotel a public nuisance. The City cites general statements appearing in several cases indicating the City has the power to abate public nuisances by injunction. The City does not contend the property here involved is a public nuisance at common law, but states a public nuisance exists because of the violation of City ordinances. In that situation it is stated in McQuillin, Municipal Corporations, Vol. 6 (1969) Sec. 24.70: “Abatement of nuisances by a municipal corporation should be by the particular legal steps outlined by charter or statute.” Here, the procedure for the City to abate the nuisance was spelled out by Section 203 of its building code.

The City does not contend the procedure set out in Section 203 is impractical or unworkable, and, in fact, makes no complaint about the operation of that procedure. The City simply contends it has given DeWitt numerous notices of violations which have existed over a long period of time without being corrected. In frustration, it seems, the City sees an injunction as the best answer. The obvious answer to this contention is the City could have begun the procedure outlined in Section 203 to remedy any deficiencies in this building at any time it had evidence of the necessary facts. Further, if the City were of the opinion the conditions alleged were of immediate danger to the health, safety and welfare of the occupants of this building, it could have gone in and made immediate repairs without following the full procedure in Section 203. Of course, any questions concerning the propriety of the City’s action under the emergency procedure could later be questioned. The fact remains, the City had a means to bring about either immediate repair or repair after a hearing provided its evidence showed the existence of conditions which required the repair.

The City makes some contention that Section 11.136 of its ordinances regarding nuisances in general save to it the right to proceed by way of injunction. However, this Section deals only with general nuisances which in all likelihood would refer to common law nuisances. Here the City did not allege the property was a general nuisance, but alleged it was a public nuisance by reason of specific fire and building code violations. This Section would not authorize an injunction in this case.

The City further contends it was entitled to an injunction under the authority of State ex rel. Eagleton v. Cameron, 384 S.W.2d 627 (Mo.1964) because DeWitt did not have a state license to operate the hotel. However, that case involved a nursing home and Section 198.160, RSMo 1969, specifically authorizes the Attorney General to obtain an injunction against the operation of a nursing home without a license. The failure of DeWitt to obtain a State license can only be prosecuted by the prosecuting attorney under Section 315.200, RSMo 1969. No such action has been brought.

The City also seeks to justify the injunction on the grounds DeWitt did not have a City license to operate a hotel. The ordinance requiring a license for the operation of a hotel provides the failure to obtain a license is a misdemeanor and punishable by a fine. It does not purport to make the failure to obtain a license a nuisance. The City likewise failed to allege or prove the remedy afforded by the license ordinance of a fine was not an adequate remedy at law.

The detailed procedure which the City adopted to correct deficiencies in buildings provided a complete and ample method by which the City could obtain correction of any deficiencies in this hotel. The City neither alleged nor proved any ground to show the remedy provided in its ordinances, adopted pursuant to State statute, was not a complete and adequate remedy at law. For that reason, under the general principle that an injunction will not lie if an adequate remedy at law is present, the issuance of a temporary and permanent injunction in this case was not within the jurisdiction of a court of equity.

DeWitt relied on Section 203 to show the City had an adequate remedy at law, but at the same time questioned the validity of certain uniform codes which she alleged the City had adopted by reference. This court is not ruling on the validity of any City ordinance in this case because it is not necessary to do so. This holding is limited to a determination the City may not resort to a court of equity for an injunction when it had adopted a detailed method to deal with dangerous buildings absent allegations and proof to show such procedure does not provide an adequate remedy at law.

Judgment reversed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James Wilson CHAMBERS, Appellant.
    No. KCD 28083.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      Melvin G. Franke, Public Defender, Union, for appellant; Prudence L. Fink, Union, of counsel.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

Defendant was charged under the Second Offender Act with assault with intent to kill with malice aforethought (§ 559.180, RSMo 1969). He was found guilty by a jury as charged and the court, after making the requisite findings relative to the Second Offender Act, fixed, his punishment at fifteen years confinement in the Department of Corrections.

Defendant duly appealed and in pressing this court for relief charges three instances of alleged error. First, due to an allegedly improper arraignment, the trial court lacked jurisdiction to try the case. Second, the trial court erred in admitting State’s Exhibit 2 (three spent cartridges) and State’s Exhibit 3 (a “nickel plated” .32 caliber revolver) because they “were not connected up with the crime or the defendant”. Third, the trial court erred in permitting a state’s witness to testify as to a statement made to him by defendant after the assault as the prosecuting attorney allegedly failed to disclose the same to defense counsel when discovery was requested.

Defendant has not challenged the sufficiency of the evidence to support the guilty verdict and a fairly terse recital of the evidence demonstrates why he has not done so. About half past midnight on January 1, 1974, a melee occurred in front of the V.F.W. Hall located approximately one-half mile north of Antonio, Missouri, while a public dance was in progress. Roger Griffin, the victim, who was attending the dance, left the hall and went outside to see what was going on. As he approached the melee he suggested that, “everybody go inside and listen to the band”. Whereupon, the defendant grabbed him around the neck, placed a revolver in his stomach, and shot him twice. As the victim staggered backwards, defendant shot him a third time in the stomach. The victim, obviously a person of hardy stock, survived.

Defendant’s contention that the trial court lacked jurisdiction to try the case centers around his arraignment. The offense, which occurred in Jefferson County, was tried in Morgan County on change of venue. During the interim, a change of prosecuting attorneys occurred in Jefferson County. Defendant was never arraigned until after an amended information was filed in Morgan County by the succedent Prosecuting Attorney of Jefferson County. For some unexplained reason, upon arraignment in Morgan County, defendant was read the information filed by the former Prosecuting Attorney of Jefferson County. The amended information upon which defendant was tried and convicted, and the preceding information which was read to him when he was arraigned, were identical save for their dates of verification and the names of the subscribing prosecuting attorneys. Defendant does not claim that the amended information was insufficient or wanting in any respect to properly charge him with the offense for which he was tried and convicted, or that he failed to receive a copy of it. His argument, highly convoluted in nature, takes the following tack: the information read to him on arraignment had been suspended by the filing of the amended information [Rule 24.14 and State v. Berry, 298 S.W.2d 429, 432 (Mo.1957)] and therefore no jurisdiction attached in the trial court to try him.

It is true that there can be no trial, conviction, or punishment absent a formal charge, i.e., an indictment or information. State v, Harrison, 276 S.W.2d 222, 223-24 (Mo.1955) cert. denied 349 U.S. 948, 75 S.Ct. 877, 99 L.Ed. 1273 (1955); and State v. Granberry, 530 S.W.2d 714, 719 (Mo.App.1975). The complete absence of a formal charge is jurisdictional and cannot be waived. State v. McQueen, 282 S.W.2d 539, 540 (Mo.1955). An information on file charging a defendant with an offense to which he pleads is a jurisdictional prerequisite. State v. Gladies, 456 S.W.2d 23, 24 (Mo.1970). These principles, however, in the context of defendant’s first point, must be juxtaposed with the purpose and manner of conducting arraignments. The purpose of an arraignment is explicated in State v. Borchert, 312 Mo. 447, 279 S.W. 72, 75 (1925): “The evident purpose of an arraignment . . . is to ascertain whether defendant is personally before the court, in order that he may know what is being done in his case, and to give him an opportunity to plead guilty, if he elects to do so, or to enter a plea of not guilty.” The manner of conducting an arraignment is prescribed by Rule 25.04 which provides, in part, that “[arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto. . . ” (Emphasis added.) When the above principles are superimposed on the record in this case, the inherent fallibility of defendant’s first point is readily apparent. The language describing the offense in the information read to defendant on arraignment was repeated verbatim in the amended information, which was on file. Thus in every sense, the amended information, which was on file and upon which defendant proceeded to trial and was found guilty, charged defendant with the precise offense to which he pled not guilty. Every “evident purpose” was served by defendant’s arraignment and the manner in which it was conducted complied with Rule 25.04, supra, as the obviously inadvertent reading of the earlier information, to say the least, stated the “substance of the charge” pending against him. Defendant’s first point, ingenious though it may be, is totally lacking in substance, as the amended information on file charged him with the precise offense to which he pled not guilty and for which he was tried and found guilty.

