author: SMITH, Judge.

text:
    In the Matter of ADOPTION OF E. N. et al., Appellants, v. E. M. N., Respondent. H. N., Appellant, v. E. M. (N) W., Respondent.
    Nos. 38452, 38453.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

      Hyder & McHenry, Robert L. Hyder, Jefferson City, for appellant.
    L. H. Wilbers, Jefferson City, for respondent.
   SMITH, Judge.

This opinion will deal with two separate appeals consolidated for argument. The first is the appeal of the natural father and stepmother from the judgment of the trial court denying their petition to adopt the seven children of the father and respondent-mother. The second is an appeal by the natural father from the order of the trial court modifying the original divorce decree to provide specific visitation rights to the mother. We affirm both judgments.

THE ADOPTION

The parties were before us once before in In the matter of E.C.N. et al., 517 S.W.2d 709 (Mo.App.1974). In that proceeding we reversed outright the judgment the trial court allowing the adoption of the same seven children on the basis that the evidence did not establish consent by the natural mother, nor willful neglect nor willful abandonment so as to give the court jurisdiction to grant the adoptions. That decision was handed down December 23, 1974. The present petition was filed on March 17, 1975, alleging, in lieu of maternal consent, willful neglect and willful abandonment. The statute provides that these defalcations must have occurred during the year prior to the filing of the petition for the court to have jurisdiction. Sec. 453.040 R.S.Mo.1969. We are therefore concerned only with the period from March 17, 1974 to March 17, 1975.

Plaintiffs seek to have us consider the mother’s conduct during the marriage and up until the filing of the first petition on the basis that she perjured herself in the first trial and our prior judgment should not be considered as res judicata because perjury “influenced” this court. First, this is not the proper proceeding in which to collaterally attack the prior judgment. Secondly, the record does not warrant a conclusion that defendant lied, only that she used a slang term in testifying, upon which she puts a different meaning than does plaintiffs’ present counsel. Finally, the alleged perjury related only to her reasons for leaving her husband for another man, and had nothing to do with our decision on the question of abandonment and neglect charged to have occurred thereafter. Counsel for plaintiffs is free, of course, to form whatever opinions he may choose as to what “influenced” the court. Such opinions do not, however, change the legal basis of the court’s decision, which in no way turned on the testimony discussed.

Inasmuch as this was a court-tried case, our review is that prescribed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We find substantial evidence to support the judgment of the lower court. Throughout the one year period relied upon, defendant, living in Alaska, attempted to maintain contact with her children through letters, telephone calls, and contacts by her relatives. The letters and telephone calls were refused by the children, purportedly without instigation by the plaintiffs. The visiting by the maternal grandparents was terminated by the stepmother. Defendant’s requests to visit the children were rejected by the father. It must also be remembered that for all but three months of the statutory period there was a judgment of adoption pending on appeal, and defendant cannot be criticized for not aggressively pressing for her rights to visit during that period. We agree with the trial court that the evidence fails to support a finding of willful neglect or abandonment. At most, it reveals an inability to maintain communications because of the actions of plaintiffs and the children.

The judgment denying the petition for adoption is affirmed.

VISITATION

The original divorce decree between the mother and father was silent on the question of visitation. It vested custody of the seven children of the marriage in the father. Under the law applicable at the time of the decree the award of custody to the father did not deprive the mother of access to the children in the absence of an express provision to that effect. Middleton v. Tozer, 259 S.W.2d 80 (Mo.App.1953) [2-5], Pursuant to Sec. 452.415 R.S.Mo.1969 the law governing modification of a divorce decree rendered prior to January 1, 1974, is Sec. 452.400 R.S.Mo.1969. That section provides that a parent not granted custody of the child is entitled to visitation unless the court finds such “visitation would endanger the child’s physical health or impair his emotional development.” Modification of visitation rights may be granted when in the best interests of the child. It is not necessary, therefore, that the mother here establish any change of circumstances since the original divorce decree. To the extent the original decree was silent on visitation, it is subject to clarification (not really modification) to spell out visitation rights. Under the current law the court should grant the mother’s request for visitation unless it finds damages to the child’s physical health or emotional development.

The trial court here made specific findings that no such dangers exist. That finding is fully supported by the evidence. The visitation provisions are reasonable.

Order decreeing visitation rights is affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


source: Caselaw Access Project

author: RENDLEN, Special Judge.

license: Public Domain

text:
    Charlene Sue FAULKNER, Appellant, v. James Robert FAULKNER, Respondent.
    No. 36772.
    Missouri Court of Appeals, St. Louis District.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

      Gordon F. Webb, Clayton, for appellant-petitioner.
    Francis X. Duda, St. Louis, for respondent.
   RENDLEN, Special Judge.

Charlene Sue Faulkner appeals those portions of her marriage dissolution decree relating to division of marital property and the awards of maintenance and child support. Neither party challenges the finding of the trial court that the marriage was irretrievably broken or the order dissolving the marriage.

By its decree the trial court ordered that respondent pay appellant $700.00 per month maintenance and pay to Beverly Faulkner, a child of the marriage, blind from birth and now more than twenty-one years of age, $300.00 per month for her support. The court further ordered that respondent transfer a policy of insurance on his life to appellant with the child, Beverly Faulkner designated beneficiary, the marital property was divided and each party ordered to pay one-half of the parties’ tax liability for that year.

Appellant contends: (1) the decretal provision requiring appellant to pay one-half of the parties' joint or individual 1974 income tax liability was unenforceably vague, (2) that the awards of maintenance and support were inadequate and (3) that respondent was awarded an excessive share of the marital property.

We consider first appellant’s contention that the provision of the decree ordering that “Petitioner and Respondent shall each pay one-half of all tax liability on their joint or individual tax returns for calendar year 1974” is unenforceably vague, thus void and of no effect. The decree was entered in late December, 1974, when neither of the parties’ taxable income nor their tax liability for the year was ascertainable. Generally a decree ordering payment of money must specify with definiteness and certainty the amount to be paid so the order may be enforced at law. Allison v. Allison, 540 S.W.2d 635 (Mo.App.1976); Loomstein v. Mercantile Trust National Association, 507 S.W.2d 669 (Mo.App.1974); Taylor v. Taylor, 367 S.W.2d 58 (Mo.App.1963).

In Taylor, the trial court ordered the husband to pay alimony in the amount of twenty-five percent of his net income for each subsequent year. This court, on appeal, stressing the fact that the amount due required external proof, held the provision of the decree was unenforceably vague. Similarly, in Loomstein, the trial court had ordered the husband to pay all sums necessary for his daughter’s college and graduate school tuition, books, room and board. Affirming the trial court’s order quashing execution and garnishment, we held that the provision of the decree was so indefinite as to be unenforceable by execution. Other decisions applying the rule and rationale of Taylor when considering comparable indefinite orders as to payments of money in divorce decrees include Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W.2d 876 (1942); Rodden v. Rodden, 527 S.W.2d 41 (Mo.App.1975) and Cradic v. Cradic, 544 S.W.2d 605 (Mo.App.1976). These cases stress that the amounts allegedly due in such defective judgments require external proof and cannot be enforced by the regular process of the courts. In the case at bar the provision of the decree ordering appellant to pay one-half of the parties’ joint or individual tax liability was indefinite as to amount and could not be ascertained at the time the decree was entered. That provision of the decree was thus incapable of enforcement at law and is held void.

Turning now to the support allowed for Beverly Faulkner, the adult-handicapped daughter, the court was without jurisdiction to determine that issue as the claim for support is that of the daughter, not appellant, Block v. Lieberman, 506 S.W.2d 485 (Mo.App.1974), and absent service of process or consent of the daughter the court had no jurisdiction over the person of Beverly Faulkner. Germanese v. Champlin, 540 S.W.2d 109 (Mo.App.1976). Not being bound by the judgment in the parents’ dissolution proceeding, she may proceed in her own right to establish the parents’ obligation for her support. Lieberman v. Lieberman, 517 S.W.2d 478 (Mo.App.1974). At trial, counsel for the parties made a somewhat equivocal attempt to establish jurisdiction of the court as to the issue of support for the adult child by stipulation. However, the parties by agreement cannot confer jurisdiction on the court over the person of a non-party where it does not otherwise exist. The order awarding child support is void. In so ruling we do not pass on the question whether vel non such action with proper parties may be joined under appropriate procedure as a separate claim in a dissolution proceeding. However, as indicated above, an adult unmarried, un-emancipated and insolvent and physically or mentally handicapped child may bring a separate action to determine the parental duty for support.

We have examined the other issues presented on appeal challenging the adequacy of the award of maintenance and the award of marital property to the appellant-wife, or as stated in appellant’s brief, the “excessive” award of marital property to respondent-husband, and find no basis for reversal of the court’s decree in these matters. In our review of the record, argument, briefs and law, we have considered all relevant factors, including the criteria for maintenance awards set forth in § 452.-335, RSMo Supp. 1973, effective January 1, 1974, and those pertinent to division of marital property under § 452.330, RSMo Supp. 1973. While so doing we were mindful that by this opinion the requirement that appellant shall pay “one-half of all tax liabilities on their joint or individual tax returns for the calendar year 1974" is declared void.

