author: FLANIGAN, Judge.

text:
    Delores COLE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10906.
    Missouri Court of Appeals, Springfield District.
    Sept. 29, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 20, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Jack N. Bohm, Stoup & Bohm, Kansas City, for movant-appellant.
    John Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TITUS, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Movant Delores Cole appeals from a denial of her Rule 27.26 motion to set aside a judgment and sentence for murder in the second degree. On movant’s direct appeal from her conviction this court affirmed the judgment. State v. Cole, 647 S.W.2d 494 (Mo.App.1977). After holding an evidentia-ry hearing on the motion, the trial court, in denying it, made findings of fact and conclusions of law as required by Rule 27.26(i).

Movant’s first “point relied on” is that a series of incidents, each taking place after the jury had commenced its deliberations, was “so coercive as to deny movant her constitutional right to trial by jury,” and that the trial court erred in finding otherwise. The incidents of which complaint is made involved actions on the part of the trial judge in dealing with the jury. They are: (1) giving MAI-CR 1.10, the “hammer” instruction, (2) eliciting the information that the jury was split 10 to 2, (3) refusing to excuse juror Beard for health reasons, (4) giving a “second informal hammer instruction,” and (5) making this statement to the jury: “Gentlemen, the court, in view of a 10 to 2 split, at this time is going to ask you to return tomorrow morning for further deliberations.”

Rule 27.26(b)(3) reads: “A proceeding under this Rule ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.”

The distinction between “mere trial errors” and “trial errors affecting constitutional rights” is sometimes difficult to make. Both classes of errors may involve the same general field of the law. The magnitude of the error, as distinguished from its type, may be the factor which controls its classification.

Each of the five incidents of which mov-ant complains was mentioned and four were challenged in her motion for new trial. All were abandoned on her original appeal. Unless it may properly be said that the challenged incidents were “trial errors affecting constitutional rights,” movant’s first point may not be raised in this proceeding. Covington v. State, 467 S.W.2d 929, 930[1, 2] (Mo.1971). Whether or not movant is properly entitled to raise her first point in this proceeding, a question which is left unresolved, this court has reviewed the challenged incidents and has concluded that there was no error of either class and that movant’s first point has no merit.

Each of the five incidents occurred near the close of the first day of the two-day trial. Having commenced its deliberations at 2:32 p. m., the jury returned to the courtroom, without reaching a verdict, at 5:02 p. m. Incident 1 then took place. The jury retired for further deliberations at 5:08 p. m. and returned to the courtroom at 5:25 p. m. Incidents 2, 3, 4 and 5 then took place. At 5:35 p. m. the court recessed the trial until the following morning. On that day deliberations were resumed at 9:00 a. m. and the verdict was returned at 10:13 a. m.

The giving of MAI-CR 1.10 is discretionary with the trial court. State v. Carroll, 562 S.W.2d 772, 773[4] (Mo.App.1978). Here it was given after the jury had deliberated two hours and thirty minutes without reaching a verdict. The giving of MAI — CR 1.10 has been approved after a jury has deliberated a longer period of time, State v. Cook, 512 S.W.2d 907, 910[6] (Mo.App.1974), and a shorter period of time, State v. Doepke, 536 S.W.2d 950, 951[6] (Mo.App.1976).

The jury foreman informed the court that four or five ballots had been taken, that some changes had occurred in the balloting, and that the last two ballots were the same. The following then occurred:

“THE COURT: Do you believe that further discussions at this point would assist you?

MR. JOHNSTON: You mean from—
THE COURT: Those among yourselves?
MR. JOHNSTON: No, sir.”

Thereupon the court gave MAI-CR 1.10. The verdict was not returned until the following day and after additional deliberations, in two steps, of one hour and thirty minutes. Under these circumstances the record does not demonstrate an abuse of discretion on the part of the trial court in the giving of MAI-CR 1.10. State v. Letourneau, 515 S.W.2d 838, 844[9] (Mo.App.1974) and authorities there cited.

It was not “coercive per se” for the trial judge to elicit the information that the jury was split 10 to 2. State v. Talbert, 454 S.W.2d 1, 4[7] (Mo.1970); State v. Smith, 431 S.W.2d 74, 86[31] (Mo.1968). Unlike the situation in State v. Sanders, 552 S.W.2d 39 (Mo.App.1977), upon which movant principally relies, the trial court here elicited only the numerical aspect of the split and did not know the issue on which the jury was split nor how the majority stood.

When the jury returned to the courtroom at 5:25 p. m. the court told juror Beard that the court had been advised that Beard “may have a health problem.” A colloquy between the court and Beard ensued. At the outset Beard told the court, “I would rather request to get out on account I don’t feel good.” The court said, “Well, I can’t release you at this point.” Movant challenges the propriety of the latter remark. A reasonable construction of the statement, however, in context with the rest of the colloquy is that the court meant that he was going to ask Beard several questions before reaching a decision on the matter of excusing him.

Although the specific nature of Beard’s illness, if such it was, is not disclosed by the record, Beard told the court that he felt his health would be endangered “by further deliberation at this time.” That statement doubtless figured in the court’s decision to grant a recess until the following day. The court inquired of Beard whether or not his health “would permit further deliberations tomorrow morning”; Beard replied that he did not know. The court expressed solicitude for Beard’s condition and stated he would not allow the proceeding to have any ill effect upon Beard’s health. It was in conjunction with that statement that the court made the remark which movant labels “a second hammer instruction.” The remark was, “It is always advantageous to give a verdict in a given case.” Viewing the latter remark in its context, this court finds, as did the trial court, that it does not possess the quality of coerciveness which movant attributes to it.

Further questioning by the court with regard to Beard’s ability to deliberate the following morning elicited this response from Beard: “I wouldn’t say about that because it depends on how I get to feeling.”

In recessing the trial until the following day the court said to the jury: “Gentlemen, the court, in view of the 10 to 2 split, at this time is going to ask you to return tomorrow morning for further deliberations.” The foreman had previously informed the court that the jury was so split.

The trial court did not abuse its discretion in refraining from excusing juror Beard immediately upon receiving his request and in questioning Beard concerning his ability to resume deliberations on the following day. There is nothing in the record to show that Beard’s indisposition, whatever it was, was one of an emergency nature. Beard’s request to be excused was short of being an insistent one, and Beard himself agreed with the trial court that his ability to resume deliberations the following day could better be gauged when that day came. The record of the proceedings on the second day makes no reference to Beard or his condition. During and following the colloquy between the court and Beard, counsel for movant made no objection to the incident and requested no relief of any nature.

Although this court has access to the conversation between Beard and the trial court, the latter had the opportunity to observe Beard’s condition and the degree of fervor of his complaints. Clearly the trial court was in a superior position to evaluate the situation and determine the necessity for excusing Beard. The record does not demonstrate that the trial court abused its discretion in the handling of the Beard incident. In this proceeding the trial court found that such handling was “not coercive.” This court holds the finding to be not “clearly erroneous.” Rule 27.26(j).

The trial court found that, viewed in context, the passing reference to the 10 to 2 split, made by the court in recessing the trial, was not tantamount to coercion. This court agrees with that finding and holds that it was not “clearly erroneous.” Rule 27.26(j).

Movant’s second “point relied on” is that movant was deprived of effective assistance of counsel at the murder trial in that her trial attorneys, Claude T. Wood and Dale H. Close, were derelict in six particulars. Four of the charges of dereliction pertain to counsel’s conduct in the trial court and two pertain to counsel’s conduct in this court.

Counsel’s alleged derelictions in the trial court are set forth in these sub-points:

1. Failure to make an adequate investigation.
2. Failure to adduce evidence of mov-ant’s good character.
3. Failure to “offer to the trial court a plain statement of the reasons for the admissibility” of certain evidence because of counsel’s “lack of preparation or unfamiliarity with the rules of evidence.”
4. Failure to cross-examine the state’s witnesses concerning certain conditions existing in the tavern at the time of the offense.
“The burden of proof to establish the charge of ineffective assistance of counsel is on the movant. This burden is not met unless it is clearly demonstrated that the acts of counsel went beyond errors of judgment or trial strategy and were of such character as to result in a substantial deprivation of movant’s right to a fair trial.” Myrick v. State, 507 S.W.2d 42, 44[2] (Mo.App.1974). The burden upon movant to show ineffective assistance of counsel is a “heavy” one. Stevens v. State, 560 S.W.2d 599, 600[8] (Mo.App.1978); Pickens v. State, 549 S.W.2d 910, 912[2] (Mo.App.1977) (“particularly heavy”); Lahmann v. State, 509 S.W.2d 791, 794[7] (Mo.App.1974).