Defendant, by way of his second point, charges the trial court with error in admitting into evidence State’s Exhibit 2 (three spent cartridges) and State’s Exhibit 3 (a “nickel plated” .32 caliber revolver). The gravamen of this point, according to defendant’s brief, is that said exhibits “were not connected up with the crime or the defendant”. Regarding State’s Exhibit 3, the .32 caliber revolver, the state’s evidence disclosed the following. A witness for the state testified that he was checking persons as they entered the dance hall to see if they were carrying a weapon; on checking defendant he saw and observed a “gun” which defendant was carrying- and he identified State’s Exhibit 3 as the “gun” which defendant was carrying when he checked him as he entered the dance hall. The victim testified that when he was shot by the defendant, he saw a “shiny gun”; State’s Exhibit 3 was displayed to him and upon being asked if it “appeared” to be “the same kind of a weapon”, he replied, “Yes, sir”. Another witness for the state testified that he observed defendant shoot the victim and as the latter staggered backwards and was shot the third time he saw a “chrome plated .32 revolver” in defendant’s hand; State’s Exhibit 3 was displayed to him and upon being asked “if it was similar to the weapon you saw there that night”, he replied, “Yes, sir”; and he further testified that he had previously seen State’s Exhibit 3 before “when he [defendant] was shooting him [the victim]”. Another witness, who was inside the dance hall when the shooting occurred, testified that after he heard shots he went outside the dance hall and saw defendant “crouched” behind a “van or car” in the parking area adjacent to the front entrance of the dance hall. He then went down to where defendant was, at which time defendant had a “nickel plated .32 revolver” in his hand; State’s Exhibit 3 was displayed to him and upon being asked if it “appeared” to be “the same weapon” he observed in defendant’s possession, he replied, “Yes, sir”. Although State’s Exhibit 3 was not seized or removed from defendant, it came into the possession of the investigating officers as the result of a tip that a weapon of the same description as that which defendant used to shoot the victim could be found in a home in Lemay, Missouri. Regarding State’s Exhibit 2, the spent cartridges, the last mentioned witness also testified that he went back to the scene the following morning in the company of several deputy sheriffs and was present when the three spent cartridges which were marked and admitted as State’s Exhibit 2 were found in the same location where he previously observed defendant “crouching” behind a “car or van”. Regarding both the spent cartridges (State’s Exhibit 2) and the .32 caliber revolver (State’s Exhibit 3), a ballistic expert called by the state testified that the spent cartridges had been fired from the .32 caliber revolver.

In view of Ahe above evidence, defendant’s contention that the complained of exhibits “were not connected up with the crime or the defendant” is rejected. State’s Exhibits 2 and 3, if identified as the articles they were purported to be, and if shown to be connected with the crime and the defendant, were admissible. State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 337-39 (1938). See also State v. Martin, 491 S.W.2d 299, 300 (Mo.1973). The evidence introduced by the state overwhelmingly substantiated the criteria for admissibility just mentioned. The .32 caliber revolver (State’s Exhibit 3) was sufficiently identified as the weapon which defendant had in his possession shortly before the offense was committed, as the weapon used by defendant for assaulting the victim, and as the weapon observed in defendant’s possession shortly after the assault was committed. The spent cartridges (State’s Exhibit 2) were found at a location to which defendant had retreated after the assault and, according to the ballistician called by the state, had been fired from the .32 caliber revolver identified as State’s Exhibit 3. The fact that the identification of said exhibits by certain witnesses may be said to have been somewhat qualified did not preclude their admission, as their identification did not have to be wholly unqualified in order to make them admissible. State v. Kern, 447 S.W.2d 571, 575 (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791 (Mo.1956); and State v. Hollins, 512 S.W.2d 835, 839 (Mo.App.1974). Any qualification as to their identification went only to the weight to be given them by the jury, not to their admissibility. State v. Stancliff, 467 S.W.2d 26, 30 (Mo.1971): State v. Johnson, supra, at 791; and State v. Hollins, supra, at 839. As the complained of exhibits were sufficiently identified as the articles they were purported to be and were repeatedly connected with the assault and the defendant, the trial court did not err in admitting them into evidence.

Defendant’s third and final point rests upon the following testimonial incident. The state’s witness, who approached defendant after the assault, was permitted to testify, over objection, that defendant stated to him, “If you want to know what kind of a gun I got, come down and find out”. Defendant’s objection thereto was premised solely on the ground that the statement was not disclosed to defense counsel upon an oral request for discovery. Rule 25.32, so far as here pertinent, provides: “[T]he state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request: (1) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memo-randa reporting or summarizing part or all of their oral statements; (2) Any written or recorded statements and the substance of any oral statements made by the defendant ..” The record presented to this court is virtually devoid of illuminating facts with which to resolve defendant’s third and final point. The only appurtenant facts disclosed by the record are found in a colloquy between the prosecuting attorney and defense counsel which occurred when the objection was lodged. Considering what was involved, and particularly so as defense counsel orally requested disclosure, the most charitable description of the colloquy is that it struck a three-way balance between brevity, abstractness and vagueness. On the basis of the barren record presented, this court refuses to indulge in gross speculation and unbridled conjecture, as it would have to do, in order to find that defense counsel’s oral request for discovery sought disclosure of the substance of the oral statement made by defendant to the witness and that the prosecuting attorney had “possession and control”, i.e., knowledge, thereof. The paucity of the record apposite defendant’s third and final point falls woefully short of presenting a basis for branding the trial court’s admission of the complained of evidence as error. As a caveat, it vividly points up the inherent danger in the casual approach taken by defense counsel regarding discovery by orally requesting disclosure as opposed to making a written request for disclosure of particular discoverable items in accordance with Rule 25.32. Absent a proper record, the defendant had no standing to seek invocation of any of the sanctions prescribed in Rule 25.45. Parenthetically, the complained of statement, when viewed in conjunction with all the evidence, can hardly be said to have been prejudicial regardless of defendant’s claim that it should have been excluded.

Judgment affirmed.

All concur.


author: PER CURIAM:

text:
    Margie A. BAUER et al., Plaintiffs-Respondents, v. Bobby D. ADAMS, Defendant-Appellant.
    No. KCD 28117.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      C. B. Fitzgerald, Warrensburg, for defendant-appellant.
    J. Kirk Rahm, Hensley, Rahm & Rahm, Warrensburg, for plaintiffs-respondents.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PER CURIAM:

Plaintiffs sued their former employer for fraud. Defendant appeals from a jury verdict for plaintiffs. The jury awarded Margie A. Bauer $257.50 actual damages and $200.00 punitive damages, Marvin G. Warner $360.00 actual damages and $200.00 punitive damages, and Ward Douglas $600.00 actual damages and $200.00 punitive damages. Defendant’s sole contention is that the trial court erred in overruling his motion for a directed verdict at the close of all of the evidence. Defendant claims that there was no evidence of a present intent not to perform a future promise.