Finding no reversible error as to these issues, it is unnecessary to burden the opinion with a detailed discussion of the facts that would have no precedential value.

We reverse and remand the judgment of the trial court and direct that judgment be entered as in the original decree, excepting however and deleting therefrom the provision for $300.00 monthly child support to Beverly Faulkner and the provision requiring the parties to each pay one-half of their tax liabilities for the calendar year 1974.

McMILLIAN, P. J., and STEWART, J., concur.


author: KELLY, Judge.

text:
    Maralyn MILNER, Plaintiff-Appellant, v. TEXAS DISCOUNT GAS CO., Defendant-Respondent.
    No. 37926.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

      Ben J. Weinberger, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Sam Rynearson, St. Louis, for defendant-respondent.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County in favor of the defendant-respondent following a jury trial in a negligence action in which the plaintiff-appellant sought money damages for injuries sustained when she fell on the premises whereon the defendant-respondent operated a service station business. We affirm.

At trial the appellant presented all of the evidence on the issue of liability in plaintiff’s case, the respondent limiting its evidence to the testimony of its examining physician. Because of the result we reach, a brief statement of the facts will be sufficient.

Mrs. Maralyn Milner, the appellant, drove her motor vehicle onto the premises of a service station being operated by the respondent at 9800 Page Boulevard in St. Louis County at approximately 1 p. m. on the 10th day of October, 1972, for the purpose of purchasing some gasoline. Charles Johnson, the acting manager of the service station, came up to Mrs. Milner’s car and she told him to “fill it up.” Mr. Johnson put the nozzle of the hose from the gas pump into the gas tank of the auto, turned the gas pump on, set the nozzle on automatic, and went to the gas station island nearby to either get something to wash the windshield of Mrs. Milner’s car or to wait on another customer. Mrs. Milner was getting out of her car as Mr. Johnson was putting the nozzle of the gas hose into the gas tank of her car and after Mr. Johnson left, the nozzle came out of the gas tank of her car, flipped up into the air, and sprayed gasoline all over her and also sprayed the gasoline on the pavement where she was standing. In attempting to get out of the way, Mrs. Milner fell backwards and sustained injuries to her back for which she sought compensation in this case.

Following an adverse jury verdict, appellant filed “Plaintiff’s Motion to Set Aside The Verdict of the Jury in Favor of Defendant Rendered On The 10th Day of December, 1975, Or In The Alternative For A Directed Verdict In Favor of Plaintiff On The Issue of Liability And For A New Trial on the Issue Of Damages.”

On appeal the appellant relies on the following Points:

1) the trial court erred and abused its discretion in denying appellant’s motion for judgment in her favor on the issue of liability and for a new trial on the issue of damages because she made a submissi-ble case and sustained her burden of proof in accordance with her theory of recovery under her pleadings and supported by her evidence and there was no dispute as to the issue of liability and damages and that the active negligence of the respondent was established and conceded;
2) the trial court erred and abused its discretion when it overruled appellant’s motion to set aside the verdict of the jury and the judgment of the Court in favor of respondent because it was not responsive to the pleadings or fully consistent with the theory on which the case was tried by the parties and in utter disregard of the evidence and that there was no evidence in support thereof and so unreasonable as to shock the sense of justice;
3) the trial court erred and abused its discretion by refusing appellant’s verdict director marked “A,” a modified 22.03 which set forth and contained all the necessary ultimate issues of the case in support of the peculiar facts and circumstances of the ease and predicated upon her theory of recovery under her pleadings supported by her evidence, which were necessary to direct a proper verdict for appellant;
4) the trial court erred and abused its discretion because it gave its own erroneous instruction Number Three, a modified MAI 17.01, which was vague, uncertain, indefinite, misleading, and not applicable to the peculiar facts and circumstances in the ease as a whole and failed to include other essential and necessary elements and ultimate facts in the case for a proper verdict for appellant, the same being as follows: The failure of the attendant in charge of the service station to either cut off the flow of gasoline when the nozzle valve fell out of the gasoline tank so that the nozzle valve failed to function properly to automatically shut itself off at said time, which directly made the premises of respondent not reasonably safe for appellant which caused plaintiff’s damages.

Our examination of the transcript on appeal demonstrates that the appellant failed to preserve her first point for review by this court. Motions for Directed Verdict are authorized by Rule 72.01(a) and are required to be made “at the close of the evidence offered by an opponent.” There is no motion for a directed verdict at the close of the defendant’s evidence by appellant in the record of this case, and she is therefore in no position to make any claim that the trial court erred or abused its discretion in denying her motion for judgment in her favor on the issue of liability. Edens v. Myers, 365 S.W.2d 559, 561[2] (Mo.1963). Having failed to file her motion for directed verdict at the close of the evidence, appellant likewise failed to preserve anything for review on appeal with respect to her after-verdict Motion for Judgment Notwithstanding the Verdict authorized by Rule 72.01(b) because it is only in those cases where a motion for directed verdict was made at the close of all of the evidence and the trial court has denied the Motion for Directed Verdict that this Motion for Judgment Notwithstanding the Verdict lies. We rule this Point against the appellant.

Appellant’s second Point Relied On likewise fails to preserve anything for review for the reason that it fails to meet the requirements of Rule 84.04(d) in that it constitutes nothing more than an abstract statement without specifying in what way the jury verdict was “not responsive to the pleadings or consistent with the theory on which the case was tried . . . and in utter disregard of the evidence and that there was no evidence in support thereof and so unreasonable as to shock the sense of justice.” We likewise rule this Point against appellant.

Appellant’s third and fourth Points Relied On are directed against the trial court’s (1) refusal to read to the jury a verdict-director instruction on the issue of liability tendered by the appellant, and (2) its reading, in lieu thereof, a verdict-director instruction not tendered by appellant which misdirected the jury because it did not present appellant’s theory of the ease.

Respondent contends, and we agree, that appellant has failed to preserve these Points for review. Appellant’s after-trial Motion sought no new trial on the issue of liability; it prayed only that the jury verdict be set aside or, in the alternative, that the trial court enter a directed verdict for her on the issue of liability and a new trial on the issue of damages only.

Our Rules of Civil Procedure contain no authorization for a “motion to set aside the verdict of the Jury.” The only after-trial motions following a jury trial specifically authorized by the Rules of Civil Procedure are a Motion for New Trial, Rule 78.07, and a Motion for Judgment Notwithstanding the Verdict, Rule 72.01(b).

We rule these Points against appellant.

Affirmed.

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

      . Rule 78.05 makes reference to “any after-trial motion” but the only after-trial motions authorized by the Supreme Court Rules are those mentioned supra. At common law there were five motions employed after verdict as methods of suspending or preventing judgment on the verdict. These were: (1) motion for new trial, (2) motion to arrest judgment, (3) motion for judgment non obstante veredicto, (4) motion to award a repleader, and (5) motion to award a venire facias de novo. Motions in arrest of judgment and for judgment non obstante vere-dicto went only to defects in the record proper and had to be determined from the record itself and not by the evidence. A motion to award a repleader was employed where there was a defect in the pleadings and granting of the motion amounted to the granting of a new trial with leave to amend the pleadings. A motion to award a venire facias de novo was an ancient proceeding at common law in use prior to the practice of granting new trials and was granted only for some cause appearing on the record. Motions for judgment notwithstanding the verdict and in arrest of judgment were abolished in Missouri by former Rule 81.01; however, the motion for judgment notwithstanding the verdict was reinstated by repeal of Rule 81 by Order of the Supreme Court dated June 1, 1971, effective January 1, 1972. See Historical Note, following Rule 72.01 V.A.M.R. The Rule in its present form was adopted by Order of the Supreme Court of April 10, 1974, and took effect on January 1, 1975. Motions to award a repleader and to award a venire facias de novo are obsolete today. Hyde, Motions añer verdict to suspend or prevent final judgment, 6 Kansas City L.Rev. 163, (April, 1938).


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. John PAYTON, Appellant.
    No. 38807.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

      Harlan & Harlan, John L. Harlan, Jr., Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Joseph R. Aubuchon, Asst. Pros. Atty., Franklin County, Union, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, John Payton, was charged with burglary, second degree, and stealing in connection with said burglary, and was found guilty by a jury of both offenses. The jury assessed his punishment at imprisonment for two years for each offense, and the court directed the sentences to be served consecutively.

Appellant asserts that the trial court erred in denying his motion for judgment of acquittal because “the only evidence that [he] committed the burglary charged was the uncorroborated hearsay testimony” of an accomplice, and therefore it was insufficient to support a conviction of burglary.

The cabin of Arthur Lentz was broken into and burglarized. The burglary was discovered by Deputy Sheriff James Terry when he noticed the front gate was unlocked and open, and that the window of the door had been broken. Later that day, Deputy Sheriff Zelch responded to a report of the burglary. He saw and followed an automobile, which belonged to David Moss, to a residence in Sullivan, Missouri where David and appellant alighted from the automobile and entered the house. The deputy later saw appellant and David return to the automobile, remove some containers from the trunk, and then conceal the containers between some propane tanks. The two drove away, and Deputy Zelch seized the property which they had concealed. It was identified by Mr. Lentz as property taken from his cabin.