A movant who bases his claim of ineffective assistance of counsel upon the ground of inadequate investigation has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of substantial evidence by counsel’s neglect. Bibee v. State, 542 S.W.2d 540, 541[1] (Mo.App.1976).

Movant makes no claim that her trial attorneys failed to make any investigation. In support of her assertion that her attorneys failed to make an adequate investigation movant charges that counsel failed to discover Delbert Moore, Bennie Coleman and Bill McCabe and to present their testimony at trial. Movant did not call Moore, Coleman or McCabe to testify at the motion hearing.

The crime was committed in a tavern and approximately 90 persons were present when the shooting took place. Movant’s brief concedes that McCabe had no personal knowledge of the significant events and that his testimony would have been hearsay. The fact is that McCabe did testify at the original trial (as to other matters) as a defense witness.

In support of her complaint concerning the non-production of Moore and Coleman at the original trial, movant relies solely upon the contents of their affidavits contained in the transcript of the original trial. The affidavits themselves were hearsay and movant made no attempt to introduce them into evidence at the motion hearing. If they had been received into evidence the trial court was not required to lend credence to their contents. Even if it be assumed, arguendo, that movant is entitled to the benefit of the contents of the affidavits, her contention fails.

Moore and Coleman stated, in their respective affidavits, that they left the tavern “hurriedly,” “immediately after the shooting.” The record is devoid of any proof that a reasonable investigation on the part of counsel would have disclosed that either Moore or Coleman was among the 90 people present in the tavern or that either of them had any information of significant value to movant’s defense.

The efforts of the trial attorneys to obtain a new trial on the basis of the Moore and Coleman affidavits demonstrate that counsel regarded their testimony as helpful and made every effort to utilize it once it came to light. The trial court found that both Mr. Wood and Mr. Close interviewed “various potential witnesses prior to the trial.” The trial court also found that mov-ant failed to show that “a fuller investigation by counsel prior to the trial" would have disclosed Coleman or Moore. These findings are not “clearly erroneous.” Mov-ant’s sub-point 1 has no merit.

In support of sub-point 2 movant introduced at the motion hearing the testimony of four people, each of whom expressed his personal view as to movant’s character. Movant charges that her trial attorneys were derelict in “not putting on such evidence.” The flaw in movant’s position is that the testimony adduced at the motion hearing would not have been admissible at the trial.

In State v. Antwine, 506 S.W.2d 397, 399[2] (Mo.1974) our supreme court discussed the admissibility of testimony concerning the accused’s good character. It pointed out that the personal opinion of a witness as to the character of an accused “is immaterial and is not admissible.” The court further stated, “It is only the knowledge of the witness of an accused’s reputation in the community that is material.” It is testimony of the latter type which an accused may properly present. The testimony adduced by the movant at the motion hearing was of the inadmissible “personal opinion” variety.

Movant made no showing that there was character evidence available which would have been admissible under the rule in Antwine. Moreover, attorney Close, testifying for movant at the motion hearing, said, “I did not believe that evidence of [movant’s] good character would be particularly useful.” The trial court found that the decision not to “inject the character of movant” was a matter of trial strategy. That finding is not “clearly erroneous.” Sub-point 2 has no merit.

In support of sub-point 3 movant in effect is arguing that evidence which was offered by her trial counsel but excluded by the court should have been received into evidence. Movant claims that counsel should have been more persuasive in his attempt to induce a favorable ruling. This is an ingenious attempt to circumvent that provision of Rule 27.26(b)(3) which provides that mere trial errors are to be corrected by direct appeal.

The error, if any, was that of the trial court in not receiving the offered evidence. There was no dereliction on the part of counsel who made the offer. Counsel obviously felt the evidence was admissible for they offered it and they were not derelict in failing to anticipate an erroneous ruling.

The responsibility of trial counsel is a heavy and sobering one, especially in a trial of this sort. That responsibility is not to be enhanced by blaming trial counsel for the human failings which all judges, trial and appellate, are heir to.

The specific evidence offered by trial counsel and rejected by the trial court has been reviewed, gratuitously, and this court finds that movant was not deprived of a fair trial by reason of its exclusion. Sub-point 3 has no merit.

By her sub-point 4 movant charges trial counsel with ineffectiveness consisting of inadequately cross-examining state’s witnesses. This court has reviewed the transcript of the murder trial. The state presented nine witnesses. Each was cross-examined by defense counsel. The topics which movant claims should have been stressed on cross-examination were in fact explored. The extent of cross-examination is almost always a matter of trial strategy. The attorneys who represented movant at the murder trial did an excellent job of cross-examining and they are not to be faulted because movant’s instant (and able) counsel might have employed a different technique. Coles v. State, 495 S.W.2d 685, 687[6] (Mo.App.1973). Sub-point 4 has no merit.

Counsel’s alleged derelictions in this court are set forth in these sub-points:

(5) Failure to press on appeal the “issue of jury coercion” and the issue of the correctness of the trial court’s exclusion of the evidence mentioned in movant’s sub-point 3;

(6) Failure to “communicate to the court of appeals the true state of the record.”

These claims of counsel’s inadequacy on appeal are matters for determination by this court rather than the trial court. Hemphill v. State, 566 S.W.2d 200, 208[15, 16] (Mo. banc 1978). In compliance with the Hemphill procedure movant filed in this court a motion to recall the mandate issued in the original appeal, to vacate the sentence of affirmance and to redocket the original appeal for rehearing. This court accorded movant a hearing upon the complaints contained in subpoints 5 and 6. This court has concluded that neither sub-point has merit.

With respect to sub-point 5 this court, in the opening portion of the instant opinion, has dealt with the “issue of jury coercion.” This court finds that if the coercion issue had been presented on the original appeal, a reversal would not have been effected. Movant has received a review of the coercion issue. Although the standards of review in a Rule 27.26 appeal differ from those governing an original appeal, this court’s review of the facts underlying the alleged coercion has led it to the conclusion that counsel was not ineffective in concluding not to advance the point on the original appeal.

With regard to the evidence which the trial court excluded, it would serve no useful purpose to discuss it extensively. The state has conceded, and this court agrees, that the trial court erred in excluding it. However, the excluded evidence merely tended to show possible bias on the part of one of the state’s witnesses. The impeachment was on a matter totally collateral to what the witness observed in the tavern. This court has concluded that if the point had been presented on the original appeal it would not have effected a reversal and that trial counsel was not ineffective in failing to include the point on the original appeal.

Movant’s sub-point 6 is directed to a sentence contained in the opinion of this court which disposed of the original appeal. It is movant’s position that the sentence contained facts which were unsupported by the record. This court finds that the sentence was supported by the record or at least by inferences reasonably to be derived from it. More significantly, however, there was nothing in the appellate brief of movant’s trial counsel which induced this court’s alleged misinterpretation of the evidence. Surely counsel is not to be faulted for failing to anticipate a specific slip of the appellate pen. There was no slip and, if such there was, it was not due to ineffective appellate advocacy.

The judgment is affirmed.

All concur.

      . All references to rules are to Missouri Rules of Court, V.A.M.R.

      . “[I]t is a rare trial error that does not have some constitutional basis. Hearsay evidence denies a litigant the right of confrontation; State v. Sykes, Mo.App.1978, 569 S.W.2d 258); confessions almost always have Fifth Amendment implications; physical evidence taken from a defendant normally raises Fourth Amendment considerations; identifications frequently involve due process questions or right to counsel considerations; relevance may raise due process questions; voir dire questioning or failure to excuse a juror can present trial by jury problems; impeachment, enhancement of punishment, or application of the second offender act by prior convictions raise trial by jury, right to counsel, and due process difficulties. The list could go on. I simply do not believe that the last sentence of Rule 27.-26(b)(3) was intended to allow post-conviction relief for every non-objected to bit of evidence admitted which might be claimed to be constitutionally offensive. If that is what the sentence means, it is simply a euphemistic method of granting a second trial and/or second appeal contrary to the first sentence of the subpara-graph.” Turley v. State of Missouri, Mo.App. St.L.Dist., No. 36788, 571 S.W.2d 465 (1978)— concurring opinion of Judge Smith.

      . Movant introduced into evidence the file of attorneys Wood and Close. The trial court made a finding that the file “reveals notations of over 40 names on various work sheets which appear to have been used in trial preparation, as well as some notations as to knowledge or lack of knowledge various ones had about the case.” Movant called attorney Close who testified that he interviewed witnesses. Movant did not call attorney Wood.