The issue to be decided is the sufficiency of the evidence to support a submission of fraud. Thus, we must consider the evidence in a light most favorable to plaintiffs, giving plaintiffs the benefit of all reasonable inferences therefrom and disregarding evidence of defendant which is unfavorable to plaintiffs. Lazier v. Pulitzer Publishing Company, 467 S.W.2d 900 (Mo.1971), cert. denied 404 U.S. 940, 92 S.Ct. 273, 30 L.Ed.2d 253 (1971); Palermo v. Cottom, 525 S.W.2d 758 (Mo.App.1975); Yeager v. Wittels, 517 S.W.2d 457 (Mo.App.1974).

Defendant was the majority shareholder and president of Bob Adams Motor, Inc., a corporation. Plaintiffs are former employees of that corporation. In January, 1974, defendant’s corporation was experiencing financial difficulty in common with other automobile dealers as a result of the “energy crisis.” At this time, defendant requested and plaintiffs agreed to a 20% reduction in salary. The parties disagree as to the terms of the agreement for reduced salaries. This “agreement” is the basis for the plaintiffs’ claim of fraud.

Plaintiffs testified that defendant asked them to take a 20% reduction in salary to be paid back when business improved, but no later than the end of the year. Plaintiff Marvin G. Warner testified that he would not have continued to work for defendant unless repayment had been guaranteed. Kenneth Hutcherson, a former auto mechanic for defendant, was also asked to take a cut in pay. He testified that defendant told the employees that he would pay them back in the future if possible.

Plaintiffs introduced part of a deposition of defendant as an admission against interest. In this deposition, the plaintiffs’ counsel inquired of the defendant as to his intent at the time of his first conversation with plaintiffs. Defendant in this fragment of his deposition testified that he did not intend to pay them, and added, “They didn’t intend to get it.”

Counsel for plaintiffs called defendant as an adverse witness at the trial. Defendant testified that he asked plaintiffs to take a 20% cut in salary, to which they all agreed, and that then, or at a later time (defendant was unsure), he told plaintiffs that they would be reimbursed if business improved. Defendant denied having guaranteed repayment by denying any unconditional agreement to repay. The following colloquy between counsel for plaintiffs and the defendant then appears:

Q “It was not your intention when you talked to them about this reduction they would be paid the money back at least by the end of the year?”
A “Yes, it was my attention if I made the money back.”
Q “If you made the money back?”
A “Right.”
Q “In other words, you are saying it was not your intention to guarantee they would get it?"
A “No, I did not guarantee I would make the money back.” (Emphasis supplied).

Defendant sold the dealership in April, 1974. He testified that he had no intention to sell in January when he reduced plaintiffs’ wages. Plaintiffs’ salaries were later returned to their original level, but the 20% withheld has never been reimbursed.

The essential elements of fraud are (1) a representation was made of a material fact which was false and known to be false, or was recklessly made, (2) the statement was made with the intent to deceive for the purpose of inducing the hearer to act upon it, (3) the hearer reasonably relied upon it (4) to his injury and damage. Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569 (Banc 1952); King v. Morris, 315 S.W.2d 497 (Mo.App.1958); Yeager v. Wittels, supra. Defendant alleges plaintiffs failed to prove the elements of a statement of fact, intent and reliance. A failure to prove any one of these elements is fatal to plaintiffs’ right of recovery. Latta, King, Yeager, supra.

Plaintiffs' theory of recovery is based upon the rule followed in Dillard v. Earnhart, 457 S.W.2d 666 (Mo.1970), and Brennaman v. Andes & Roberts Brothers Construction Co., 506 S.W.2d 462, 465 (Mo. App.1973), that misrepresentation of an intent to perform is misrepresentation of an existing fact if there is a “current intention by the promissor at the time the agreement is made not to perform.” Such a misrepresentation of intention is to be distinguished from a mere promise or expression of opinion, both of which are not actionable. Brennaman, supra.

The issue thus narrows to the single question of whether the evidence is sufficient to support a jury finding of the defendant’s present intent not to perform the claimed guarantee of the repayment by the end of the year.

Standing alone, the deposition testimony is ambiguous. It would support either the inference of defendant’s promise being conditional or the inference that defendant had a present intent not to perform the promise of guaranteed payment which the plaintiffs claim he made. On the basis of this, the jury verdict would be sufficient for the plaintiffs would be entitled to the more favorable inference.

The difficulty, however, arises with respect to the trial testimony of the defendant offered by the plaintiffs which is clearly and unequivocally contrary to the inference favorable to the verdict.

Defendant argues plaintiffs are bound by defendant’s direct evidence as a witness. A party is not bound by the testimony of one of his witnesses if that testimony is contradicted by that party’s other evidence. Young v. Kansas City Southern Railway Co., 374 S.W.2d 150,153 (Mo.1964). Plaintiffs are only “bound” by defendant’s testimony as an adverse witness if that testimony is the only evidence on an element of their case and is adverse to plaintiffs’ theory of recovery. This is because such evidence, or lack of evidence, results in the failure of proof of an essential fact. “It is not his adversary’s testimony by which he is ‘bound’; it is his own lack of contrary proof.” In the Matter of Brown, 527 S.W.2d 395, 398 (Mo.App.1975).

Plaintiffs could prove the element of an intention to deceive by direct evidence or by circumstantial evidence from which intent could be inferred. Klecker v. Sutton, 523 S.W.2d 558 (Mo.App.1975). However, a failure of performance alone does not establish intent or shift the burden of proof. Brennaman, Klecker, supra. More importantly however, a party may not make a submissible case by relying upon an inference which is contrary to that party’s only direct evidence on the matter to be proved. Brophy v. Clisaris, 368 S.W.2d 553 (Mo.App. 1963); Pruiett v. Wilform, 477 S.W.2d 76, 79 (Mo.1972). Pruiett decided a wrongful death action brought by a widow for the intentional shooting of her husband. The plaintiff called the defendant as an adverse witness, who testified that the shooting was accidental. No witness testified otherwise. The court held that the plaintiff failed to make a submissible case because, “Any inference from circumstances in the present case that the shooting was intentional would be based upon speculation and conjecture, since it would be contrary to the only direct evidence.” The same result is necessitated herein.

Plaintiffs seek to establish the requisite element of intent by contrasting their version of the agreement (that defendant guaranteed reimbursement by the end of the year) with defendant’s deposition testimony that he did not intend to pay the plaintiffs. However, plaintiffs’ direct evidence of intent was the testimony of defendant that he never intended to guarantee repayment and did not do so. This is the only direct evidence of intent and is contrary to the necessary finding of a present intent not to perform. Plaintiffs, therefore, having failed to establish an essential element of their cause of action, or perhaps more properly stated, have negated any inference of an intent not to perform arising from the deposition testimony offered, did not make a submissible case of fraud.

The judgments are reversed.


text:
    STATE of Missouri, Respondent, v. Bobby Lee LONG, Appellant.
    No. KCD 28312.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      A. J. Falcone, James H. Thompson, Jr., Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

Defendant was indicted for selling cocaine, a Schedule II controlled substance (§ 195.020, RSMo Supp. 1971). The jury before whom defendant was tried found him guilty but was unable to agree upon the assessment of punishment. Accordingly, the trial court assessed defendant’s punishment at twenty years confinement in the Department of Corrections of the State of Missouri (§ 195.200, RSMo Supp. 1971). In due course, allocution was afforded, judgment was entered and formal sentence was pronounced.