David Moss testified for the State. He stated that appellant came to his apartment and asked him to go riding with him. Following appellant’s instructions, David drove on Acid Mine Road and stopped in front of the Lentz cabin. The two of them then got out, picked up two containers which contained property previously taken from the cabin, and placed them in the trunk of the automobile. David asked if “there was anything in the house that was left” and appellant replied, “We will go look.” The two entered the house, looked around, and then left. As they drove away, David asked appellant if “anyone had been there [the Lentz cabin] before,” and he replied, “I was.” David also testified that he asked appellant “who broke in,” and that he replied, “I did.”

Appellant recognizes in his brief that in State v. Lang, 515 S.W.2d 507, 509 (Mo.1974), it was expressly held that “a defendant may be convicted on the uncorroborated testimony of an accomplice," but he argues that this court “should not extend that rule * * * to the case in which the defendant was convicted on the uncorroborated hearsay testimony of the accomplice alone.”

Appellant does not direct our attention to what he contends to have been the hearsay testimony, but we assume it was the statement of David that appellant told him that he previously had broken into the Lentz cabin. Aside from the possibility of the testimony being admissible under a recognized exception to the hearsay rule, there was no objection to the testimony. In addition, there was corroboration of David’s testimony. The evidence, other than the testimony of David, authorized a finding that when Mr. Lentz left his cabin it was locked, and that it was subsequently broken into and property therein was stolen. Such evidence also authorized a finding that shortly thereafter appellant was in possession and control of the stolen property. It has long been the rule that an inference that appellant was the one who broke and entered the building is permissible by reason of his recent and unexplained possession of the property which had been stolen from the building during the burglary. State v. Bradley, 485 S.W.2d 408 (Mo.1972); State v. Miller, 499 S.W.2d 496 (Mo.1973); State v. Lewis, 482 S.W.2d 432 (Mo.1972). We find no merit to this contention.

In the opening statement the prosecutor commented: “Mr. Moss is going to take the stand. * * * He will tell you that on that evening he was at his apartment and the defendant came to his apartment and they left. They were going to steal some gas for Moss’s car but they didn’t because Moss didn’t have a hose to siphon it with. And they were going down Acid Mine Road * * *.” At this point appellant asked for a mistrial. After some discussion out of the hearing of the jury, the court stated that the “statement was improper,” and it admonished the prosecutor not to “bring any more outside things in this statement.” The request for a mistrial was denied. No other relief was requested.

We need not decide if the ruling of the trial court was a proper exercise of discretion, see State v. Camper, 391 S.W.2d 926 (Mo.1965), because in any event the possibility of any prejudicial effect was removed by appellant. When David Moss testified for the State he was not asked anything concerning the intent to steal gasoline. However, on cross-examination by appellant the following testimony was elicited:

Q. All right. What did you talk about? Tell the jury.
A. About driving around, maybe stealing some gas.
Q. You were going to steal some gas?
A. Yes, sir.
Q. For your car?
A. Yes, sir.
Q. But you didn’t do it; is that correct?
A. Yes, sir.
Q. And what is the reason you didn’t do it?
A. I didn’t have a hose.
Q. All right. Did you customarily steal gas for your automobile?

At this point the court sustained an objection of the prosecutor that this was not “proper cross-examination.”

Appellant cannot complain on appeal about the reference in the opening statement to the intent to steal gasoline when he brought forth on cross-examination the only testimony on the matter. Appellant’s point is without merit.

Appellant also asserts that prejudicial error resulted when the trial court refused to grant a request for a mistrial “made in response to extremely prejudicial testimony intentionally elicited from the State's witness by the prosecutor relating to a separate and distinct crime of receiving stolen property.”

After David Moss testified on direct examination, in which he made no reference whatever to the fact that he was an inmate of the Algoa Reformatory or to his participation in a burglary at the Windmill Restaurant, he testified in response to questions of appellant on cross-examination that he was serving time in the reformatory for the burglary of the Windmill Restaurant and for stealing. He was then asked:

Q. And when was that done, sir?
A. April of ’75.
Q. Did you do that alone?
A. No, I didn’t.
Q. There were other people with you?
A. Yes.

On redirect examination the following occurred:

A. Now, Mr. Harlan [defense counsel] wanted to know about who was involved in that Windmill burglary. Let me ask you this: Who got the stolen property from the Windmill burglary for which you have been sentenced to five years in the penitentiary?
A. John Payton.

At this point appellant objected on the basis that he was not being tried for receiving stolen property, and he requested a mistrial. The court refused to grant a mistrial, but it stated that the matter was irrelevant to any issue and that counsel should not go into the matter any further. Appellant then asked that the jury be instructed to disregard the answer and the court did so.

Appellant opened up the matter on cross-examination and we doubt that the redirect examination, strictly speaking, was improper. But in any event, it was within the discretion of the court whether to grant a mistrial. State v. Camper, supra. Clearly, there was no abuse of discretion in this case.

Appellant testified in his own behalf, and on direct examination in response to questions by his counsel he testified as follows:

Q. Now, John, have you ever been in any trouble with the law prior to this time?
A. Yes.
Q. All right. Will you tell the jury what that was?
A. Two years ago I was put under arrest for marijuana charge and it was a misdemeanor and I was placed on probation.
Q. All right. Aside from that one incident have you ever been in any other trouble with the law or with the juvenile authorities or with anybody?
A. No, sir.

On cross-examination, appellant again testified that he had not gotten into other trouble. The prosecutor then asked: “As a matter of fact weren’t you arrested for burglary in the second degree and stealing by Officer John Berger and Officer Ed Warner of the Franklin County Sheriff’s Department on March 3, 1975?”

After a discussion out of the hearing of the jury, the court refused appellant’s request for a mistrial, but it stated that unless the prosecutor could show a conviction he was not to ask questions about an arrest. Appellant had testified on direct examination that other than the arrest on the marijuana charge he had not previously been “in trouble.” In that manner he attempted to show previous good conduct on his part. It was proper to cross-examine him with reference to any subject matter concerning which he gave testimony on direct examination. State v. Dees, 276 S.W.2d 201 (Mo.1955); State v. Williams, 519 S.W.2d 576 (Mo.App.1975). In State v. Elbert, 471 S.W.2d 170, 172 (Mo.1971), the defendant testified that a previous marijuana conviction was the only trouble he had had with the police. On cross-examination the State introduced testimony regarding several prior arrests. The court pointed out that pursuant to § 546.260 RSMo 1969, an accused may be cross-examined as to any matter referred to in his direct examination, and it concluded that “the cross-examination of appellant was, under the circumstances of [that] case, a permissible attempt to impeach [the accused’s] obvious effort to present to the jury a record of previous good conduct.” We find no merit to this contention of appellant.

Charles Earl Payton, who was not related to appellant, testified on direct examination that he was acquainted with appellant’s reputation in the community for “truthfulness and honesty and veracity,” and that his reputation was “very good.” On cross-examination he was asked if he had heard that appellant “was arrested for burglary in the second degree on March 3,1975,” and he replied “Yes, sir.” Appellant objected and requested a mistrial. The court sustained the objection, but refused to grant a mistrial.

Assuming that this constituted testimony as to appellant’s good character, but see State v. Underwood, 530 S.W.2d 261 (Mo.App.1975), the general rule is that “the State may cross-examine a character witness with reference to defendant’s prior arrests and accusations of specific misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness.” State v. Siems, 535 S.W.2d 261, 264 (Mo.App.1976). See also State v. Hastings, 477 S.W.2d 108 (Mo.1972), and State v. Rojano, 519 S.W.2d 42 (Mo.App.1975). However, in any event, whether a mistrial should have been granted, assuming improper cross-examination which we are convinced did not occur, there was no abuse of discretion on the part of the trial court. See State v. Camper, supra; State v. James, 347 S.W.2d 211 (Mo.1961).

On direct examination appellant testified that he had never “taken anything out of anybody's home,” and that he had never “stolen anything in [his] entire life.” On rebuttal the State called David Moss who testified, over objection, that he and appellant had committed several burglaries including business places and private homes.

By his testimony appellant sought to present himself to the jury as a person, now charged with burglary and stealing, who had never before committed such offenses. The courts have consistently held that any competent testimony which tends to counteract or disprove evidence offered by a defendant may be presented in rebuttal of defendant’s testimony or evidence, subject only to the discretion of the trial court to control within reasonable limits the scope of rebuttal testimony. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968); State v. Kirk, 510 S.W.2d 196 (Mo.App.1974). Clearly, if appellant had not so testified, the testimony of David Moss on rebuttal would not have been proper. But when appellant elected to tell the jury that he had not stolen from a home, and that he had never stolen anything, he cannot complain that the State presented evidence to the contrary.

The judgment is affirmed.