      . See State v. Cole, 547 S.W.2d 494, 497 (Mo.App.1977), the original appeal, where the affidavits of Moore and Coleman are summarized. The affidavits were ruled inadequate to warrant a new trial on the basis of “newly discovered evidence.” This court stated that Moore’s testimony amounted only to impeachment. “We cannot say that [Coleman’s] testimony would probably produce a different result on new trial.”

      . “There is no clear rule on what constitutes sufficient case investigation; all that is required is investigation that is adequate under the circumstances of each particular case.” Pickens v. State, 549 S.W.2d 910, 912[5] (Mo.App.1977).


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    George P. BAKER et al., Plaintiffs-Respondents, v. RISS INTERNATIONAL CORPORATION, Defendant-Appellant.
    No. KCD29530.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.
    Application to Transfer Denied Dec. 18, 1978.
    Rodger J. Walsh, Kansas City, for defendant-appellant.

      David M. Claycomb, James, Odegard & Miliert, Kansas City, for plaintiffs-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

This appeal arises from an attempt by Riss to stay a general execution and garnishment thereunder. Riss has appealed from the trial court’s refusal to stay, set aside, or quash the writ of execution.

The execution arises from underlying litigation between Penn Central and Riss International. Penn Central filed suit against Riss in 1971, and Riss filed a counterclaim. In 1974, a judgment was entered against Riss in the amount of $1,594.54 and a separate judgment in favor of Riss and against Penn Central in the amount of $33,643.15. Those judgments are both final. Penn Central, on June 21, 1970, filed for reorganization under 11 U.S.C. § 205. Pursuant to federal law, the United States District Court for the Eastern District of Pennsylvania, where the reorganization plan was filed, enjoined creditors from setting off debts owed to them by Penn Central. This injunction was entered prior to the entry of the judgments in this case. The judgments would have been subject to set off under the law of Missouri absent that injunction.

At the outset, the motion of the trustees for Penn Central to dismiss this appeal must be considered. It would appear that Riss filed on March 22,1977 what amounted to a motion for a new trial directed to the trial court’s order to the garnishee to pay the money into the court. Thereafter, the trustees of Penn Central filed an additional pleading asking the court to direct the court administrator to release the garnished sums to the trustee. The trial court, on the basis of that last pleading, entered an order on the 10th of May, 1977, directing payment to the trustees of Penn Central of the sum held by the court administrator. Within ten days the notice of appeal was filed. The issue thus turns on whether the order directing payment of the funds held gave finality to the judgment or the order directing payment to the court. The issue has been squarely resolved that the final order in a garnishment proceeding is the order directing payment. In Orf v. Computer Institute, Inc., 480 S.W.2d 73 (Mo.App.1972), the court held that an order quashing a writ of garnishment is a final judgment, citing Flynn v. First National Safe Deposit Company, 284 S.W.2d 593 (Mo.1955), but that an order overruling a petition to quash execution of garnishment is not appealable because the order does not constitute a final disposition of the cause nor the merits of the garnishment proceeding. In Kalvar Corporation v. Burrow, 493 S.W.2d 48 (Mo.App.1973), the issue of finality of judgment was raised, and the court held that stipulation of the parties to the entry of an order by the trial court directing the payment of the monies in the registry of the court to the judgment creditor of the bankrupt constituted the final procedural step contemplated by the garnishment statutes and, thus, the judgment was final. The court mentioned in passing that the appeal in the Kalvar ease was, as in the instant case, an appeal from the adverse ruling on the motion to quash a garnishment. The court held that under the authority of World Franchisers, Inc. v. Birk, 456 S.W.2d 606 (Mo.App.1970), the defect in the notice of appeal which sought to review a nonappealable order was purely formal and that the notice of appeal would be treated as an appeal from the order directing the clerk to pay out the money from the registry of the court which is a final judgment in the case. The motion to dismiss the appeal as untimely is overruled.

Turning now to the merits of the Riss claim, it is clear that it cannot recover upon the theory it espouses. Riss argues that because the Riss judgment is greater than the Penn Central judgment, the writ of garnishment should have been quashed. Riss relies upon Missouri authority dealing with offsetting judgments. Those cases are not controlling in the present situation. This case is controlled by Baker v. Gold Seal Liquors. 417 U.S. 467, 94 S.Ct. 2504, 41 L.Ed.2d 243 (1974). The facts in Gold Seal are precisely the same as the facts in this case. There the plaintiffs had sought to recover freight charges against a shipper, and the shipper counterclaimed for cargo loss and damage. There was one net judgment entered against the Penn Central Railroad, which was the carrier in Gold Seal, as here. The Court of Appeals for the 7th Circuit affirmed at 484 F.2d 950 (7th Cir. 1973); the United States Supreme Court reversed the affirmance of the Court of Appeals and set aside the net judgment entered by the District Court. The reasoning of the Supreme Court of the United States was that entry of a net judgment had the effect of creating a preference in favor of one creditor because of the happenstance of the owing of freight charges by a claimant against the bankrupt. The same result has been reached in the Court of Appeals 3rd Circuit, In Re Penn Central Transportation, 453 F.2d 520 (3rd Cir. 1972), cert. denied, 408 U.S. 923, 92 S.Ct. 2493, 33 L.Ed.2d 334 (1972).

Riss argues that City of New York v. Patton, 390 F.Supp. 1001 (S.D.N.Y.1975), permits Riss to set off its judgment against Penn Central’s claim. Patton is clearly distinguishable since it involved a claim for rent incurred by the Trustees after the reorganization. Obviously, the trustees can be held to contracts they entered into in connection with the reorganization which is all that Patton holds. Patton does not affect the result to be reached in this case, which is that the judgment of the trial court should be affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    Emma K. JOHNSTON, Plaintiff-Appellant, v. Roger D. JOHNSTON, Defendant-Respondent.
    No. KCD 29574.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Martin M. Bauman, Dale, Flynn, Bauman & Liles, St. Joseph, for plaintiff-appellant.
    Don Pierce, St. Joseph, for defendant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The parties herein were husband and wife until their marriage was dissolved by the court below on August 2, 1976. In this decree of dissolution the appellant here (Emma) was awarded custody of the infant child, Dana, born of the marriage, and the respondent (Roger) was ordered to pay $30.00 per week for Dana’s support. No further action by way of appeal or otherwise occurred in the matter until, upon Roger’s motion to modify this custody award, the court below entered an order on May 2, 1977 modifying the original decree, awarded the custody of Dana to Roger, and terminated the child support. After an unsuccessful motion for a new trial and for allowance of attorney fees and costs, Emma appealed. This Court is now called upon to determine the issues thus raised.

For any comprehension of the tangled and bizarre background upon which this tragic situation must be viewed, reliance must be had upon an incomplete and unsatisfactory record.

The record does not show when Emma and Roger were married nor the exact date of Dana’s birth. Both agree, however, that on the date of the hearing on the motion to modify, May 2, 1977, Dana was three years old. Accordingly, on the date of the decree of dissolution of the marriage and the award of her custody to Emma, August 2, 1976, she was approximately two years old. At the time of both the decree of dissolution and the order of modification, Roger was a resident of Provo, Utah, having separated from Emma and moved there in approximately May 1976, while Emma continued to reside in St. Joseph, Missouri.

The incident which gave rise to the present proceedings occurred on February 19, 1976. At that time, Emma and Roger were living in St. Joseph as a family with their daughter Dana and two children born to Emma by a former marriage, Naomi and Terry, then 8 and 6 years of age. Roger was employed as an over-the-road truck driver and Emma worked for the Olympia Lanes Bowling Alley (Olympia) in St. Joseph. On February 19, 1976, Emma was not on duty, but in the evening she put on a jacket of Roger’s and went to Olympia. There, she was asked several times by a man whom she had seen there a number of times and was known to her as “Pete”, if she “had anything”. She responded that she did not. Later, she reached in her husband’s pocket and found five white pills which her husband referred to as “white crosses” and which he took “all the time” in connection with his truck driving, and gave them to the man she knew as “Pete”. Pete was an undercover law enforcement officer, further identified as named “Lipp”, but who does not appear further in any of the facets of this case. Emma testified that the pills were not hers but belonged to her husband, she did not know where he got them, and that she did not take them or other drugs. In the modification hearing, Roger denied that the pills were his. The “white crosses” were amphetamines, a Schedule II controlled substance.

Among the many inexplicable facts and procedures apparent in this record is that, while this incident occurred in February 1976, Emma was not arrested or confined to jail until January 3, 1977, two weeks prior to her guilty plea and just short of a year after the commission of the offense. During this time, she remained in St. Joseph and was employed at the State Hospital. Her arrest, guilty plea and sentence were after the decree of dissolution and the award of custody of Dana.