Defendant is a paraplegic and confined to a wheelchair. His physical handicap antedated the statutorily proscribed sale and still exists. It is noted at this time because, as revealed by the instances of error (4) asserted by defendant on appeal, it tangentially pervaded the trial and certain post trial proceedings below.

Defendant, as previously noted, raises four points of alleged error on appeal. First, he claims the trial court erred in permitting the state, over objection, to cross-examine him in regard to a “government” pension he was receiving. Second, he claims the trial court erred in refusing to permit him to testify as to the cause of his paraplegia and present physical condition because it was relevant to the defense of entrapment. Third, he claims the state failed to make a submissible case as entrapment was an issue and the state failed to come “forward with substantial evidence that the intent to commit the charged offense originated with the accused rather than the prosecuting authority.” Fourth, he claims he was prejudiced and denied due process of law (U.S. Const. Amend. XIV) in that the trial judge failed to sua sponte disqualify himself from hearing and ruling on defendant’s motion for new trial because of bias and prejudice against defense counsel.

Before specifically addressing the various points, a resume of certain basic facts appears in order. At approximately 9:30 P.M. on March 2, 1974, defendant sold a “dime bag” of cocaine to Edward Moses for $10.00. Moses, a member of the Missouri State Highway Patrol, was operating as an “undercover agent” at the time. According to the state’s evidence, facts leading up to and surrounding the sale are as follows: Several days prior to the sale in question Moses had purchased cocaine from a person named B_S_During the early part of the evening on the day of the sale Moses again encountered B_ S_ at a tavern in Brookfield, Missouri, at which time the latter accompanied Moses to the residence of defendant. This was Moses’s first encounter with defendant. The record is silent as to any conversation between Moses and B_S_which precipitated the visit. After arriving at defendant’s residence, a short conversation ensued between Moses and defendant, the gist thereof being that Moses informed defendant that he wished to purchase a gram of cocaine and defendant replied that he was only selling “$10.00 quantities”. An agreement was then reached between defendant and Moses for the sale of a “dime bag” for $10.00 and the sale was consummated. Defendant took the stand in his own behalf and testified that at approximately 1:30 P.M. on the day in question B_ S-came to his residence and sold him five “dime bags” of cocaine. According to defendant, he purchased the cocaine because he “was kind of feeling down in the dumps”. Defendant further testified that later that evening, at the request of B-S-, he sold a “dime bag” of the cocaine to Moses. By way of rebuttal, the state recalled Moses to the stand at which time he testified that B_ S-was not “working” with him, was not his “agent”, and was not an “informer”.

Defendant first complains that the trial court erred in permitting the state on cross-examination, over objection, to inquire of him about a government pension he was receiving. In order to place this point in its proper context, it is necessary to refer to the following testimony elicited from defendant by his own counsel on direct examination:

“Q Are you employed?
A No, sir.
Q Are you able to work?
A No, sir.”

While being cross-examined by the state, defendant was asked, “Mr. Long, you actually, although you don’t work you receive a government pension of some $1600.00 a month?” Defendant’s answer thereto, after an objection by defense counsel was overruled, was “Yes, sir”.

Section 546.260, RSMo 1969, apropos defendant’s first point, provides, in part, that a defendant in a criminal case who testifies in his own behalf “shall be liable to cross-examination, as to any matter referred to in his examination in chief . . ”. This statutory provision has been interpreted as permitting the state to cross-examine a defendant in detail with respect to matters about which he testified on direct ex-animation. State v. Dalton, 433 S.W.2d 562, 563-64 (Mo.1968); State v. Moser, 423 S.W .2d 804, 806 (Mo.1968); and State v. Rice, 519 S.W.2d 573, 575 (Mo.App.1975). As cogently stated in State v. Williams, 519 S.W.2d 576, 578 (Mo.App.1975), relative to the scope of cross-examination of a defendant, “the state is not confined to a categorical review of the matters covered or stated in the direct examination, but that cross-examination may cover all matters within the fair purview of the direct examination.”

It is manifest that the heretofore referred to testimony of defendant on direct examination was an attempt to appeal to the jury’s natural sense of pity and sympathy for a physically handicapped person such as defendant. As defendant opened the matter up, he was in no position to cry foul when the state cross-examined him about the $1600.00 a month government pension he was receiving. The state’s cross-examination fell within the “fair purview” of the direct examination conducted of defendant. Even though defendant’s testimony on direct examination appears to have been irrelevant and self-serving, this did not preclude the state from probing and clarifying it on cross-examination. State v. McLaughlin, 149 Mo. 19, 50 S.W. 315, 319 (1899). To allow defendant to play upon the jury’s sympathy by intimating that he was without any means of support due to his physical condition, and then deny the state the right to put the matter in its true context on cross-examination, would effectively immunize defendant from the risk of being cross-examined on an irrelevant and self-serving matter which he, of his own volition, injected into the case. Such a result should not be countenanced. For reasons stated, any claim of error posited by defendant’s first point is denied.

Defendant’s second point, that the trial court erred in not permitting him to testify as to the cause of his paraplegia, as it was relevant to the defense of entrapment, necessitates a preliminary statement of the law of entrapment as it exists in this state. Missouri hews to the “origin of intent” theory of entrapment as initially articulated in State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, 619-20 (1929): “Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.”

As gleaned from the argument advanced by defendant, he sought to show the cause of his paralysis and present physical condition because of a misplaced notion of their relevancy and probativeness to show that intent to commit the charged offense originated with the prosecuting authority. It is inconceivable how either the cause of defendant’s paralysis or his present physical condition could be said to have any bearing on the “origin of intent” in the sense contended by defendant. In short, the ramifications which defendant sought to introduce regarding his paraplegic condition, its cause and the resultant physical condition in which it left him, were barren of any tendency to prove that intent to sell the cocaine in question originated with the prosecuting authority. Failing, as they did, to possess any relevancy or probative value touching a viable issue in the case, the trial court did not err in sustaining the timely objection lodged by the state.

A degree of affinity exists between defendant’s second and third points. By way of the latter, defendant claims the state failed to make a submissible ease because of its failure to come “forward with substantial evidence that the intent to commit the charged offense originated with the accused rather than the prosecuting authority.” Defendant draws on State v. Weinzerl, 495 S.W.2d 137,142 (Mo.App.1973). In Weinzerl the court noted, in view of certain language contained in State v. Decker, supra, that under the prevailing “origin of intent” test, once entrapment becomes a viable issue in a criminal case, the absence of entrapment becomes an essential element of the criminal offense being prosecuted and the state bears the burden of going forward with prima facie proof which would permit the trier of the facts to find, beyond a reasonable doubt, that the intent to commit the charged offense originated with the accused rather than with the prosecuting authority. Notwithstanding the principle just iterated, defendant’s third point lacks sustaining vitality because it rests upon a false premise — defendant’s unilateral assumption that under the evidence entrapment was raised as an issue in the case. Mere solicitation by a government agent does not raise an issue of entrapment. State v. Crump, 454 S.W.2d 519, 521 (Mo.1970); and State v. Weinzerl, supra, at 143. Nor does the use of a governmental agent as a willing buyer, without more, raise an issue of entrapment. State v. Napolis, 436 S.W.2d 645, 649 (Mo.1969); and State v. Weinzerl, supra, at 143. When the evidence in this case is reviewed in its totality, the most that can be said is that Moses, although concededly an undercover agent, solicited defendant to sell him some cocaine and defendant did so. The validity of this conclusion is in no way tempered by defendant’s testimony that B_ S_ asked him to make the sale to Moses, because the record conclusively demonstrates that B_ S_, although instrumental in bringing defendant and Moses together, was not an “informer” for, an “agent” of, or “working” with Moses. The request made by B_ S_to defendant bears no overtones of defendant being induced to make the sale by reason of enticements held out by B_S_; nor does defendant suggest (and the evidence would not support him if he did) that B- S_ ingratiated himself into defendant’s trust and confidence in order to provide an opportunity for Moses to purchase the cocaine. See State v. Weinzerl, supra, at 143, and cases therein cited. Absent any semblance of reluctance on the part of defendant, or overreaching by any governmental authority, defendant willingly sold the cocaine to Moses. Accordingly, the evidence did not inject entrapment into the case. For this reason, the absence of entrapment was not an element of the state’s case and no burden was imposed upon it, as submitted by defendant, to come “forward with substantial evidence that the intent to commit the charged offense originated with the accused rather than the prosecuting authority.” State v. Admire, 495 S.W.2d 132, 134 (Mo.App.1973); and State v. Weinzerl, supra, at 142. Despite defendant’s protestations to the contrary, the state made a submissible case.