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


author: McMILLIAN, Judge.

text:
    James TURNER, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39250.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

      David V. Uthoff, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Movant-appellant appeals from a judgment and order of the circuit court of St. Louis City denying, without an evidentiary hearing, his Rule 27.26, V.A.M.R., motion to vacate and set aside his conviction for the illegal possession of a controlled substance. State v. Turner, 543 S.W.2d 270 (Mo.App.1976). We affirm.

Prior to the filing of the instant Rule 27.26motion, appellant filed another Rule 27.26motion. Because an appeal was pending in this court at the time the first Rule 27.26motion was filed, the trial court, and properly so, dismissed the motion as premature. Rule 27.26(b)(2).

In the present motion appellant set forth two grounds for relief: (1) lack of a knowing waiver to a trial by a jury, and (2) ineffective assistance of counsel and unconstitutional sentencing.

In denying appellant’s motion for relief, the trial court specified two grounds — first, that appellant had exhausted his remedy by failing to appeal the dismissal of the first Rule 27.26 motion as premature; and, second, that the pending motion “failed to allege with the sufficient degree of specificity, those factual matters upon which his claim is based.”

To support the dismissal of appellant’s motion, it is only necessary to show that the trial court’s action was proper, and not that the court’s assigned reasons were correct. State v. Garton, 371 S.W.2d 283, 290 (Mo.1963); State v. Anderson, 386 S.W.2d 225, 229 (Mo. banc 1963); Umfress v. State, 512 S.W.2d 178, 179 (Mo.App.1974).

In Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), the court declared the standard for review as to whether a movant was entitled to an evidentiary hearing to be: “. . . (Movant) . . . must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” While Smith dealt with a collateral attack upon a guilty plea, the same standard has been employed in cases where no guilty plea was involved. Arnold v. State, 545 S.W.2d 682, 683 (Mo.App.1976); Voegtlin v. State, 546 S.W.2d 40, 41 (Mo.App.1977).

Applying the Smith standard, appellant’s allegation as to the jury waiver is without merit. The trial record refutes his contention because the trial court not only asked him if his attorney had explained to him his right to be tried by a jury, but also explained to appellant the consequences of the waiver.

Appellant alleges two grounds as the basis of his claim that counsel’s assistance was ineffective. First, counsel neglected to interview any of the state’s witnesses; and, second, counsel failed to interview or subpoena prospective alibi witnesses, whose names appellant asserts he supplied counsel several weeks before trial.

Both allegations are mere conclusional statements, devoid of any supporting facts. Appellant neither names any witnesses to whom he is referring nor shows how the proposed interviews would have been beneficial to the preparation of his defense. Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977). Additionally, appellant’s second complaint is contrary to the record. During the trial, counsel stated that she had just been informed by appellant that two alibi witnesses were in the court; that she assumed them to be alibi witnesses; and that Mr. Sullivan (the prosecutor) did not know about them because she did not know about them. Subsequently, after interviewing the two witnesses in the presence of appellant, they both agreed not to call the two witnesses. Consequently, we disallow both contentions.

Finally, we reject the allegation of error pertaining to the sentences imposed upon the appellant. True, § 546.480, RSMo 1960, requires that a sentence imposed upon a second or subsequent conviction to run consecutively from the sentence on the first conviction, but some of the sentences imposed upon appellant ran concurrently with the first count sentence and with each other. Thus, we find that the trial court was merely exercising the discretion permitted it in determining whether sentences would run consecutively or concurrently. State v. Baker, 524 S.W.2d 122, 131 (Mo. banc 1975); Lawson v. State, 542 S.W.2d 796, 797 (Mo.App.1976).

Accordingly, judgment is affirmed.

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


text:
    STATE of Missouri, Respondent, v. Frederick SIMMONS, Appellant.
    No. 38030.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 29, 1977.

      Fredman, Watkins & Fredman, Richard A. Fredman, St. Louis, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Appellant Frederick Simmons appeals from judgments entered on jury verdicts in the Circuit Court of the City of St. Louis finding him guilty of forcible rape and robbery first degree. Appellant was sentenced to two concurrent terms of five years’ imprisonment. For reversal appellant argues that the trial court erred in admitting into evidence: (1) certain impeachment evidence and (2) identification testimony. For the reasons hereinafter given, we affirm the judgments.

From the evidence presented, the jury could have reasonably found that on April 4, 1975, the prosecutrix, a twenty-year old university student, was walking toward her apartment building and saw two men sitting in the vestibule or area between the locked inner door and the unlocked outer door of the building. The vestibule was well lighted. As she unlocked the inner door, the taller of the two men, subsequently identified as Harold Derrick, grabbed her from behind and forced her inside. She was forced upstairs. Derrick threatened to kill her if she screamed and held a small gun to her head. Derrick demanded her purse, which contained $11.00 in one-dollar bills. At this point the prosecutrix collapsed to the floor, feigning unconsciousness, in an attempt to avoid being killed. Someone took her keys. Appellant returned after unsuccessfully trying to find her apartment and raped her. She testified that although Derrick continued to hold her head, she was conscious throughout and able to see appellant through Derrick’s fingers.

When the police arrived, the prosecutrix was able to give them a general description of the two men as black, one much shorter than the other, and both wearing dirty old clothes. One of the police officers had seen two men who fit that description walking in the neighborhood of the apartment building when he answered the call. Two police officers then went to look for the men. They were picked up several blocks away. The police found a .25 caliber gas gun, which looked like a .22 caliber automatic and which the prosecutrix later identified as the gun she was threatened with, in appellant’s pants pocket. The police found $11.00 in one-dollar bills and a key, later identified as the prosecutrix’s apartment key, in Derrick’s coat pocket. Derrick and appellant were handcuffed and taken back to the vestibule of the apartment building. The prosecutrix observed them and identified them as her assailants. This confrontation occurred about ten or fifteen minutes after the attack.

At trial appellant offered an alibi defense. He testified that he had been at home that night until about 12:30 a. m. Derrick came by at that time and appellant was walking Derrick home when the police stopped them. Appellant testified that Derrick had asked him to keep the gas gun. Appellant’s mother and two of his sisters testified that appellant had been at home until after midnight.

Appellant’s first argument is that the trial court erred in admitting into evidence a letter written by appellant’s mother to the prosecutrix as impeachment evidence. On cross-examination the prosecution asked Mrs. Simmons, appellant’s mother, if she had written a letter to the prosecutrix apologizing for her son’s involvement. Mrs. Simmons answered “No.” The prosecution then sought to introduce the letter itself to impeach her testimony. Mrs. Simmons was questioned further about the signature on the letter and finally admitted that she had written it. The letter was admitted over defense counsel’s objection.

Specifically, appellant argues that the letter was improper impeachment because the content of the letter was not inconsistent with the witness’ testimony, the subject matter was collateral, and the admission by the witness that she had written the letter foreclosed introduction of the letter itself into evidence. We disagree. Defense counsel’s initial objection, made after Mrs. Simmons denied writing the letter, was “I object to that.” This objection does not preserve anything for review. The trial court must be given an opportunity to rule upon an objection after hearing reasons for the exclusion. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974); State v. Jones, 462 S.W.2d 661, 663 (Mo.1971). Moreover, it appears from the record that the consistent theory of objection, had the point been properly preserved, would have been that of prejudice. We note that the admissibility of potentially prejudicial evidence is within the discretion of the trial court, e. g., State v. Morrow, 541 S.W.2d 738 (Mo.App.1976).

Defense counsel objected to the introduction of the letter itself into evidence by stating it was “ . . . improper cross-examination and impeachment on a collateral matter.” The rule on the scope of impeachment in Missouri allows a party to impeach the testimony of an opponent’s witness, provided such impeachment does not concern immaterial or collateral matters, e. g., State v. Ball, 529 S.W.2d 901 (Mo.App.1975); State v. Alexander, 499 S.W.2d 439 (Mo.1973). A collateral matter is one of no material significance in the case or is not pertinent to the issues as developed. State v. Ball, 529 S.W.2d 901, 907 (Mo.App.1975); State v. Miles, 412 S.W.2d 473, 476 (Mo.1967). The examining party is bound by the witness’ answers on collateral matters, except for criminal convictions. E. g., State v. Diamond, 532 S.W.2d 873 (Mo.App.1976); State v. Johnson, 486 S.W.2d 491 (Mo.1972).

Appellant contends that Mrs. Simmons was impeached on a collateral matter; that is, on her belief that her son was not involved in the rape and robbery. We do not agree with appellant’s construction of the disputed testimony or its characterization as a collateral matter. Appellant’s theory of defense was that he had been home during the evening and early morning hours of that day. At issue was Mrs. Simmons’ credibility as a witness when she testified her son had been home all evening and had not gone out until after 12:15 a. m. We do not believe that challenging the credibility of appellant’s principal alibi witness is a collateral matter.