On January 17, 1977, Emma pleaded guilty to the felony with which she was charged, i. e. delivery of a controlled substance, which carried a penalty of five years to life imprisonment under the facts as above set forth. The prosecutor stated that the only previous offenses with which she had been charged were two traffic tickets, and he recommended suspension of imposition of any sentence. The court sentenced her on March 22, 1977 to sixty (60) days in jail, under a work permit, and placed her on probation for five (5) years. At the time of the hearing on the motion to modify, May 2, 1977, she was serving her jail time in the Buchanan County jail. (The beginning of this service was delayed by the necessity of surgery, which was apparently successful. When she was actually confined in jail does not appear). During her confinement in jail, Emma made arrangements to have her three children cared for in the Noyes Children’s Home, their grandmother (her mother) being physically unable to take full care of them.

At the completion of the evidentiary hearing on the motion to modify, the court below stated its reasons for the order of modification, as follows:

“THE COURT: * * * In view of the crime (of, sic) which Mrs. Johnston was convicted, the nature of the crime as demonstrated by the sentence of Judge Connett, and also the uncertainty as to the child’s future because of her five years on probation, I am going to modify the decree and grant custody of the child to the respondent.”

The order of modification transferred the custody to Roger and further provided that he be permitted “to remove the minor child to Provo, Utah”.

Emma’s Motions for a New Trial and for Attorney’s Fees and Costs were heard by the court below on May 27, 1977 and overruled. Although requested by counsel for Emma to have such proceedings taken down by the court reporter as part of the record, this was not done and, therefore, such record is not before this Court.

However, counsel filed his Affidavit to Supplement the Record which was in no way challenged and which became a part of the approved transcript herein, which states that after he made this request for recordation of the proceedings, the trial court refused such request, stating that such procedure would be a waste of the reporter’s time, and, excused the reporter from the courtroom. At the conclusion of the presentation of such motions, the court overruled the same, and a timely Notice of Appeal was filed on June 3, 1977.

In the face of the ruling denying attorney fees and costs made on May 27, 1977, the court below on July 13, 1977 ordered that Emma be permitted to pursue this appeal in forma pauperis, because she “is without sufficient funds to pay for said transcript and the costs of appeal”. It should also be here noted that the court sua sponte on June 14, 1977, after the Notice of Appeal had been filed, amended the Order of May 27, 1977 relating to allowance of attorney fees and costs by holding this motion “in abeyance for further consideration by the Court upon the filing of briefs in the Missouri Court of Appeals, Kansas City District”. Further, under date of July 13, 1977, the Court ordered that Emma be permitted to retain custody of Dana during the pendency of this appeal, under a $500.00 supersedeas bond.

Aside from this procedural maze, the following facts, basic to the decision of the appeal, may be gleaned from the record:

Emma was 32 years of age at the time of the occurrences above related; in good health (except for the surgery required following her guilty plea); gainfully employed and desirous of keeping her three children together as a family unit. The three children under her care apparently acted as siblings and nothing appears that would indicate it would be to Dana’s best interests that she be separated from her stepbrother and sister. Further details of the living conditions of Emma and the children are lacking in this record.

Roger, as stated above, is an over-the-road truck driver. He left St. Joseph and Emma and Dana and moved to Utah in about May of 1976. He made no appearance in the subsequent dissolution suit brought by Emma and made no attempt to secure custody of Dana until April of 1977, when he filed his motion to modify the decree. He testified that his average annual earnings were about $20,000.00 but he was unable to state how much he had contributed toward Dana’s support before the decree of dissolution and after he moved to Utah. He stated that he was paying child support for a child born of a previous marriage and just sent Emma the same amount by check. He had left the checks and all supporting records in Utah. Emma, however, stated that she had received from Roger $225.00 as support for Dana in 1976, and $175.00 in 1977, of which latter amount $100.00 was sent to her a week before the hearing on the motion to modify. It was apparently necessary for her to secure Aid for Dependent Children, which the authorities approved after the usual investigation.

Roger lived with his bride of one month in a two-room apartment in Provo, Utah but intended to get a larger place, if he was awarded custody of Dana.

Since the final separation, he had visited Dana three or four times for about a day on each occasion. He stated that Emma took good care of her children; that Dana was always clean, dressed properly and healthy in appearance when he visited her. He testified that his sole reason for asking for the custody of Dana was the conviction of Emma, as above related.

Holley Beth Johnston, Roger’s wife at the time of the hearing, testified that she was 20 years of age; they had been married one month; and, she was employed in a sewing factory from 8:00 a. m. to 4:00 p. m. She stated that she had never seen Dana, but was willing to quit her job and take care of her. She testified that Roger had sent funds for Dana’s support but had no knowledge of the dates or amounts of such payments.

The record is completely devoid of any other facts as to the living conditions, environment or life-style of Roger and Holley.

The appellant, Emma, raises seven assignments of error on this appeal. These will not be dealt with in the order briefed for reasons which will become obvious in the course of this discussion.

Point VII raised by appellant asserts error in the Court’s refusal of appellant’s request that the proceedings in court on the motions for a new trial and for attorney fees and costs be taken and preserved by the official court reporter. The only record of such refusal or other proceedings upon that occasion is the “Affidavit to Supplement Record”, which affidavit stands un-contradicted as a part of the approved transcript, which clearly and unequivocally sets forth counsel’s request and the Court’s refusal, but is silent as to the unrecorded proceedings directly relating to the motions thereafter.

Of course, this Court cannot consider matters not preserved on the record and contained in an approved transcript. State v. Hatten, 561 S.W.2d 706, 713 [9] (Mo.App.1978); § 512.110 RSMo 1969; Rule 81.12. The responsibility to provide a meaningful transcript for review devolves upon the appellant. Davis v. Long, 521 S.W.2d 7 [3] (Mo.App.1975). It is, of course, impossible for an appellant to supply a transcript of a record that the Court would not permit to be made.

While the official court reporter at the trial level serves under the direction of the judge, § 485.040, § 485.050 RSMo 1969, the mandate of the statutes is clear that at the direction (or request) of either party, the proceedings at the trial level should be recorded, preserved and included in the transcript on appeal where necessary to present a claim of trial error. Rule 81.12. The making of such a record, if requested, is not a matter for judicial discretion and the denial of a request to record proceedings because it would waste the reporter’s time constitutes an abuse of discretion. Such a denial effectively and completely forecloses appellant’s right to meaningful appellate review.

Respondent in his brief argues that this error is cured by the trial court’s amendment of its order relating to attorney’s fees and costs purporting to hold these matters “in abeyance for further consideration by the Court upon the filing of briefs” on appeal. When this amendment was entered, the post trial motions had been overruled and the Notice of Appeal had been filed. The court below had no jurisdiction to make the order. Further, it is difficult to arrive at any conclusion as to just what the order means. The filing of briefs in this Court could not breathe jurisdictional life into the court’s action. If the order meant that the trial court intended to withhold its ruling on attorney fees and costs until after this appeal is decided, such an order would constitute error, as was held in Larison v. Larison, 537 S.W.2d 438, 439 [1] (Mo.App.1976). In any event, the court’s order of June 14, 1977 did not correct the basic error inherent in the refusal to record and preserve the record on this facet of the case.

For her Point VI, appellant charges the court with an abuse of discretion in refusing to allow her attorney fees and costs. When application for such allowances are made, the discretion of the court is invoked, § 452.355 RSMo, 1973 Supp. This statute further limits the application of such discretion to a time “after considering all relevant factors including the financial resources of both parties * * * » gucjj an award is to be made to a petitioning wife (or mother, as here) upon a showing of her inability to prosecute or defend the action on her own, L.J.S. v. V.H.S., 514 S.W.2d 1, 9 [15] (Mo.App.1974), and a showing of the ability of the husband (or father, as here) to pay, S.G.E. v. R.L.J., 527 S.W.2d 698, 703 [6] (Mo.App.1975). As previously stated, this Court is without any record taken at the hearing on Emma’s application in this area. However, the record which has been preserved, though lacking in desirable detail, demonstrates Emma’s lack of financial resources. This conclusion is vitally bolstered by the trial court’s order permitting her to pursue this appeal in forma pauperis. Conversely, Roger’s testimony that his income was approximately $20,000.00 a year would indicate strong evidence of his ability to pay reasonable attorney fees and the costs, of a proceeding which he instituted. Other relevant evidence or factors considered by the trial court on this facet of the case are unknown to this Court, but upon the record presented (which can be the only basis for appellate review) an absence of the exercise of proper judicial discretion in ruling Emma’s application is evident and would require a mandate of reversal and remand.