Defendant, in his fourth and final point, attacks the trial judge’s failure to sua sponte disqualify himself from hearing and ruling defendant’s motion for new trial. According to defendant, bias and prejudice toward defense counsel left the trial judge no choice but to sua sponte disqualify himself and his failure to do so deprived defendant of a fair hearing on his motion for new trial and, concomitantly, due process of law. Disposition of this point necessitates a recitation of certain facts and events which occurred during the interim between rendition of the jury’s verdict and the hearing on and disposition of defendant’s motion for new trial.

After the jury returned its verdict into open court finding defendant guilty but unable to agree upon punishment, the trial judge stated that he was setting defendant’s punishment at twenty years confinement in the Missouri Department of Corrections and, simultaneously, announced that “formal sentencing” would be deferred until a later date. Shortly thereafter an article concerning the trial appeared in a Kansas City newspaper. According to defendant’s brief, “comments” in the newspaper article “calling the Judge’s 20-year sentence of the Appellant ‘shocking and grossly excessive’ were attributed to Appellant’s attorney.” Subsequently, defendant’s motion for new trial was timely heard and overruled. No charge was made in the motion for new trial that the sentence fixed by the trial court was excessive or that it smacked of being cruel and inhuman punishment. Parenthetically, no charge to that effect has been tendered or argued on appeal. No request was made by defendant that the imposition of sentence be suspended and that he be placed on probation. After defendant’s motion for new trial was overruled, defendant was afforded allocution, judgment was entered and formal sentence was pronounced. As defense counsel was preparing to leave the courtroom, the trial court called him to the bench and asked him if he was familiar with Rule 4, DR 7-107(E). Defense counsel replied that he was. Sensing that he might be subjected to disciplinary action, defense counsel advised the trial judge that he refused to answer any further questions and that he wished to be represented by counsel “if the Court is proposing that I be disciplined before this Court.” All further questioning terminated and the trial judge advised defense counsel that he was going to appoint a special prosecutor “to investigate possible contempt proceedings against you”. The trial judge further advised defense counsel that if the special prosecutor “determines that proceedings should be instituted, and if in fact a citation for contempt is issued, it is my intention to, in complete and total fairness to you, . . . disqualify myself and ask the Supreme Court of Missouri to appoint a special judge to hear this contempt proceedings.”

The state contends that defendant’s plea that the trial judge should have sua sponte recused himself has not been preserved for appellate review because defendant failed to seek recusation at the trial level. The state tersely argues: “It is the general proposition that in order to preserve an error for review, the attorney must give the trial judge a chance to correct the error.” This argument begs the merits of the question and neither side has cited any apposite authority, pro or con, on its procedural aspect. This court concludes that it is unnecessary to address this procedural hiatus as defendant’s argument readily lends itself to being pragmatically disposed of on a factual basis. By so doing, it is also unnecessary to decide whether the action taken by the trial judge in response to defense counsel’s intemperate statement to the press was, as defendant would have this court believe, a release of pent up fury and hostility against defense counsel. Nor is it necessary to ignore that this state recognizes that bias or hostility on the part of the trial judge toward counsel may be of such a degree as to be tantamount to prejudice against counsel’s client. State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85, 8 A.L.R. 1226 (banc 1919).

As a matter of chronology, the newspaper article which precipitated the event which defendant relies upon as an indicium of bias and prejudice appeared during the interim between the trial and the hearing and ruling on defendant’s motion for new trial. Additionally, and constituting an equally salient chronological fact, the trial judge did not confront defense counsel with the newspaper article until after defendant’s motion for new trial was heard and overruled, allocution had been afforded, and judgment entered and formal sentence pronounced. Consequently, from defendant’s standpoint the only potential objects of taint regarding the purported bias and prejudice, if such in fact existed with respect to defense counsel, were the trial judge’s denial of defendant’s motion for new trial and the formal pronouncement of sentence. This court’s rejection of all other charges of error leveled by defendant on appeal conclusively rebuts any claim that the trial judge’s purported bias and prejudice manifested itself when defendant’s motion for new trial was denied. Further, the fact that the formal sentence, when pronounced, echoed verbatim the assessment of punishment announced by the trial judge shortly after the jury returned its verdict, conclusively rebuts any claim that the trial judge’s alleged antipathy manifested itself when formal sentence was pronounced. Defendant’s fourth and final point, so viewed, fails to afford him any relief.

Judgment affirmed.

All concur.

      . In the vernacular of the street, a “$10.00 quantity”.

      . State v. Stock, 463 S.W .2d 889 (Mo.1971); State v. Davis, 450 S.W.2d 168 (Mo.1970); State v. Hammond, 447 S.W.2d 253 (Mo. 1969); and State v. Weinzerl, 495 S.W.2d 137 (Mo. App.1973).

      . As succinctly stated in State v. Decker, supra, 14 S.W.2d 1. c. 620, “[t]he law of the case comprehends the elements of the offense charged, as shown by the evidence” and “[e]ntrapment was one of the elements of the offense, for, if defendant was entrapped, he was not guilty, as we have shown.”

      . “After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence.”


author: PRITCHARD, Chief Judge.

text:
    CITY OF INDEPENDENCE, Respondent, v. Gerald D. PETERSON, Appellant.
    No. KCD 28662.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      Michael E. Reardon, Kansas City, for appellant; Duncan & Russell, Kansas City, of counsel.
    James S. Cottingham, City Counselor, Charles E. Sandage, Asst. City Counselor, Independence, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

Appellant had been convicted upon three counts,in the Municipal Court of the City of Independence, Missouri, for violation of traffic ordinances in failing to stop for three red traffic signal lights, and was there fined a total of $350.00 for the three offenses. On appeal to the circuit court, he was again convicted in a trial to the court of the three charges and was sentenced to 30 days confinement in jail on each offense, to run consecutively.

Appellant’s first point is that the infor-mations failed to set forth the material elements of the offenses as described in the city ordinances. Specifically, he contends that the informations failed to allege that the traffic lights were “official traffic devices placed under the provisions of this chapter.” [Chap. 18, Art. 4, § 18.064, City of Independence, Missouri Code of Ordinances.] In Point II, it is argued that the City did not prove that the traffic signals were “official” or that they were “placed under the provisions of this chapter.” These related points will be considered together.