Appellant also argues that the letter was inadmissible as a prior inconsistent statement because the letter was not inconsistent with Mrs. Simmons’ testimony. Appellant contends that the apology in the letter, “ . . . I am so sorry about the fact that my son was involved in the action concerning you (the victim) . . . ” and her testimony that “he said he wasn’t [involved]” are not prima facie inconsistent statements. Missouri case law requires that “ . . . some real inconsistency must appear prima facie before evidence of alleged inconsistent statements become competent. . . . ” Dolgin v. Potter Elec Signal Co., 536 S.W.2d 61, 66 (Mo.App.1973); State ex rel. State Highway Comm’n v. Fenix, 311 S.W.2d 61, 64 (Mo.App.1958). It is unclear exactly what Mrs. Simmons meant in her letter; she may have been apologizing in very general terms. Her letter and her testimony state that she did not know what happened. Nonetheless, we believe that the statements themselves, in the letter and in her testimony, are prima facie inconsistent.

Appellant also argues that the admission by Mrs. Simmons on cross-examination precluded the introduction of the letter itself into evidence. The admission of a prior inconsistent oral statement into evidence is forbidden after the witness admits making the prior statement, e. g., State v. Earvin, 539 S.W.2d 615 (Mo.App.1976); State v. McCabe, 512 S.W.2d 442 (Mo.App.1974). In this case, however, the witness' prior inconsistent statement was written. Mrs. Simmons examined the letter and admitted that it was in her handwriting. “ . . . [I]f the witness is fairly afforded an opportunity to examine the written statement, and acknowledges to having signed it, it is admissible in evidence to impeach him, whether he was interrogated concerning its contents or not . . George C. Porter Motor Corp. v. United States Cas. Co., 18 S.W.2d 133, 136 (Mo.App.1929); see also State v. Stein, 79 Mo. 330 (1883); Batsch v. United Rys. Co., 143 Mo.App. 58, 122 S.W. 371 (1909).

Appellant in his second point contends that the trial court erred in overruling his pretrial motion to suppress certain identification testimony. Appellant sought to suppress the prosecutrix’s identification of appellant and Derrick as her assailants in a showup confrontation minutes after the rape and robbery. Appellant claimed at the pretrial hearing that the showup was unduly suggestive and therefore in violation of his constitutional right to due process. Appellant did not, however, object to the prosecutrix’s in-court identification, and thereby failed to properly preserve this point for review, e. g., State v. Young, 534 S.W.2d 585 (Mo.App.1976); State v. Yowell, 513 S.W.2d 397 (Mo.1974).

Even though the point was not properly preserved, we will briefly examine appellant’s arguments. We find them to be without merit. Appellant argues that the showup was unduly suggestive because appellant was in handcuffs and surrounded by policemen. Allowing the victim to confront a suspect who is handcuffed and in police custody does not necessarily render the confrontation impermissibly suggestive, e. g., State v. White, 549 S.W.2d 914 (Mo.App.1977); State v. French, 528 S.W.2d 170 (Mo.App.1975). Appellant also argues that the prosecutrix’s agitated state of mind made the showup unduly suggestive. In the absence of any evidence that her emotional state was so severe that her perceptions were affected, we cannot agree. State v. Armbruster, 541 S.W.2d 357 (Mo.App.1976). It is not improper for police to return the suspect to the scene of the crime for immediate identification by the victim. E. g., State v. Barnes, 537 S.W.2d 576 (Mo.App.1976); State v. Smith, 465 S.W.2d 482 (Mo.1971).

Furthermore, the in-court identification testimony was properly admissible, even if the showup was impermissibly suggestive, because there was an independent basis for identification. State v. Jordan, 506 S.W.2d 74 (Mo.App.1974); see also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The record indicates that there was adequate lighting in the apartment building, the prosecutrix had ample opportunity to view her assailants, and the prosecutrix was able to give the police a description adequate enough to aid them in identifying the two men on the street. The prosecutrix also made a very definite identification of the two men at the showup, only minutes after the crime.

Judgments affirmed.

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

      . “ ‘Dear Miss Silver. Prayerfully I am writing you this letter. First, I am so sorry about the fact that my son was involved in the action concerning you Friday night, April, 5, 1975. I don’t really know how to apologize to you. My reason for writing you is that my son is not a talkative person and I don’t know what happened. If you will in any way talk to me, I sure will appreciate it. My phone number is 367-4943. Thank you, Lottie Simmons.’ ”
      “ ‘P.S. I am a mother, have seven daughters. I understand.’ ”


text:
    Homer KIRKENDALL and Wilma Kirkendall, Plaintiffs-Respondents, v. Les TOWNSEND d/b/a Reliable Sewer Cleaners and Raymond L. Boyd, Defendants-Appellants, and Laclede Gas Company, Intervening Plaintiff-Respondent.
    No. 37863.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 29, 1977.

      Barnard & Baer, Richard O. Funsch, St. Louis, for defendants-appellants.
    Dorsey & Aulbert, Gerard M. Dorsey, St. Louis, for plaintiffs-respondents.
   McMILLIAN, Judge.

Defendant-appellant appeals from the circuit court of St. Louis City where the court granted plaintiffs' motion for a new trial after the jury returned a verdict for the defendant. The basis for the new trial stems from the prejudicial effect of an instruction which deviated from the applicable Missouri Approved Instructions. Appellant does not raise issues relating to the weight of the evidence; therefore, only a brief review of the facts is presented.

Appellant, Les Townsend, operates a business known as Reliable Sewer Cleaners. Raymond L. Boyd, a named defendant, was employed by appellant as a sewer cleaner. On July 5, 1975, Boyd was driving a truck owned by the appellant on Pernod Street in St. Louis. At the intersection of Pernod Street and Hampton Avenue, Boyd collided with a Laclede Gas truck driven by respondent Homer Kirkendall. Kirkendall was disabled as a result of the accident and subsequently filed a lawsuit against the appellant and Boyd. Respondent’s wife, Wilma Kirkendall, also claimed damages and loss of consortium. Laclede Gas Company intervened claiming indemnification for benefits paid to the respondent as a result of the accident and for a recovery of damages to its truck.

At the close of the evidence, the court read the instructions to the jury. Instruction No. 6, offered by appellant, was objected to by plaintiffs and is the subject of this appeal. Instruction No. 6 states:

“Your verdict must be for both defendants on the claims of both Homer Kirken-dall and Wilma Kirkendall for damages whether or not Raymond L. Boyd was negligent if you believe:
“First, Plaintiff Homer Kirkendall violated the traffic signal;
“Second, Plaintiff Homer Kirkendall was thereby negligent;
“Third, such negligence of plaintiff Homer Kirkendall directly caused or directly contributed to cause any damages the plaintiffs may have sustained.”

The jury returned a verdict for defendant, and plaintiffs entered a motion for a new trial alleging inter alia that Instruction No. 6 was a deviation from MAI 32.01, in omitting the conjunction “and” between the first and second, and the second and third paragraphs. Plaintiffs alleged such an omission from the Missouri Approved Instructions was prejudicial and a new trial was warranted. The trial court, apparently seeing the possible confusion and prejudice of the omission of the conjunction “and” in the instruction, granted plaintiffs’ motion for a new trial. This appeal followed.

The sole issue on appeal involves the prejudicial effect of a deviation from the Missouri Approved Instructions. Appellants contend that the trial court erred in granting the motion for a new trial and requests this court to set aside the court’s order and reinstate the jury verdict.

Instruction No. 6 conforms to MAI 32.01 in all respects other than the omission of the conjunction “and" between the first and second paragraphs, and between the second and third paragraphs. Supreme Court Rule 70.01, V.A.M.R., provides, in part, as follows:

“(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.
“(c) The giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.”

In Brown v. St. Louis Pub. Service Co., 421 S.W.2d 255 (Mo.1967), our supreme court emphasized the need for strict compliance with the Missouri Approved Instructions. The court set out the following test:

“Accordingly, where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” Id. at 259 (Emphasis added.)

Appellant contends that the inclusion of a semicolon between the paragraphs of the instruction demonstrates an interrelation so as to negate any confusion. Further appellant contends that despite the minor deviation, it is perfectly clear that no prejudice has resulted. Although we hesitate to express the opinion that every deviation, however small, is grounds for a new trial, we believe that appellant has failed to make it perfectly clear that no prejudice could have resulted. Absent the use of the conjunction “and” following the semicolon, the instruction did not advise the jury that it was required to make a finding on each submitted fact. The inclusion of the conjunction “and” between the paragraphs in MAI 32.01 was intended to eliminate any doubts that a jury is required to make such a finding.

The issue of whether the omission of the conjunction “and” between paragraphs of a Missouri Approved Instruction is error has been considered in several cases. In Holt v. Myers, 494 S.W.2d 430 (Mo.App.1973), our court reversed and remanded the case for a new trial because of the omission of the conjunction “and” between the paragraphs of MAI 32.01. Although there were additional reasons why the instruction was prej-udicially erroneous, this deviation alone was sufficient to require reversal. In Motsinger v. Queen City Casket Co., 408 S.W.2d 857 (Mo.1966), defendant offered a contributory negligence instruction which omitted the conjunction “and” between the first and second paragraphs. Our supreme court ruled that the omission made the instruction erroneous and remanded the case for a new trial. See also Slyman v. Grantello, 429 S.W.2d 282[1] (Mo.App.1968); Moore v. Huff, 429 S.W.2d 1 (Mo.App.1968).