However, this review does not end there. In Point V, appellant alleges error in the failure of the trial court, in its order changing the custody of Dana and permitting Roger to take her to Utah, to grant her reasonable visitation rights. While it is true that when such an order is silent on visitation rights, a natural parent’s right to reasonable access to her child remains unimpaired, Middleton v. Tozer, 259 S.W.2d 80, 85 [4] (Mo.App.1953), this rule has no practical application to the case at bar. Here, if the court’s custodial order becomes operative, Dana will be in Roger's custody in Utah and thus in truth inaccessible for visitation by her mother, one declared by the trial court to be without funds to prosecute her appeal. The realistic effect of such an order would be to remove the mother’s right to ever see her daughter in the foreseeable future. Such a harsh result would only be tolerated upon a judicial finding that visitation would endanger the child’s physical health or impair her emotional development. § 452.400 RSMo, 1973 Supp.; Rogers v. Rogers, 430 S.W.2d 305, 311 [8] (Mo.App.1968); Adoption of E. N. v. E. M. N., 559 S.W.2d 543, 545 [5] (Mo.App.1977). Judicial silence cannot be made a valid substitute for such required judicial finding. Appellant’s Point V is well taken.

The appellant’s first assignment of error (I) raised the court’s refusal to grant additional time in which to confer with her counsel in defense of the motion to modify and to prepare appropriate motions in the matter and to prepare her defense through discovery and investigatory procedures. The record shows that counsel for appellant made an oral request of the court for time for these purposes upon the basis that he had not had sufficient time to do so because his client, Emma, was serving her jail sentence and her necessary cooperation was not available to him. He stated that Emma was agreeable, if such additional time was granted, that the court enter a temporary custody order pending a later full hearing. This request was denied. There can be no doubt that the discovery proceedings authorized by Rules 56 and 57 are ordinarily available to the parties in proceedings to modify a divorce (or dissolution) decree pertaining to custody and support. State ex rel Hoffman v. Campbell, 428 S.W.2d 904 (Mo.App.1968). However, this assignment of error need not presently be further discussed, in view of the decision here reached on this appeal.

Appellant Emma’s remaining assignments of error may be dealt with together since each of them strikes directly at the propriety of the ultimate judgment granting the change of custody of the three year old child from her natural mother to the father, for residence in Utah. These points are that the court erred in not considering respondent Roger’s prior conduct (II); in not ordering a full investigation and report, as provided in § 452.390 RSMo, 1973 Supp., with regard to the proposed custodial arrangements for Dana, before ordering her custody changed (III); and, removing the child of such tender age from the custody of her mother without any clear showing that past and continued custody by the mother has been or will likely be detrimental to the child (IV).

Generally, appellate review of child custody matters will not result in a reversal of the trial court’s judgment unless the judgment is not supported by substantial evidence or the record clearly demonstrates an abuse of discretion or the appellate court has a firm belief that the welfare of the child requires some other disposition. In re Marriage of L_ M_, 541 S.W.2d 760, 761 [2] (Mo.App.1976); In re Marriage of L_, 548 S.W.2d 262, 263 [3] (Mo. App.1977). These restrictions on the scope of review have been recently given clear delineation in Murphy v. Carron, 536 S.W.2d 30, 32 [1] (Mo. banc 1976). In Murphy, the court further extended the scope of such review to include a reversal if the appellate court finds that the judgment is against the weight of the evidence, but adds a caveat that such appellate power should only be exercised if accompanied by a “firm belief that the decree or judgment is wrong.”

The compelling and overriding (and indeed, only) concern of the courts at all levels must be the welfare of the child. The thrust of the points raised by the appellant here and her supporting arguments is that the court below exercised its judicial discretion in a summary and punitive manner because of Emma’s conviction and sentence as above described. The law is clear that custody proceedings may not be used to reward or punish a parent, V.M. v. L.M., 526 S.W.2d 947, 949 [4] (Mo.App.1975); L_ v. N_, 326 S.W.2d 751, 754 [4] (Mo.App.1959). Indeed, the trial court’s denial of appellant’s request that a record be made of the proceedings on her motion for a new trial and for attorney fees and costs, and its refusal to allow same and its denial of any visitation rights to the mother demonstrate a punitive pattern from which the ruling on the custody of Dana cannot escape blemish.

Particularly is this true in the light of Emma’s previous clean record, her work record and the fact, admitted by Roger, that she took good care of Dana and her other children. The reason (other than the conviction and sentence) stated by the court that Emma would be under a five-year probation, is not convincing, since it is necessarily predicated upon the speculation that she would violate that probation. If such violation occurred, the trial court had continuing jurisdiction to take whatever steps were necessary as to Dana’s custody and welfare, as the then situation warranted.

Further, the record is convincing that the father, Roger, abandoned Emma and Dana in May of 1976; made no appearance nor any effort to gain custody of Dana in the dissolution of marriage proceedings; was not interested enough to find out the court’s award for child support; and, had not, in fact, made any substantial contributions to her support since he moved to Utah.

The record also is silent as to the environment into which the court delivered Dana by its judgment, except as to Roger’s earnings as an over-the-road truck driver, his intention to acquire larger living quarters, and the fact that his 20-year old bride of one month, who had never seen his daughter, was “willing to take care of her”.

The entire proceedings below were conducted in so summary a fashion as to cause a firm belief that it was fundamentally unfair to appellant, lacking in the careful consideration for the welfare of the child, and the judgment was not supported by competent, substantial evidence that her best interests would be served by the change of custody.

The judgment below in its entirety is reversed and the cause remanded for retrial. It is further ordered that the appellant be allowed reasonable attorney’s fees and expenses for past and future proceedings herein, including this appeal, to be set by the Circuit Court of Buchanan County, Missouri; that appellant’s supersedeas bond be discharged and that the court costs on this appeal are assessed against the respondent.

All concur.


author: DIXON, J.

text:
    Alan B. FEINGOLD, Plaintiff-Respondent, v. BUCKEYE DEVELOPMENT COMPANY, Defendant-Appellant.
    No. KCD 29652.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Alan E. South, Crews, Milliard & South, Kansas City, for defendant-appellant.
    Michael H. Fishman, Jeffrey S. Henry, Kuraner, Dingman, Schwegler, Kinton & Lowe Professional Corp., Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, J.

The plaintiff-lessee brought an action in several counts against the defendant-landlord. The trial court found in favor of the plaintiff on Count I of plaintiff’s petition and found for the defendant on the remaining counts and against the defendant on a counterclaim. Only the judgment against the defendant on Count I is involved in this appeal.

In this court-tried case, the issue to be determined on appeal involves a written lease agreement. Plaintiff entered into this lease in November of 1971 with LPF Plastics Corporation. In 1974, while plaintiff was still a tenant, the Columbia Union National Bank foreclosed its mortgage on the building. Plaintiff remained in possession and paid rent to Columbia. On October 1, 1974, the defendant purchased the building from Columbia. The record is silent as to the date of foreclosure. In later October, the plaintiff was notified to begin making rent payments to the defendant. The particular dispute between the parties arises out of a paragraph of the lease which provided specifically that the lessor should furnish and pay for all utility charges. A dispute arose between the parties concerning this provision of the lease and, in November and December of 1974, the defendant attempted to discuss with the plaintiff the possibility of renegotiating the lease agreement in connection with the cost of the utilities. In any event, the defendant terminated electrical services to the plaintiff on July 15, 1976. The plaintiff then filed the suit resulting in the judgment for the utility costs sustained by the plaintiff. The finding of the trial court was that the lease was unambiguous and provided that utility services be provided at the cost of the defendant.