The information of Uniform Traffic Ticket, No. 174727, charged appellant of the violation, “Failed to stop for the Red Signal Light at Winner and Sterling”; No. 174728, Failed to stop for a Red Signal Light at 15th Street and Sterling”; and No. 174731, “Failed to stop for a Flashing Red Light at Ash and 24 Highway.” § 18.064 provides: “Obedience to Traffic-Control Devices. Drivers of all vehicles except authorized emergency vehicles on official emergency trips are required to observe the instructions of all official traffic devices placed under the provisions of this chapter. Such devices shall include * * * all mechanical traffic signals, * * *. Such devices shall be held to have the same authority as the personal direction of a police officer.” Each of the informations here allege the violations of “Art. No. 4 Sec. No. 18 Para 064.”

Analogously, there are many civil cases, involving questions of negligence in the disobedience of traffic control devices, which hold that there is a rebuttable presumption that they were erected-legally by the appropriate governing authority. See the extensive annotation, 3 A.L.R.3rd, 180, 287, § 11, where, on the effect in civil cases of violation of a claimed unauthorized stop sign, it is said that the weight of authority is that “the party relying upon such disregard need not prove that the signaling device was authorized and maintained by virtue of, and in accordance with, statutory or administrative authority, and unless the other party proves a lack of such authority, there is a presumption of due authorization upon which the party asserting a disregard of the signal may rely.” See also the earlier annotation, 164 A.L.R. 8, 212, et seq., and the there cited case of Hartley v. McKee, 86 S.W.2d 359, 365[12] (Mo.App.1935), where it was contended that an instruction to the jury was in error because there was no evidence that stop signs were duly erected by proper authority. The court said, “We think there is no merit in this contention for the reason that there was no issue or dispute as to the existence of stop signs at the boulevard in question.” The same issue was in Sponsler v. Schroeder, 72 S.W.2d 150, 152 (Mo.App.1934), and the court said, “We think, under the circumstances here, the court should presume that the erection of the stop sign at the intersection in question was duly authorized. This is so especially in view of the fact that defendant permitted the proofs made by plaintiff as to the presence of the stop sign at the intersection, and the failure of defendant to stop his car in compliance therewith, to go in without any objection or suggestion that there was no showing that the erection of the stop sign had been authorized.” [The same is true here. Appellant made no objection to the evidence of the presence of the traffic control devices, that appellant went through the red lights, nor was there any suggestion at that time that they were not lawfully erected.]

Prosecutions for violation of a city ordinance are in this state regarded as a civil action with quasi-criminal aspects. Kansas City v. Howe, 416 S.W.2d 683 (Mo.App.1967); Kansas City v. Martin, 369 S.W.2d 602 (Mo.App.1963). These holdings not only make the above civil cases applicable with reference to the existence of a rebuttable presumption of lawful placing of traffic devices, but make relevant criminal cases from other jurisdictions which have applied the presumption. In State v. Cooper, 129 N.J.Super. 229, 322 A.2d 836 (1974) [cert. denied, 66 N.J. 329, 331 A.2d 28 (1974)], the defendant was convicted for failing to stop for a red traffic signal light, under a statute almost identical with § 18.-064, supra. On appeal, he contended that the state failed to prove that the traffic signal was placed in accordance with law. In rejecting the contention the court noted its determination that there existed a presumption as to the official nature and proper placement of traffic control devices in civil cases, and said, “Once the state has proved, however, that a traffic control device does exist in a specific location, it is to be presumed official and properly placed there. The burden of going forward and adducing evidence to rebut the presumption then falls upon defendant.” A like issue was in State v. Klapes, 2 Conn.Cir. 23, 193 A.2d 901 (Conn.App.1963). The court noted various state statutes which gave authority to towns or cities to erect stop signs within certain specifications [§ 304.120 2. RSMo (Amended by Laws, 1975, p. -, H.B. No.83, § 1), gives municipalities authority to make additional (to speed) rules of the road or traffic regulations to meet their needs, and to require vehicles to stop before crossing designated streets and boulevards] and said, “The common-law presumption is that public officers in the discharge of their duties have observed all proper formalities, unless the contrary is proved; and this presumption serves the purpose of evidence in making out a prima facie case. * * * In the present instance, it may be presumed as a matter of law that the traffic authority of Hartford acted in accordance with the law. * * * Facts that from ordinary observation appear ostensibly true may be considered true unless shown otherwise.”

Some cases seemingly hold to the contrary of the Cooper and Klapes cases, supra, but they may be distinguished. In State v. Berberian, 90 R.I. 274, 157 A.2d 816 (1960), apparently all the statutes and regulations with respect to locating safety zones were before the court, and regulation 12(a) required that such location be approved by the Bureau of Police and Fire, which fact the record did not show, and thus defendant’s conviction of driving over a safety zone was reversed. In State v. Callaghan, 46 N.J.Super 289, 134 A.2d 609 (1957), not only were the statutes prescribing size and height above the ground for signs on one-way streets before the court, but the evidence showed that the size and height above the ground were not in accordance with the statute, hence no presumption of lawful erection of the sign could be indulged. In People v. Gay, 5 Misc.2d 648, 164 N.Y.S.2d 526 (1957), the Vehicle and Traffic Law and Rules of the State Traffic Commission required that a stop sign be located at or near the intersection. The evidence showed that the stop sign, which defendant was charged with violating, was at that time located 175 feet north of the intersection, and had been moved after the alleged offense to a point 90 feet north of the intersection. Thus, there was evidence to show the stop sign had not been lawfully placed, and there was no basis to apply a presumption on that issue. Again, in State v. Adams, 273 Minn. 228, 140 N.W.2d 847 (1966), the evidence showed that the left turn regulatory sign which defendant was charged with violating was not erected in accordance with the Manual on Uniform Traffic Control Devices, for size, shape and location, which Manual was also before the court, and again no presumption could be applied that the sign was lawfully placed.

The common law presumption of proper performance of duties by public officials has been applied in this state. Johnson v. Haynes, 504 S.W.2d 308, 310 (Mo.App.1973); Martin v. Kansas City, 224 S.W. 141, 142[3] (Mo.App.1920); Scales v. Butler, 323 S.W.2d 25, 29 (Mo.App.1959). It follows, then, there being no evidence to the contrary, the traffic control devices in this case were lawfully erected, and as demonstrated, there was no additional burden of proof upon the city to show that they were lawfully erected. Because it was unnecessary for the city to assume that burden, it was further unnecessary for it to plead the lawful erection of the signals in the uniform traffic tickets. Points I and II are overruled.

By this last point appellant contends that there was a fatal variance between the charge of failing to stop “for a flashing red light at Ash and 24 Highway” and the proof which failed to show that it was a flashing device. The point is without merit because the evidence was that the light at that location was red and that appellant did fail to stop at the intersection, which is the requirement of obedience to the mechanical traffic signals under § 18.064, supra.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    Buddy Gordon MIKEL, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28669.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Application to Transfer Denied June 14, 1977.

      Clyde E. Rogers, Public Defender, Moberly, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Appellant pleaded guilty in 1970 to forcible rape and was sentenced to 10 years in prison. In 1974 he filed a motion to set aside the conviction under Rule 27.26, and the trial court sustained the motion. The State appealed, and this court reversed and remanded because of insufficient findings of fact. Mikel v. State, 528 S.W.2d 796 (Mo.App.1975). On February 3, 1976, the trial court entered new detailed findings of fact and conclusions of law, but this time denied appellant’s motion. Appellant now appeals that “ruling.