Appellant has failed to provide this court with authority that considers the omission of the conjunction “and” harmless error. We trust that in the future such an error will be remedied before the instructions are read to the jury.

While the results reached herein facially may appear to be hypertechnical, yet Judge Finch, in the Brown case, summed up the court’s philosophy as to variances from MAI instructions this way:

“It must be recognized, however, that a system of instruction such as MAI is inherently standardized and inflexible. If this court is to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written.” Id. at 258 (Emphasis added.)

Accordingly, judgment is affirmed.

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


author: WELBORN, Special Judge.

text:
    CAMERON STATE BANK, Respondent, v. John C. SLOAN et al., Appellants.
    No. KCD 28233.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Richard G. Poland, Cameron, for appellants.
    Harold L. Miller, Robison & Miller, Mays-ville, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special JJ.
   WELBORN, Special Judge.

Action to void release of deed of trust and cancellation of note given which it secured on grounds that note had been marked “paid” by mistake. Defendants counterclaimed for $10,000 actual and $250,000 punitive damages, alleging that “mistake” relied upon was result of gross and wanton negligence on part of holder of note. Upon trial, court sustained plaintiff’s motion for directed verdict on counterclaim and found in favor of plaintiff on its petition. Defendants have appealed.

On February 4, 1972, Melvin C. Sloan executed a note for $10,000 evidencing an indebtedness to the Cameron State Bank of Cameron, Missouri. Sloan also gave a deed of trust on property in Caldwell County as security for payment of the note.

Melvin C. Sloan died testate, May 30, 1974. His sons, John C. Sloan and Douglas C. Sloan, were devisees of their father’s real property, including the tract covered by the deed of trust. John was appointed executor of his father’s estate.

At the time of his death Melvin C. Sloan was indebted to the Cameron State Bank on account of other notes. Sloan had taken out $10,000 credit life insurance and when the proceeds of that policy were received by the bank on July 5, 1974, the sum was applied against two notes. On July 8,1974, at the request of John Sloan, the application of the proceeds of the policy was changed to other notes. None of the insurance proceeds was applied to the $10,000 note, on which there was at that time a balance of $8,000 due.

The $10,000 note was included in a participation agreement between the First National Bank of Braymer and the Cameron State Bank. The latter bank retained the note and collected the principal and interest payments and remitted them to the Bray-mer Bank. On July 8, 1974, the indebtedness was sold to the Braymer Bank. For some reason, the note was not delivered to the Braymer Bank, but the Cameron State Bank “zeroed out” the indebtedness on its books.

On July 10,1974, an officer of the Cameron State Bank discovered the $10,000 note in its files and in view of the record on which the loan had been “zeroed out” marked the note “Paid.”

In October, 1974, the presence of the note marked “Paid” in the Cameron Bank files came to the attention of Mr. Carl E. Reynolds, Vice-President and Cashier of the Cameron Bank. He wrote a letter to John Sloan on October 17, 1974, advising him that the “real estate loan which your father had with our bank was paid off last July by the insurance company.” He stated that interest in the amount of $275.29 was owing as of July 8. John Sloan came to the bank on October 21, and paid the interest demanded. The bank sent the note to the Caldwell County Recorder of Deeds for release of the deed of trust. The deed of trust was released and the Sloan brothers received the note marked “Paid” and the released deed of trust.

In January, 1975, the Sloan brothers sought a loan from the Kingston Bank and in their application described the real estate owned by them as free and clear of encumbrances. An officer of the Kingston Bank checked and discovered that the Braymer Bank records showed that they had an unpaid “participation” loan for $8,000, secured by a deed of trust on the property. The Sloans produced the note marked “Paid” and the released deed of trust. Braymer Bank then demanded that Cameron pay the loan. Cameron repurchased the loan from Braymer.

Officers of the Cameron Bank got in touch with the Sloans and told them that there had been a “big mistake” on the $8,000 loan. The Sloans were asked to reaffirm the note and make a new note but they refused to do so because the bank did not explain the “mistake” to their satisfaction.

On March 6, 1975, the Cameron State Bank filed its petition in this action, seeking to set aside the release of the deed of trust and to void the cancellation of the note on the ground of mistake. The petition also sought foreclosure of the deed of trust. An answer in effect a general denial was filed by John C. Sloan as “de facto Executor of the Estate of Melvin C. Sloan.” The answer of John C. Sloan and Douglas C. Sloan as individuals incorporated the answer of John as executor. The individuals also counterclaimed, alleging that, as a result of the bank’s advising them that the $8,000 due on the real estate loan had been paid by application of proceeds of a credit life insurance policy, the inventory of their father’s estate was amended to show additional assets in that amount, resulting in defendants being required to pay additional court costs, attorney’s fees and Missouri inheritance tax in the administration of the estate. The counterclaim alleged that, if the “mistake” relied upon by the bank was in fact made, “said ‘mistake’ as to these defendants was so incredible as to amount to gross and wanton negligence in utter disregard to these defendants’ rights.” The counterclaim sought $10,000 actual and $250,000 punitive damages.

At the conclusion of a trial to a jury the trial court sustained plaintiff’s motion for a directed verdict on the defendants’ counterclaim. Plaintiff dismissed its count for foreclosure. The jury was then dismissed because the count remaining was in equity.

The court found that the release of the deed of trust and cancellation of the note were the result of a “bilateral mistake” and declared these acts void and of no effect.

In this court, appellants contend that the trial court erred in voiding the cancellation of the note and release of the deed of trust on the grounds of bilateral “mistake” because the mistake was unilateral, having been committed solely by the bank, and that under the law the bank was not entitled to relief from its unilateral mistake in the facts and circumstances of this case.

Appellants’ argument is bottomed upon what was said in Brown v. Fagan, 71 Mo. 563 (1880), and subsequent cases following Brown, such as Croy v. Zalma Reorganized School District R-V of Bollinger County, 434 S.W.2d 517 (Mo.1968), and Barrett, Fitch, North & Co. v. Hudson, 403 S.W.2d 944 (Mo.App.1966).

In Brown, upon the dissolution of a partnership, Fagan had given Brown a note in settlement of their partnership account. When Fagan brought suit on the note, Brown set up the defense that upon the dissolution of the firm he had mistakenly assumed that the partnership had made money whereas in fact it had not and he asked that the suit on the note be enjoined until there had been an accounting of the partnership affairs.

In upholding the dismissal of the equitable defense and affirming the judgment for plaintiff, the court said (71 Mo. 568):

“It is not claimed that this evidence shows that any fraud was practiced by plaintiff in the procurement of the execution of the note sued on; but it is insisted that it does show that the note was given under a mistake of facts which constituted the inducement for the execution of it, and in such cases equity will afford relief. It may be conceded to be established law that equity will relieve against a contract which is founded on a mutual mistake of the facts which constitute the essence and basis of the contract; but it is equally well settled that equity will not afford relief in cases of mistake of facts, when the party entering into it had the means of knowing the true state of facts, and by gross negligence failed to use such means. Though a court of equity will relieve against mistake, it will not assist a man whose condition is attributable to that want of due diligence which may be fairly expected from a reasonable person; and gross negligence is presumed when a man is ignorant of the general laws of his country or of his own affairs. Kerr on Fraud and Mistake, pp. 406, 507. Mr. Story, in treating this subject, in vol. 1, Sto.Eq., § 146, observes: ‘It is not, however, sufficient in all cases to give the party relief, that the fact is material; but it must be such as he could not, by reasonable diligence, get knowledge of when he was put upon inquiry; for it, by such reasonable diligence, he could have obtained knowledge of the fact, equity will not relieve him, since that would be to encourage culpable negligence.’ ”

Croy noted what had been said in Brown about mutual mistake but Croy did not actually involve a mistake by either party, and was concerned with a transaction in which a party to a sale of real estate made an unwarranted assumption as to the property being sold, the purchaser having been fully aware of the uncertainty which was present. See Rainey v. Foland, 555 S.W.2d 88 (Mo.App.1977).

In the Barrett, etc., case, a broker purchased stock from a customer on the erroneous assumption that the stock was in a Texas corporation whereas it was in a Colorado corporation of the same name. The broker sold the stock to another broker who informed the broker-seller that the stock was not that of the Texas corporation and returned the stock. The broker-seller was obliged to purchase stock of the Texas corporation elsewhere in order to fulfill its contract. It then sought to rescind the purchase from the customer on the grounds that the parties were mutually mistaken as to the true identity of the shares sold. In holding that the broker could not rescind the contract, the court pointed out that it had the stock certificate in its possession for seven days, that it knew that the stock for which a price was quoted was a Texas corporation, that the certificate in its possession showed that it was in a Colorado corporation, yet the broker proceeded with the transaction “without bothering to make the small effort which would have disclosed the ‘mistake.’ ” 403 S.W.2d at 946[1],

The court pointed out that the owner who offered to sell the stock offered it for sale without regard to whether it was in a Colorado or a Texas corporation. He was not aware of the purchaser’s assumption that his stock was in the Texas corporation. The court concluded that there was no mutual mistake of fact justifying rescission.