Defendant urges a single point on this appeal — that the lease was extinguished by the foreclosure, and, therefore, the trial court erred in rendering a judgment based upon the lease. A review of the pleadings, the evidence, and the trial court’s memorandum makes it indisputably clear that the case below was tried on the theory that the lease was a binding document. At the trial, it was the defendant’s theory that the lease contract was ambiguous and defendant could rely upon other evidence concerning the dealings between the parties to provide a basis for his denial of the utility services. The defendant is raising a new theory on this appeal, a theory not presented to the trial court by the pleadings or the evidence. A party is bound by the theory upon which he tried his case. Cook v. Bolin, 296 S.W.2d 181 (Mo.App.1956). A party is not permitted to change his theory on appeal. McIlroy v. Hamilton, 539 S.W.2d 669 (Mo.App.1976). Recognizing the difficulty of the case in the face of that well-entrenched principle, the defendant, in his reply brief, asserts that the written lease was never proved. That simply flies in the face of the record which demonstrates that the lease was in evidence and that the parties tried the case upon the theory of ambiguity alone. The parties have extensively briefed and argued the issue of whether or not extinguishment by foreclosure is an affirmative defense. Forty Four 0 One Hampton Realty Company v. Keegan, 426 S.W.2d 701 (Mo.App.1968); and Kammeyer v. Concordia Telephone Company, 446 S.W.2d 486 (Mo.App.1969), lends support to the proposition that Rule 55.08 should be construed broadly to include extinguishment of a lease by foreclosure as an affirmative defense, but it is not necessary to reach or decide the question of affirmative defense. It is palpable upon the record that the theory upon which the ease was tried was one of construction of an ambiguous contract, and any question of extinguishment of the lease was waived because not asserted or presented as a theory of defense to the trial court.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Loretta HICKMAN, Appellant, v. GOETZE-NIEMER, a corporation, and Liberty Mutual Insurance Company, Respondents.
    No. KCD 29907.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.
    Application to Transfer Denied Dec. 18, 1978.
    Haskell Imes, Kansas City, for appellant.
    A. Warren Francis, Lloyd A. Hamrick, Jeffrey T. O’Connor, Kansas City, for respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by workmen’s compensation claimant from judgment which reversed Industrial Commission’s order of reinstatement of claim and remand for hearing of its merits. The dispositive question is whether the order of reinstatement and remand is a final and appealable judgment. Reversed.

Loretta Hickman filed a claim for compensation March 7, 1973, for injury within the course and scope of her employment with Goetze-Niemer December 18, 1972. The referee entered an order of dismissal May 13, 1975, which recited that prehearing conference was set for August 14, 1973, and that subsequent hearings were set for February 26, 1974, June 17, 1974, December 5, 1974, and May 5, 1975. Claimant received notice of the June 17, 1974, hearing; claimant discharged her attorney September 5, 1974.

Claimant filed a motion to reinstate December 10, 1976, and thé claim was set for hearing February 1, 1977. The employer and insurer opposed the motion to reinstate. Neither claimant nor her attorney appeared at the hearing, and the referee denied claimant’s motion for reinstatement February 8, 1977.

Claimant filed an identical motion for reinstatement March 4,1977. It was set for hearing April 7, 1977, and all parties appeared. The referee denied reinstatement April 26, 1977.

Claimant appealed the referee’s ruling to the Industrial Commission May 5, 1977. The Commission found, July 18, 1977, that notice of the hearing set for May 5, 1975, did not comply with Section 287.520, Revised Statutes of Missouri, and that claimant was not given notice of that hearing. The Commission accordingly set aside the referee’s order of dismissal of the claim and remanded it for hearing on its merits.

The employer and insurer appealed the Commission’s order of reversal and remand to the circuit court. The court found the claim “stale for want of prosecution,” and on that ground reversed the Commission’s remand, reinstated the referee’s order of dismissal, and dismissed the claim.

Appellant contends the court’s judgment was an abuse of discretion and in excess of the scope of review of decisions of the Industrial Commission as envisioned by Missouri Constitution, Article V, Section 22, and Section 287.490, Revised Statutes of Missouri. Respondent argues in support of the trial court’s findings on claimant’s lack of diligence in prosecution of her claim.

Missouri Constitution, Article V, Section 22, authorizes the legislature to provide for review of the administrative acts in question. Section 287.490, Revised Statutes of Missouri, provides for judicial review of a “final award” of the Industrial Commission and limits the court’s authority to set aside an award to four grounds and “no other.” Failure of a claimant to prosecute with diligence does not fall within the grounds so specified.

The order subjected to review by the court in this case neither grants nor rejects the claim. It simply remands the claim for a hearing on its merits. Accordingly, it is devoid of finality and was not reviewable by the circuit court. State v. Eversole, 332 S.W.2d 879 (Mo. banc 1960).

Judgment reversed with directions to remand to the Industrial Commission for furtherance of its order of reinstatement and remand of claim for hearing on its merits. (Respondents' motion to dismiss appeal, “taken with the ease,” is overruled.)

All concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lindol CURTIS, Defendant-Appellant.
    No. 39712.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 10, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Gary L. Robbins, Public Defender, Jackson, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Hal E. Hunter, Jr., Pros. Atty., New Madrid, for plaintiff-respondent.
   CRIST, Judge.

This is an appeal from a conviction on two counts for murder in the first degree. Defendant was found guilty and sentenced to life imprisonment on each of the two counts, to be served consecutively. Defendant had entered a plea of not guilty by reason of insanity.

Defendant complains about (1) the admission of two photographs which were alleged to be inflammatory and (2) permitting an expert to testify as to the mental competency of the defendant when said opinion was alleged to be based upon the report and opinion of another expert. We disagree.

On May 7,1974, Mary Louise Curtis lived in a five room house near Portageville, New Madrid County, Missouri. She was a former wife of defendant. They were divorced in 1973. Living in the house with Mary Curtis were Susan Gwaltney, her mother, and her children by a previous marriage, Brenda Underwood, Elmer Underwood, Elaine Underwood and Louis Underwood. Defendant and Mary Curtis had no children of their own.

In the afternoon of May 7, 1974, defendant was in the vicinity of the house occupied by Mary Curtis, her mother and her children by a former marriage. Defendant had car trouble and was stopped near the Baderville Bridge, about one mile from the house. About 4:30 p. m., Mary Curtis, Susan Gwaltney, Brenda Underwood and Elaine Underwood were in a car taking Brenda to Risco, Missouri. The occupants of this car observed defendant beside his car which was apparently torn up.

Mary Curtis talked to defendant and gave him food at that time. There seemed to be no problem. At about six or seven o’clock, Elmer Underwood observed defendant sitting in his car much closer to the house.

At about 10:30 p.m. on that date, Brenda Underwood returned to her home accompanied by Mark Squires and noticed defendant’s car close to the driveway. Mary Curtis asked Mark Squires to take defendant to Portageville and he agreed to do so.

Brenda Underwood went into the house and noticed that the defendant was there. A problem arose whether or not Mark Squires would take defendant to Portage-ville and Mark left without him. As Brenda Underwood was preparing to go to bed, she heard her mother and defendant talking in the living room. Defendant called Brenda Underwood, Susan Gwaltney, and Mary Curtis to the living room and Mrs. Gwalt-ney sat in a chair with Mary Curtis, on the arm of the chair, while Brenda sat in a recliner close by. Defendant had some clothing in his hands and he dropped them to reveal a gun in his hand.

At that time, Brenda observed defendant shoot Mary Curtis and saw Susan Gwaltney jump up and run toward the kitchen. She heard more shots as she was running from the house. In her effort to leave the house, Brenda initially went into the bedroom where her sister and brother slept, turned around, ran through the living room and jumped over the bodies of Mary Curtis and Susan Gwaltney which were lying on the floor. Brenda Underwood went to a neighbor’s house to report what had happened.

Earlier in the evening, Elaine and Elmer Underwood had gone to bed. At about 10:30 p.m. Elmer was awakened by gunshots. He opened the door of his bedroom, looked out, and observed Mary Curtis, Susan Gwaltney, Brenda Underwood and defendant in the living room. Defendant told Elmer to go back to bed. Elmer went back to bed as told and was once again awakened by gunshots. He opened the same door to the living room and saw his mother lying on the floor, screaming.

Within the same time, Elaine Underwood was awakened by noises, opened the front bedroom door and saw defendant shoot her mother. As she looked into the living room, she observed defendant shoot her mother and saw her grandmother, Susan Gwaltney, lying on the floor. Authorities were summoned to the house and Mary Curtis was found to have been shot seven times and Susan Gwaltney had been shot three times.

Sergeant Duckworth of the Missouri State Highway Patrol took pictures of the bodies (Exhibits A & B complained about) and conducted an investigation at the scene. Later that evening, defendant was found sitting in his car in a barn approximately four miles from the house. He was unconscious and vomiting. Pills and an apparent suicide note were found in the car with him. Also in the car was a nine millimeter Walther pistol.

Defendant’s lawyer, in his opening statement, stated that defendant did in fact shoot and kill Mary Curtis and Mrs. Gwalt-ney. Further, that his defense was based upon insanity, that is, he was suffering from mental defect so that he didn’t know what he was doing.

Defendant complains about the introduction of State’s Exhibits A and B. Both pictures are black and white exposures, one showing the deceased, Mary Curtis, lying on the floor in front of a chair with apparent bullet wounds and the second showing the deceased, Susan Gwaltney, lying on the floor in between two rooms. The pictures are before this court and there is nothing more inflammatory about these exhibits than there would be in almost any photograph of murder victims.