A threshold question of mootness calls for first attention. The State represents in its brief that the sentence under review was commuted on May 11,1976, and contends that this proceeding is moot because appellant is not in custody under the sentence sought to be vacated. Appellant in his reply brief does not deny the facts of commutation of sentence but nevertheless urges that this proceeding should not be dismissed as moot but rather that this proceeding should be considered as an application for a writ of error coram nobis. Appellant’s request is well taken, and this appeal will be determined on that basis. State v. Stodulski, 298 S.W.2d 420 (Mo.1957); Halley v. State, 485 S.W.2d 5 (Mo.1972); Stoner v. State, 507 S.W.2d 80 (Mo.App.1974).

The grounds, in condensed form, upon which appellant seeks to set aside this sentence are that the trial court was clearly erroneous in each of the following findings: 1) that sufficient inquiry was made at the hearing on the plea of guilty to determine whether appellant understood the nature of the accusation; 2) that appellant had received effective assistance of counsel; and 3) that the psychiatric report from the Fulton State Hospital was sufficient under § 552.202-3 RSMo 1969. None of those grounds is meritorious.

The skeletal procedural facts necessary for an understanding of the points on appeal are these. On January 8, 1970, Mr. W. F. Daniels was appointed attorney for appellant, promptly after filing of the complaint against him and his arrest. On February 16, 1970, Mr. Daniels filed a motion for psychiatric examination which was granted the same day, and defendant was sent to the State Hospital at Fulton for examination, observation and report. At the completion of the examination appellant was returned from Fulton on about April 9,1970, and a psychiatric report of the examination was filed with the trial court on April 14, 1970.

On the latter date, appellant was brought to the courthouse where he and Mr. Daniels conferred. At that time Mr. Daniels conducted negotiations with the prosecuting attorney, as a result of which a plea bargaining understanding was reached. Then on that same day, appellant was arraigned before the court, entered the plea of guilty, and the court entered sentence of 10 years imprisonment.

Immediately before accepting the plea of guilty, the trial court held a hearing which was attended by appellant, his counsel and the prosecuting attorney. The court asked the prosecutor to outline the facts of the offense. In response the prosecuting attorney stated that appellant, together with another young man, had accosted the victim while she was walking along the street, that the victim was forced at gun point into the car in which the two young men were riding; that appellant had the gun which he kept pointed at the victim; that the two men drove into the neighboring county where the two men each committed rape. The prosecutor’s statement ended with the following colloquy:

“MR. JAYNES: . . . At the scene of the alleged rape this defendant was the first person to try to have intercourse.
THE COURT: What do you mean try, did he or did he not, according to your evidence?
MR. JAYNES: From our evidence it would be legally sufficient that he had penetration, yes.
THE COURT: And was it against her will?
MR. JAYNES: Our evidence is that she submitted against her will at the coercion of the defendant.”

Immediately following, the court questioned appellant, commencing as follows:

“THE COURT: Very well. You have heard the Prosecuting Attorney state the charge against you, you understand you are charged with raping this girl, [stating her name], and that you actually penetrated her private parts with your private parts and such action was against her will, do you understand what you are charged with?
DEFENDANT MIKEL: Yes.
THE COURT: Do you admit that you intentionally committed this act?
DEFENDANT MIKEL: What do you mean, Your Honor?
THE COURT: That you did it knowing what you did, you intended to do it?
DEFENDANT MIKEL: Yes.”

The court went on to inquire of appellant whether he had discussed the guilty plea with his attorney; whether he understood he was entitled to a jury trial; whether he understood he was waiving right to a jury trial and the right to confront witnesses, whether he understood the guilty plea was a confession of guilt and waived constitutional privilege against self-incrimination; whether he had been threatened or coerced or received any promises to cause the guilty plea; whether he understood that any promises or deals were not binding upon the court; whether he understood the court would fix the punishment within a range of from 2 years to death; and whether with all that knowledge, appellant still wished to plead guilty, freely and voluntarily. Only after receiving satisfactory answers from appellant, did the court accept the plea.

I.

As the predicate for his first point, appellant relies on that portion of the court’s interrogation of the appellant quoted above. He argues that appellant’s initial response, “What do you mean, Your Hon- or?” shows that he did not understand the interrogation and serves to make the plea equivocal.

He bolsters that argument by referring to a statement in the report of psychiatric examination which undertakes to recite the facts of the offense and in that connection says that appellant forced the victim down “and unsuccessfully attempted to penetrate her.” Appellant attributes high importance to this matter of penetration on the theory that if he failed in that attempt, then he could be guilty only as an accessory. He phrases his argument in his brief as follows: “* * * the factual information in the record in this case indicates that Movant’s guilt of the crime of rape would be as an accessory rather than a principal. * * * If Movant was charged in fact as an accessory then this should have been developed in the examination at the time the plea was entered in order to ascertain Movant’s understanding of the nature of the charge against him.”

This argument contains two basic fallacies. In the first place, the record as a whole shows that the matter of penetration had been brought into sharp focus by the court’s questioning of the prosecuting attorney. Appellant was present at that time and had to be aware of the court’s concern with the question and with the assurance by the prosecutor that “From our evidence it would be legally sufficient that he had penetration, yes.” Taken in this context, it cannot reasonably be said that appellant was unaware of the elements of the crime. Robinson v. State, 482 S.W.2d 492 (Mo.1972); White v. State, 530 S.W.2d 444 (Mo.App.1975); Williams v. State, 508 S.W.2d 211 (Mo.App.1974).

Moreover, the importance which appellant seeks to attribute to the question of whether he achieved penetration is grossly exaggerated. Whatever the fact may have been with respect to penetration by appellant himself, the record indicates no question whatsoever about the fact that his companion did achieve full penetration in his act of rape. The two young men had acted together throughout this whole episode, and appellant plainly was guilty of aiding and assisting his companion’s act of rape. The distinction which appellant’s present counsel (who was not his counsel at the trial stage) insists on trying to draw between accessory and principal has been abrogated in Missouri by § 556.170 RSMo 1969. Appellant’s aid and assistance to his companion, which would have made appellant liable as an accessory at common law, now renders him liable as a principal. State v. Drope, 462 S.W.2d 677 (Mo.1971); State v. Sheard, 276 S.W.2d 191 (Mo.1955); State v. Sheard, 276 S.W.2d 196 (Mo.1955). Whether or not appellant himself committed an act of penetration therefore is essentially immaterial to his guilt of rape as charged.

II.

With respect to appellant’s second assignment of error, namely the alleged ineffective assistance of counsel, the starting point for discussion must be that any such ineffectiveness is immaterial except as it may bear on the voluntariness and understanding nature of the plea of guilty. White v. State, supra; Williams v. State, supra' Miller v. State, 498 S.W.2d 79 (Mo. App.1973); Hall v. State, 496 S.W.2d 300 (Mo.App.1973). None of the complaints now made of the representation afforded appellant by his initial counsel Mr. Daniels can be said to deprive appellant’s plea of a voluntary and understanding quality.