Language found in these cases does lend some support for appellants’ position. The courts do speak of the necessity for a mutual mistake as a basis for relief and state that relief should be denied the party who fails to avail himself of information in his possession which would reveal the facts. Here there is no doubt that more careful examination of the bank’s records would have disclosed that the note had been sold to the Braymer Bank and that it had not been paid by the maker. However, the fact that a miscalculation was made by one party and involved negligence on his part does not preclude a finding of mutual mistake.

An example of this is found in New York Life Ins. Co. v. Gilbert, 215 Mo.App. 201, 256 S.W. 148 (1923). In that case, the holder of a policy of life insurance, in the hands of the insurer because the insured had borrowed on the policy, inquired of the insurer what amount of paid-up insurance he would receive if the value of the policy was first applied to satisfaction of the loan. The insured was advised that he would receive $768 paid-up insurance in such case. The insured advised the company that he would accept those terms and when the interest on the loan was not paid, the indebtedness was cancelled and the policy returned to the insured on January 12, 1921, indorsed for paid-up insurance of $768. On February 2, 1921, the insurer discovered that it had made an error in computing the amount of paid-up insurance and that the amount should have been $308. The insurer requested return of the policy for correction of the indorsement but the insured refused to surrender the policy. The insurer then brought suit to reform the indorsement on the grounds of mutual mistake. As does the appellant here, the insured took the position that he knew nothing about the calculation made by the insurer and had nothing to do with the mistake.

In granting relief the court concluded that the mistake was mutual “in that the insured mistakenly supposed that the amount indorsed on the policy was properly calculated as to what he was entitled to under the policy whereas it was not: * * .” 256 S.W. 151. The court also noted (256 S.W. 152):

“ * * * There was no injury caused the insured by the mistake made in the case at bar. No rights of a third party have intervened, nor have defendants acted to their injury upon the assumption that the amount indorsed on the policy was the true amount of paid-up insurance. The insured thought that the calculation was correct; he did not ask for any more than he was entitled to under his policy; plaintiff discovered the mistake in a short time and immediately notified the insured and sought to have the policy corrected at a time that to have done so would have caused no injury to the insured or his beneficiary.”

In this case, the bank acted on the mistaken belief that the note had been paid. The appellants accepted the benefit of the bank’s action on the same erroneous assumption. True, the erroneous assumption arose because of negligence on the part of the bank, but that fact does not permit appellants to gain an unconscionable advantage to which they are not entitled when there has been no change of position in reliance upon the bank’s act. In the case of Troll v. Sauerbrun, 114 Mo.App. 323, 89 S.W. 364 (1905), the holder of a deed of trust released it on the mistaken belief that a previous encumbrance had been discharged. When the error was discovered, an action was brought to set aside the release. The holder of the previous encumbrance who sought the benefit of the mistake complained that the plaintiff was entitled to no relief because the release of the deed of trust was the result of negligence. In rejecting this contention the court said (89 S.W. 365-366):

“ * * * His negligence did nobody but himself any harm, and Sauerbrun cannot take advantage of it to have his subsequent deed of trust take the place of Troll’s prior one and thus cause a loss to plaintiff. Such a result would be unconscionable. To reinstate the lien inadvertently released will not prejudice the rights of Sauerbrun in the slightest degree, but will leave him with the same security he enjoyed before that release was made. Troll was not culpably careless in making the mistake he did, considering the fact that there were so many deeds of trust with the same trustee. Any one was liable to get confused about them. It is not every degree of negligence which will prevent a court of equity from granting a relief in a case like this. It is said by a standard author that the best authorities lay down the rule that the neglect must amount to the violation of a positive legal duty; that even clearly established negligence will not be sufficient ground for refusing relief, if the other party was not prejudiced thereby. 2 Pomeroy, Eq. Juris. (3d Ed.) § 856, citing U. S. Bank v. Bank of Ga., 10 Wheat. 333, 6 L.Ed. 334; Mayer v. Mayor, etc., 63 N.Y. 455; Snyder v. Ives, 42 Iowa 157.”

The last two discussed cases involved factual situations much nearer to the facts of this case than did the cases relied upon by appellants. While it may not be possible to reconcile all that was said in those cases, nevertheless, this court cannot find that the trial court in this case erroneously declared the law or erroneously applied the law and its judgment will be affirmed.

Defendants’ counterclaim alleged that, as a result of the bank’s informing them that credit life insurance had paid the $8,000 due on the note, the inventory of their father’s estate was amended to show as an asset $8,000 credit life insurance proceeds. It further alleged that by reason of the amended inventory defendants were required to pay additional court costs, Missouri inheritance tax and attorney’s fees in the administration of the estate. In dismissing the counterclaim, the court stated that there had been neither allegation nor proof of special damages. The counterclaim did sufficiently allege items of special damages. Rule 55.19. The only proof offered was testimony of John C. Sloan that because of the information regarding the payment of the loan, an amended inventory was filed, eliminating the $8,000 liability, thereby increasing the value of the estate by $8,000. The clerk of the probate court was called as a witness and testified that because of the additional $8,000 the estate was required to pay $80 in additional inheritance tax to the State of Missouri. However, the claim for damages was asserted by the individual appellants and, other than the fact that they were the sole heirs, there was no proof as to what, if any, effect the payment of additional tax had upon their share of the estate. (The erroneously paid tax was subject to refund. § 145.250, RSMo 1969.) Therefore, the trial court’s ruling on this score has not been shown to have been erroneous.

Appellants also contend that the trial court’s conclusion that there was no evidence of wanton negligence was erroneous. Other than the bare assertion that the “bank’s incredible bookkeeping method, as elicited from its own witnesses, is so bizarre as to defy description * * *,” the appellants offer no argument or authority in support of this contention. Such a bare assertion will not suffice to sustain the appellants’ burden in this court of demonstrating error on the part of the trial court.

Judgment affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    T. T. H. V., a minor, by T. T. M., her next friend, Plaintiff, v. L. C. A., Jr., Third-Party Plaintiff-Respondent, v. T. T. M., Third-Party Defendant-Appellant.
    No. 28514.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.

      Kendall R. Vickers, Ewing, Ewing, Carter, McBeth & Smith, Nevada, for third-party defendant-appellant.
    No respondent’s brief filed.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

This case originated with the filing of a petition for declaratory judgment by T.T.M. as mother and next friend of T.T.H.V. for a declaration that L.C.A. was not the father of T.T.H.V. L.C.A. filed a third party petition to name T.T.M. as a third party defendant.

The court found L.C.A. to be the father of T.T.H.V. and granted custody to the mother but ordered L.C.A. to pay $100 per month in support. T.T.M. appeals and alleges there is no substantial evidence to support the judgment, error in the admission of evidence and error in the refusal to grant a continuance. Affirmed.

T.T.M. testified she lived in Viet Nam and became acquainted with L.C.A. at an officers’ club when he was in Viet Nam as a civilian employee of the United States. She testified she had a Vietnamese husband with whom she lived and stated unequivocally the child in question was the offspring of that marriage. She steadfastly denied any sexual relationship with L.C.A. except for one occasion when the child was fourteen months old. She conceded L.C.A. did pay the expenses for her, the child, her mother and sister, to leave Viet Nam and come to the United States.

The mother of T.T.M. testified by deposition and generally corroborated the testimony of her daughter except for the fact she could not remember the name of her daughter’s husband.

L.C.A. testified he met T.T.M. when she was working in the officers’ club and shortly thereafter began living with her. He related T.T.M. had been married, but her husband had been killed prior to his meeting her. He stated they went through a marriage ceremony in Viet Nam, although the marriage was not recorded with the American Embassy. He stated they were living together in a house in Saigon during the time of conception of the child. L.C.A. stated unequivocally he was the father of the child. L.C.A. returned to the United States and thereafter received letters from T.T.M. reporting the child to be ill and pleading for him to remove her and her family from Viet Nam to preserve their safety. He stated he flew back to Viet Nam and paid the expenses for T.T.M., her mother and sister, and the child to fly to the United States.

The group settled in Nevada, Missouri, but very shortly after arrival difficulty arose between L.C.A. and T.T.M. It was after this breach in the relationship this lawsuit was filed.

A medical technician testified as to a study of blood samples taken from L.C.A., T.T.M., and the child. He stated he could not positively state that L.C.A. was the father, but he could state the blood test did not exclude L.C.A. as the father.

A guardian ad litem was appointed for the child and he participated in the trial along with counsel for T.T.M. and L.C.A.

T.T.M. first contends there was no substantial evidence upon which the court could find L.C.A. to be the father of the child. The factual recital just completed shows substantial evidence upon which the court could base its judgment. The irreconcilable conflict in the evidence between T.T.M. and L.C.A. was resolved by the trial court. This of necessity shows the court believed L.C.A. In such a situation this court will defer to the finding of the trial court based as it is on the credibility of the witnesses and the weight to be given their testimony. D. I. M. v. P. D. M., 548 S.W.2d 237, 239 (Mo.App.1977).