Photographs are admissible if they “throw any relevant light upon a material matter at issue.” State v. Moore, 303 S.W.2d 60, 65 (Mo.banc 1957). The state still had to prove its case, for the reason that defendant entered a plea of not guilty by reason of insanity. His testimony was that while he was sure that he had killed the victims, he could not remember doing it. Manslaughter instructions were given. The photographs were relevant to show the nature and location of the victims’ injuries and to show cause of death. Additionally, trial courts have wide discretion in determining the admissibility of photographs. State v. Jackson, 499 S.W.2d 467 (Mo.1973). We rule this point against the defendant.

Defendant’s complaint about Dr. Tuttle testifying as to the competency of the defendant, when his opinion was allegedly based upon the report of another doctor, was not contained in his Motion for New Trial. Accordingly, nothing is preserved for review. State v. Flynn, 541 S.W.2d 344 (Mo.App.1976).

Furthermore, from our review of the record we find no plain error affecting substantial rights of defendant that could reasonably be deemed such that manifest injustice or miscarriage of justice has resulted from the testimony of Dr. Tuttle. Rule 27.20(c). While Dr. Tuttle testified that he had considered Dr. Arat’s report, and that it may have influenced his opinion, he stated unequivocally that his opinion was based upon his own examination of the defendant. The question here is really one pertaining to the weight of the evidence. It is well established that the admission or exclusion of expert testimony is a matter largely within the discretion of the trial court, and the exercise of that discretion will not be interfered with unless it firmly appears that defendant’s rights have been abused. Edwards v. Rudowicz, 368 S.W.2d 503 (Mo.App.1963). We rule this point against the defendant.

Judgment affirmed.

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


author: CLEMENS, Judge.

text:
    Jack CLEMMONS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39783.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 17, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Dec. 18, 1978.
    Gary L. Robbins, Public Defender, Jackson, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, James E. Meghee, Pros. Atty., Bloomfield, for respondent.
   CLEMENS, Judge.

Defendant, after having pled guilty to and been sentenced for sale of a controlled substance, filed a Rule 27.26 motion. The trial court denied the motion without an evidentiary hearing, holding it failed to state a claim warranting relief. Defendant appeals, contending his allegations were sufficient to entitle him to an evidentiary hearing.

Defendant argues he was induced to plead guilty by trial counsel’s promise of probation. His factual allegations were that before pleading guilty counsel told him: “You’ve already got probation over there (Scott County), and the only way to get it [probation] over here is by pleading guilty. . . .You just can’t try a drug charge here in this county because the jury would find you guilty just as soon as they read of the charge. And if you go to trial you’ll just get a lot of time, and no probation.”

Denial of the motion was proper on two grounds: First our examination of the extensive guilty plea proceedings shows defendant made written statements and also oral statements under oath which refute his factual allegations. This alone warrants denial of the motion. Smith v. State, 513 S.W.2d 407[1] (Mo.banc 1974).

Further, we look again to defendant’s quoted factual allegations. He relies on statements about the possibility of probation and the probability of a guilty verdict imposing “a lot of time.” In Stewart v. State, 542 S.W.2d 544[1, 2] (Mo.App.1976), we cited Smith, supra, in holding “It was the duty of movant’s lawyer to inform mov-ant of the possible range of punishment and, if considered advisable, to give his ‘judgment as to the extent of punishment the jury might fix in the event of conviction.’ ”

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: STEWART, Presiding Judge. REINHARD, Judge,

text:
    Mary E. SHAFFER, Administratrix of the Estate of Flora R. Cochenour, Deceased, Plaintiff-Respondent, v. Gayle Lee HINES, Defendant-Appellant.
    No. 39146.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 17, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      J. Patrick Wheeler, Canton, for defendant-appellant.
    J. William Holliday, Kahoka, for plaintiff-respondent.
   STEWART, Presiding Judge.

Action at law for damages for breach of contract to purchase land at a court ordered auction. Defendant, the high bidder, appeals from judgment in favor of plaintiff in the sum of $13,735.00 and interest at the rate of 6% per annum from date of sale. We reverse.

Plaintiff, the administratrix of the estate of Flora Cochenour, held a public auction for the sale of certain land in the estate pursuant to an order of the Probate Court of Scotland County. Defendant was the highest bidder at $23,000.00 and the property was “knocked off” to him at that price. Defendant drew a check payable to “Flora R. Cochenour Estate” in the sum of $2,300.00 which was given to the attorney for plaintiff. The attorney gave defendant a memorandum of sale which he and his wife were to sign. Defendant’s wife was not present at the auction. Defendant stopped payment on the check and neither he nor his wife signed the memorandum of sale. Defendant refused to proceed with the purchase of the land.

At the auction the second highest bid was $22,087.50. The property was sold at a second auction for $9,765.00. The difference between defendant’s bid and the ultimate sale was $13,235.00.

The primary issue on appeal is whether the Statute of Frauds, § 432.010 bars this action. That portion of the statute relevant to our consideration reads as follows:

“No action shall be brought ... to charge any person . . . upon any contract made for the sale of lands . unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith . . .

The parties recognize that the Statute of Frauds applies to auction sales whether or not the sale is conducted pursuant to judicial order. Wilcher v. McGuire, 537 S.W.2d 844, 847 (Mo.App.1976); Dunham v. Hartman, 153 Mo. 625, 55 S.W. 233 (1900). It is also conceded that the check is not a sufficient memorandum so as to comply with the statute. Byers v. Zuspan, 264 S.W.2d 944 (Mo.App.1954).

The language of the statute is explicit. When the statute is applicable an oral contract for the conveyance of real property cannot be enforced. The party against whom the contract is sought to be enforced may admit the oral contract and still interpose the defense of the Statute of Frauds. Jones v. Linder, 247 S.W.2d 817, 820 (Mo.1952).

Plaintiff contends that defendant waived the defense of the Statute of Frauds because it was not interposed until the trial had begun. The court within its discretion permitted the defendant to amend his answer to include this defense under Rule 55.33. The amendment relates back to the date of the original pleading. Rule 55.33(c). Defendant did not waive the defense of the Statute of Frauds.

Plaintiff seeks to avoid the effect of the Statute of Frauds on the grounds that defendant “is estopped from asserting the Statute of Frauds based upon part performance and change of position of the parties.”

It is evident that the plaintiff seeks to invoke the doctrine of estoppel in pais. Estoppel in pais is that condition that in justice precludes one from speaking the truth in his own behalf. This doctrine is often referred to as a shield against fraud. It is not, however, available for use as a sword. It cannot be used to create a cause of action, if the action did not otherwise exist. Its purpose is not to bring about a gain but to protect from loss. It is used to restore the parties to the same relative positions they would have occupied if the basis for the estoppel had not existed. Emery v. Brown Shoe Co., 287 S.W.2d 761 (Mo.1956).

The most penetrating discussion of the doctrine is to be found in Jones v. Linder, 247 S.W.2d 817, 819-820 (Mo.1952). The court there concludes the rule to be that “equity will intervene [by way of equitable estoppel] to prevent a gross injustice or deep-seated wrong to one of the contracting parties . . . .”

Further defining the doctrine the court stated that:

“This gross injustice or ‘virtual fraud’ referred to is of necessity something more than the failure of one to live up to his oral agreement. It may be morally reprehensible and wrong for one to refuse to do what he said he would do. So, in one sense, there is always some injustice resulting from a violation of a moral obligation, especially when such results in loss to one of the parties of the benefits of his oral bargain. But even where an oral contract is admitted, a party to it may nevertheless assert the statute of frauds as a complete bar to enforcement, and may effectively repudiate any obligation under it . .”

The evidence in the case before us warrants a finding that defendant violated a moral obligation to consummate an oral agreement. There is no evidence from which it can be said that defendant did not intend to purchase the property at the time he bid on the property. When defendant repudiated his announced intention to purchase the property plaintiff was restored to the same position she had been in before the auction.

We also note, as did the court in Linder at p. 825 that defendant received no benefit as a consequence of the oral agreement, an important consideration in cases of equitable estoppel.

In the final analysis what plaintiff lost was the benefit of the bargain, and as so aptly stated in Jones v. Linder, supra l.c. 826:

“. . .to permit recovery of damages for loss of the benefits of a bargain, or damages computed by expenditures made in reliance on the oral contract where defendant was not benefited by those expenditures, would be to permit a recovery in an action prohibited by the statute of frauds, i. e., an action to ‘ * * * charge any person * * * upon any contract made for the sale of lands, * * unless the agreement * * * be in writing * * V RSMo. 1949 § 432.010, V.A.M.S.”