Considerable complaint is now made as to the adequacy of the time which Mr. Daniels spent with appellant prior to the plea and the fact that Mr. Daniels’ investigation consisted almost entirely of listening to appellant’s statement of the facts and reading the contents of the prosecuting attorney’s file. However, appellant has wholly failed to prove that any additional investigation would have turned up anything helpful to his cause and he therefore has not made the necessary showing of prejudice from the lack of some further investigation. Curry v. State, 504 S.W.2d 97 (Mo. 1974); McKnight v. State, 497 S.W.2d 201 (Mo.App.1973). Appellant now lays much stress on the fact that Mr. Daniels did not investigate and explore the statement in the psychiatric report which indicated that appellant’s attempt to rape the victim did not result in a successful penetration. It is unnecessary to dwell on this matter any further than to repeat what has already been said under Point I of this opinion, that penetration by appellant’s own act was unnecessary as an element to his guilt; he was in any event guilty as a principal based on the rape committed by his companion.

The fact is of no consequence that Mr. Daniels did not press for a hearing before the court respecting the conclusions reached by the psychiatric examiner. The mere fact that the trial court had ordered a psychiatric examination did not establish a bona fide doubt as to appellant’s mental competence. Boyer v. State, 527 S.W.2d 432 (Mo.App.1975); Jones v. State, 505 S.W.2d 96 (Mo.App.1974). The negative finding contained in the psychiatric report vitiated any previous doubt which may have existed in that regard. Anderson v. State, 493 S.W.2d 681 (Mo.App.1973). Mr. Daniels had never even at the beginning had any substantial reason to doubt appellant’s ability to understand and to communicate with him; Daniels testified that his reason for requesting the mental examination was simply “out of an over abundance of caution” to avoid future criticism. Absent any grounds for entertaining a substantial doubt concerning the accuracy of the psychiatric report or making its conclusion suspect, Mr. Daniels was under no obligation to seek further psychiatric examination or to request a court hearing to test the report given by the Pulton State Hospital. Davis v. State, 517 S.W.2d 97 (Mo.1974); Collins v. State, 479 S.W.2d 470 (Mo.1972); Ervin v. State, 525 S.W.2d 381 (Mo.App.1975).

Appellant now sharply challenges the sufficiency of Mr. Daniels’ representation on the ground that Mr. Daniels did not tell him of his right to seek a second psychiatric examination at his own expense or to challenge the report submitted by the Fulton State Hospital. However, in this case there was no apparent reason to challenge the report. The facts of this case are therefore akin to those in Jones v. State, supra, where the attorney was held not at fault for ineffective assistance even though he did not advise the defendant of the statutory right to challenge the report of the first and only psychiatric examination.

Appellant relies heavily on the decision in Hall v. State, supra, to establish the ineffectiveness of representation by Mr. Daniels. The facts of the Hall case were far different from those in the case at bar, and that decision affords no support to appellant here.

III.

For his final point, appellant contends that the trial court failed to follow the procedural requirements of § 552.020-3. His first argument in this regard is that the statute requires that the report include an opinion as to whether the examinee “as a result of mental disease or defect was incapable of conforming his conduct to requirements of law.” Although the report from the Fulton State Hospital did not specifically direct itself to that particular, the report did find that “the accused has no mental disease or defect within the meaning of Section 552.010” and that finding can be understood as including a determination that appellant did not suffer from any uncontrollable impulse making him incapable of conforming his conduct to law. Even if the report were to be held insufficient in this regard, that would avail appellant nothing at this stage because the deficiency would amount to no more than mere trial error which cannot be reviewed either under Rule 27.26 or in an application for a writ of error coram nobis. Bledsoe v. State, 456 S.W.2d 4 (Mo.1970): Campbell v. State, 515 S.W.2d 453, 455 (Mo.1974). Furthermore, the plea of guilt waived any and all alleged procedural infirmities antedating the plea. Williams v. State, supra.

Appellant also argues strongly that the trial court was under a duty “to do one of two things: make a determination and finding of record on the basis of the report filed; or, hold a hearing on its own motion.” No such duty existed. There being no basis for a bona fide doubt as to the correctness of the psychiatric report, the court was not obligated to hold a hearing. Davis v. State, supra; Collins v. State, supra; Newman v. State, 481 S.W.2d 3 (Mo.1972); Anderson v. State, supra; Miller v. State, supra; Boyer v. State, supra.

Nor was the failure to make a determination and finding of record on the basis of the report a fatal procedural error. The acceptance and approval of the report by the court was necessarily implied from its acceptance of the appellant’s guilty plea. As stated under like circumstances in Maggard v. State, 471 S.W.2d 161, 164 (Mo.1971):

“On the record of this case, it is clearly inherent in the determination by the trial court to permit appellant to waive jury trial and, on a subsequent date, to enter a plea of guilty that the trial court found appellant to be competent to assist in his own defense as well as competent to intelligently, knowingly, and voluntarily waive jury trial and enter a guilty plea.”

Stated slightly differently, the acceptance of the plea is equivalent to a determination of the defendant’s mental competence. Miller v. State, supra; Jones v. State, supra.

Appellant argues that the trial court could not have impliedly approved the report because there is no showing of record that the trial judge had ever seen the report or had its contents called to his attention prior to appellant’s plea of guilty. The conclusion sought to be drawn by appellant does not follow. Davis v. State, supra, holds contrary to appellant’s contention. In Davis, Judge Blair ordered a psychiatric examination but before a report could be received the case was transferred on change of venue to Judge Hoffman. Judge Hoffman accepted a plea of guilty but the record was devoid of any evidence that Judge Hoffman had ever seen or considered the report. The Supreme Court held that Judge Hoffman’s failure to make a finding or hold a hearing did not deny due process to the defendant. So also in Anderson v. State, supra, the defendant was sent for psychiatric examination. After he returned but before the psychiatric report was actually received and filed, defendant pleaded guilty and the plea was accepted by the court. The evidence showed that the defendant knew what the conclusion of the report would be even though it was not yet actually filed at the time of the plea proceeding. The acceptance of the plea was upheld, the appellate court holding, “the guilty plea being entered under these circumstances attests that movant had effectively waived his right to contest the examining psychiatrist’s finding of competency and his right to a further examination or hearing by the court.”

Appellant takes the rather strange position that there could be an implied waiver of his right to challenge the psychiatric report if the statutory 5 days had expired after the filing of the report and before the plea of guilty; but he insists that there can be no such implication and that any waiver must be express if it is to be effective within the 5 day period for making challenge. The attempted distinction between express and implied waiver is mistaken. Appellant cites no authority for his contention, and it cannot be supported on principle. The Anderson opinion just quoted is to the contrary. The only question is whether he was competent to make a waiver of the 5 day provision. If he was competent, he could waive at any time; if he was not competent, the passage of 5 days time could not make him so.

Appellant cites and relies heavily on Miller v. State, supra, in which this court reversed a conviction on a plea of guilty and remanded for the purpose of further inquiry into the competency of the defendant. The facts of that case were, however, completely unlike those presented here. In Miller, the attorney who represented the defendant at the time of the guilty plea testified at the 27.26 hearing that he believed and had always believed that the defendant was actually “crazy” but he did nothing to bring his belief to the attention of the psychiatric examiner whom he knew personally, nor did he bring to the attention of the trial court his serious doubts about his client’s competency to proceed. Moreover, in Miller there was a showing that the defendant had had a long history of mental illness with prior mental hospitalization and the trial judge himself remarked at the time of sentencing, “I know this young man needs professional psychiatric help and I hope he can get it before it is too late.” Thus in Miller, there was a very ample basis upon which to have a bona fide doubt as to the soundness of the psychiatric report. No similar showing has been made in the present case.

The findings of the trial court were not clearly erroneous. Appellant has therefore not shown himself entitled to any relief. State v. Stodulski, supra; Stoner v. State, supra.

Affirmed.

All concur.