The trial court having resolved the conflict in the evidence and there being substantial evidence to support the judgment, the same must be affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

T.T.M. next complains of the refusal to grant her a continuance. On the day of trial, T.T.M.’s counsel advised the court he had arranged for an interpreter to be present at the trial to interpret the proceedings for T.T.M., but the interpreter was snowbound in Kansas City. He requested a continuance on this ground. The court stated he understood T.T.M. could speak English and stated he would proceed and see how they got along and if there was any difficulty he would consider further the necessity of an interpreter. The testimony of T.T.M. proceeded without objection, and, so far as the record reveals, without difficulty. Although T.T.M. reflected in her answers some incorrect usage of the English language, she appeared to understand the questions and her answers were completely intelligible.

T.T.M. claims her credibility was damaged by the absence of an interpreter because she first denied having slept with L.C.A., but later was recalled to the stand and admitted this fact. She argues her denial arose from a misunderstanding of the question and an interpreter could have stated the question so that she could have answered correctly the first time.

On direct examination T.T.M. was asked by her counsel on at least two occasions if she had ever slept with L.C.A. On both occasions she did not demonstrate any lack of understanding of the question and gave an emphatic denial. When she was recalled she was asked substantially the same question and admitted she had done so one time when the child was fourteen months old. The record does not support the argument now made that the difference in her answers was because of her lack of understanding of the English language. The record simply indicates substantially the same question with different answers.

The use of an interpreter rests within the discretion of the court. Kley v. Abell, 483 S.W.2d 625, 627[2, 3] (Mo.App.1972). No abuse of that discretion is shown here.

The second ground for continuance was to allow time to obtain the testimony of two witnesses who were located in California about sixty days prior to the date of trial. The motion on this ground failed to show the exercise of due diligence to obtain the testimony of those witnesses in the interval between the time counsel stated the witnesses were located and the date of trial. Further, the motion showed the evidence which these witnesses- would give would be cumulative to the evidence presented to the court. Under the circumstances shown here, the court did not abuse its discretion in denying the continuance. Kelch v. Kelch, 462 S.W.2d 161, 164 (Mo.App.1970).

The last contention concerns the admission of the testimony of the medical technologist. T.T.M. claims this testimony was inadmissible because it concerns only statistical data and because this evidence admittedly could not prove paternity. “But even though evidence is admitted improperly, when other competent evidence supports a judgment in a court-tried case, such as this, or an equity case, harmless error results. Bashor v. Turpin, 506 S.W.2d 412, 421[8] (Mo.1974); Nordquist v. Nordquist, 321 Mo. 1244, 14 S.W.2d 583, 588[4] (1929).” Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, T70[1-7] (Mo.App. 1975). Such rule applies here. T.T.M. has not demonstrated an absence of sufficient competent evidence to support the court’s decree without considering the blood test results. Assuming arguendo evidence of the blood test was inadmissible, such error is harmless.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thurman Lee CARTER, Defendant-Appellant.
    No. KCD 28611.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals his conviction as a second offender of the crime of robbery first degree.

Defendant raises as a single point of error that the evidence was insufficient to support the charge.

The single issue raised by the defendant, that of sufficiency, requires that the evidence be reviewed for that evidence favorable to the verdict.

In the context of the instant case, the measurement of the evidence must be against the information filed and the instruction given, as the thrust of the defendant’s contention on the issue of sufficiency is not that the elements of a criminal act were not shown, but that the evidence does not support the charge made and the verdict found.

The information in relevant part reads as follows:

“. . . did feloniously rob, steal, take and carry away certain property, to-wit: Twenty-Nine Dollars ($29.00) the money and personal property of the said Church’s Chicken, a corporation, in the care and custody of Donald Williams, from the person and against the will of the said Donald Williams, ... by putting the said Donald Williams in fear of an immediate injury to his person;

The State’s principal instruction, in relevant part:

“First, . . . Donald Williams was in charge of miscellaneous U. S. currency and coin, and
Second, . . . the defendant and another, by means of a dangerous and deadly weapon, took the property from Donald Williams against his will by causing him to fear immediate injury to his person, and . . .”
The verdict found is as follows:
“We, the jury, find the defendant, THURMAN LEE CARTER, guilty of robbery in the first degree, as submitted in Instruction No. 6.”

The evidence and favorable inferences would establish the following. Defendant was on the premises of the restaurant at about 10 p. m. The defendant requested free food and told the manager he would rob him if he did not receive the food. At about 11:45 p. m., the defendant and another approached the restaurant. The purported victim, Williams, testified that as he saw the defendant approaching he told a female worker to wait on them and retreated to the back room and told the manager who was using the telephone that they were about to be robbed. Williams then stationed himself at what he described as a peephole from the back room to the serving area and observed the defendant approach the female employee, demand money, and take money from the female employee. The female employee had removed the money from the cash register. The defendant had his hand concealed in his shirt front when he demanded the money. Two police officers who had been parked nearby for the surveillance of the restaurant because of recent robberies apprehended the defendant in the parking lot and recovered the money. Williams was adamant in his testimony that nothing was taken from him or his person. No gun was found. The police officers made a report that indicated that Williams had taken the money from the register and handed it to the defendant. The officer at trial said the female employee handled the money and that the report was erroneous. Vigorous cross examination failed to change the testimony of either of the officers, each insisting that the female employee handled the money and that the report was in error. The only variance in the testimony of the officers and Williams is that the officers indicate that they saw the defendant have a conversation with Williams. The officers were 50-60 yards away in their car and, of course, could not relate any conversations. Williams’ testimony is that he did not talk to the defendant.

The evidence shows a robbery; the problem is that it does not show the robbery that is charged, submitted to the jury and found in their verdict.

It is elementary that the proof in the case must be of the charge laid in the information, and a variance between the proof and the charge is error. State v. Scott, 230 S.W.2d 764 (Mo.1950).

So also, the instructions must be supported by the evidence. Scott, supra; State v. Dayton, 535 S.W.2d 469 (Mo.App.1976); State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). The two Dayton cases cited are analogous to the instant case, for in those cases as here, the information properly charged an offense, and the instruction submitted the essential findings required by the information, but the proof was lacking on the essential allegation and finding that it was the procreative organ of the named defendant which accomplished the sodomy. In the instant case, there is no evidence that this defendant took the money from the witness Williams, as the information charges, and the instruction requires as a finding.

It is, of course, necessary that the departure or variance between the proof and the information, or between the proof and the instruction be prejudicial to the defendant.

Typical of cases in which some variance has been found not to be prejudicial are State v. Scott, 534 S.W.2d 537 (Mo.App.1976) and State v. Batchelor, 418 S.W.2d 929 (Mo.1967). In these cited cases, the variance or evidentiary failure was as to the ownership of the property taken and in each the court held that the essential proof that the property was not that of the defendant sufficed. State v. Davis, 482 S.W.2d 486 (Mo.1972) is more factually parallel to the instant case. In Davis, the defendant was charged in the information with taking a purse from one girl and the proof was that the purse was taken from a different girl accompanying and having custody of the purse of the owner whose name was alleged in the information. The instruction required a finding by the jury that the purse was taken from the “presence” of the owner, and the evidence supported that finding. The information was in the alternative and also alleged the purse was taken from the “presence” of the owner. There was no variance.

In this case, however, there is no evidence of any possession, actual or constructive by Williams of the money taken from the female employee. It is not shown that Williams was in charge of her activities or even that he was authorized to make change or open the register. The proof shows affirmatively he was not the manager.

That prejudice exists in this situation is evident from the record. After the jury retired, they queried the trial judge by written questions. They were as follows:

“Request copy of Police Report and Line-up Report.
“Jury members do not understand Instruction # 6 First.
“Was Donald Williams in charge of Miscellaneous U.S. Currency?
Sam Zuzich”
“To the Jury: It is the jury’s duty to remember the evidence and follow the instructions given by the court.
Judge Hall”

These questions demonstrate the jury’s concern as to the possession by Williams of the currency, a required finding of the instruction upon which there was no evidence. The request for the police report was no doubt referable to the same issue since defense counsel had in cross examination put before the jury the officers’ report which indicated Williams was in possession of the currency, a fact the officer denied at trial by direct testimony and by assertion that the report was in error.

The second Dayton case cited above is similar in this respect to the instant case, for there the jury by its inquiry disclosed its confusion by the failure of the proof.

Defense counsel, at the time the issue of possession arose, complained of the difficulty for the defense arising from the change in testimony from the information and the police report which had been furnished to the defendant. True enough, the objection was on the ground that discovery of a supplemental report mentioned by the officer had not been afforded, but the remarks of counsel indicate that he was meeting with evidence entirely different than that which the information and police report would indicate was to be offered.

The evidence required that the defendant meet a different proof than that alleged in the information and contained in the police report. Such disadvantage is clearly prejudicial to a proper defense.

The disposition of the case presents some difficulty. The proof appears to be sufficient to support a conviction of the defendant for a taking from the unnamed female employee. Likewise, there may be proof that Williams had, in fact, some connection with the custody of the currency.

In the circumstances, it seems proper to reverse and remand, and the State may then elect to either offer further proof on the instant charge or dismiss and file a new charge properly alleging the victim.

The judgment and conviction are reversed and the cause remanded.

All concur.