Plaintiff cites Pointer v. Ward, 429 S.W.2d 269 (Mo.1968) which relies upon Jones v. Linder, and supports the conclusion we have reached.

It is the legislature and not defendant that has made the contract in this case unenforceable. We find no basis to remove this case from the operation of the Statute of Frauds.

The judgment is reversed.

REINHARD and STEPHAN, JJ., concur.

REINHARD, Judge,

concurring.

I concur in the opinion of the majority but I feel constrained to express my view further on the subject.

I concede that based on the decision of the Missouri Supreme Court in Dunham v. Hartman, 153 Mo. 625, 55 S.W. 233 (1900), a judicial auction of real estate is within the Statute of Frauds. However, I cannot agree with the logic of that principle.

The generally recited purpose of the Statute of Frauds is to prevent fraud upon the buyer. That rationale does not exist in a court-ordered public auction of real estate. In such a case, the terms and conditions of the sale are part of the order and the applicable statutes require publication of both the description of the land and the terms of the sale. Bids are taken publicly and the acceptance thereof is made subject to the approval of the court.

To permit a purchaser to avoid any obligation by the mere rejection of the contract imposes a great hardship and considerable expense upon the seller. In a non-judicial sale the seller is permitted to immediately attempt to sell again. That simple procedure is not permitted under a judicial sale. The statutes require the executor, administrator, or sheriff to seek further orders of the court, requiring additional publications and expiration of a statutory period of time before the property can be resold. The mechanics of having a memorandum signed before the dispersal of the crowd at a public auction is impractical if not impossible. A reading of 72 Am.Jur.2d, Statute of Frauds, §§ 115, 658 and 37 C.J.S. Frauds, Statute of § 137 indicates that the modern view held and adopted by a majority of the courts is that no memorandum of writing is required at a judicial auction.

      . “Equitable estoppel is available in an action at law and will be applied in courts of law as well as those in equity.” Brooks v. Cooksey, 427 S.W.2d 498, 503 (Mo.1968).


text:
    Claude N. STRAUSER and Bradford M. Strauser, Plaintiffs-Appellants, v. The ESTATE of Alice B. STRAUSER, Deceased, Defendant-Respondent.
    No. 39633.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 17, 1978.

      Thomas J. Briegel, Union, for plaintiffs-appellants.
    John W. Waller, Sullivan, Albert M. Schlueter, Clayton, for defendant-respondent.
   CRIST, Judge.

Quantum meruit action. Plaintiffs, Claude and Bradford Strauser, filed suit against their grandmother’s estate to recover the reasonable value of services they rendered on her farms.

Following the presentation of plaintiffs’ evidence, the Circuit Court of Franklin County directed a verdict for the estate on the ground that neither plaintiff had produced sufficient evidence to support a verdict. We affirm.

Plaintiffs’ contention on appeal is that they were not required to establish the precise amount of compensation to which they were entitled because the value of farm labor is considered to be within the common knowledge of jurors. The estate cites the lack of evidence as to the nature of the alleged services and the time spent in performing them.

To sustain a claim in quantum me-ruit for the value of services rendered, the claimant must show proof of the reasonable value of the services. Gavie v. Missouri Research Laboratories, Inc., 416 S.W.2d 6, 8 (Mo.App.1967). This is usually accomplished through the introduction of opinion evidence as to the value of the work performed. The showing of reasonable value is not necessary, however, when the value of a particular kind of service is a matter within the common knowledge of the jury. Allmon v. Allmon, 314 S.W.2d 457, 462-463 (Mo.App.1958); Tuttle v. Brayton, 215 S.W.2d 46, 49 (Mo.App.1948).

Under these principles and prior case law plaintiffs are correct in asserting that the value of general farm services “is considered to be within the common knowledge of the Court and jury.” In re Estate of Kunzler, 548 S.W.2d 212, 215 (Mo.App.1977); Griffith v. Estate of Winebarger, 471 S.W.2d 941, 943 (Mo.App.1971).

The jury cannot, however, apply its common knowledge of the value of services unless it has an understanding of the nature and extent of the services performed. Tuttle, supra, 215 S.W.2d at 49; See Hart v. Wood, 392 S.W.2d 20, 23 (Mo.App.1965). Plaintiffs offered few specifics as to the nature and extent of the work they performed on the farms.

There was evidence that Claude began work as a 9 year old boy in 1955 and worked from time to time until he was 24 years old, in 1970. Bradford also began when he was 9 in 1957, and worked from time to time until he was 22 in 1970. Most of the work was performed on weekends and during the summers, although some summers they held other jobs. They engaged in crop work, gardening, tending animals and repair of fences, roads, machinery and buildings. It was never made clear how large the working areas of the farms were at any given time, how many animals were cared for, and especially significant, in view of the fact they held other jobs and that farming is somewhat seasonal in nature, the approximate amount of time they worked.

The law does not require mathematical precision of the “extent and nature” of work alleged in quantum meruit — indeed this would be a great burden on many deserving claimants — but some basic indication is needed, especially on details that can be easily established. The evidence in this case is insufficient to constitute a submissi-ble case because the jury would be left to conjecture on just what was done, when and by whom. The jury would not know what farm work to value even if it were aware of the general value of farm services.

The judgment is affirmed.

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


text:
    Bobbie Jean ROGERS, Appellant-Petitioner, v. Thomas Phillip ROGERS, Appellee-Respondent.
    No. 40128.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 17, 1978.
    Thomas J. Briegel, Union, for appellant-petitioner.

      Jenny, Cole & Eckelkamp, William W. Eckelkamp, Union, for appellee-respondent.
   CRIST, Judge.

The marriage of Bobbie Jean Rogers and Thomas Phillip Rogers was dissolved after almost twenty-two years of marriage. Two children were born of the marriage. Tina was emancipated, and Thomas was sixteen years of age at the time of the order dissolving the marriage. Husband was granted custody of Thomas.

Wife complains about that portion of the judgment disposing of the property. Wife received a 1968 Rambler and a 1961 Buick. Title to the Buick had been transferred to Tina. Wife was held harmless on mortgages on a 1976 Chevrolet truck and a mobile home. Husband received all other property-

Wife specifically complains about the trial court ordering that the twenty-eight acre farm was the property of the husband and that the cattle on this farm was the property of their son, Thomas.

The property owned by either or both of the parties at the time of the dissolution was twenty-eight acres of land, a mobile home located on said tract of land with a mortgage of approximately $10,000 against it, a 1976 Chevrolet truck with a mortgage against it in an unknown amount, tractors, tools, guns, furniture, 1968 Rambler and a 1961 Buick. It is disputed as to whether the cattle on the farm belong to their son.

The real estate was acquired by the parties after their marriage in a tenancy by the entirety. They were having marital problems in 1972. Wife left; she took all of the money from a joint checking account, about $3,500, and did not account to husband for such money. Husband and wife agreed to a reconciliation on condition that wife deed him the twenty-eight acre farm. The parties then transferred the title to the real estate to the husband. Did the twenty-eight acre farm cease to be marital property by reason of such agreement and transfer to the husband?

Section 452.330-2(4) RSMo Supp.1973, provides:

“2. For purposes of sections 452.300 to 452.415 only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
(4) Property excluded by valid agreement of the parties; . . . ”

We believe that before any property can be excluded from the term “marital property” by valid agreement of the parties the evidence must clearly and unequivocally show an agreement whereby both parties intend that the property be excluded from their marital property. We are unable to determine from the record whether or not the twenty-eight acre farm is marital property, and if so, the value thereof.

There is a little or no evidence as to the values of any of the properties of the parties. It is noted that husband was earning in excess of $7.00 per hour and was receiving a monthly pension of approximately $100.00 monthly, in addition to his farm income, while wife was earning approximately $3,700.00 per year.

With reference to the cattle, we are unable to determine whether or not there was a completed gift to the son insofar as wife was concerned. See Coffey v. Coffey, 485 S.W.2d 167, 170-171 (Mo.App.1972).

On the record before us we are unable to render a fair judgment. Therefore, we must remand for a full determination of all issues relating to the division of property in accordance with this opinion, the factors enumerated in § 452.330 RSMo Supp.1973, and other relevant factors. V. M. v. L. M., 526 S.W.2d 947 (Mo.App.1975).

Accordingly, we reverse and remand this case for a determination of all issues relating to the division of property. The judgment is affirmed in all other respects.

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