text:
    Ricardo GIBSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37831.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 1, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.

      Robert C. Babione, Public Defender, James W. Whitney, Jr., Mary Louise Moran, Asst. Public Defenders, St. Louis, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   DOWD, Judge.

This is an appeal from the denial of a Rule 27.26 motion following an evidentiary hearing. Movant, Ricardo Gibson, alleges he had ineffective assistance of counsel which resulted in his coerced plea of guilty to a charge of Robbery First Degree by Means of a Dangerous and Deadly Weapon. § 560.135 RSMo 1969. Movant also pleaded guilty to another charge, but he does not appeal the validity of that plea and subsequent conviction. The court sentenced movant to concurrent sentences of six years on the Robbery charge and two years on the other.

Movant’s attorney at trial, Karl Lang, was hired by movant’s mother at movant’s request. Movant alleges Lang failed to consult with him during his six months of incarceration prior to trial, except for a three minute discussion just prior to trial. He further alleges that Mr. Lang coerced his guilty plea by telling him that a twenty-five year sentence would result if movant went to trial. Movant also contends that Mr. Lang failed to contact prospective alibi witnesses whose names were given to Mr. Lang by the movant.

At the evidentiary hearing movant repeated the allegations made in his motion. On cross-examination he admitted requesting Mr. Lang be hired because he knew him to be a good attorney and had confidence in his ability. Movant was questioned about his testimony at his guilty plea hearing where he had told the court that: 1) he discussed the case fully with his attorney, 2) he was satisfied with his attorney’s advice, 3) he thought his attorney had done all that he could do, 4) no one had threatened him, and 5) his attorney had told him the full range of punishment. At the evidentiary hearing movant said he lied to the court about committing the robbery, being satisfied with his attorney and not being threatened. Movant said he did not remember his testimony at the guilty plea hearing concerning his discussions of the case with Mr. Lang or his testimony that he thought his attorney had done all that he could do. He did remember telling the trial court that he was satisfied with his attorney’s advice.

Mr. Lang testified at the evidentiary hearing. He stated that he had been practicing criminal law for fifteen or twenty years, and after reviewing the police report on the movant’s case, and examining the State’s eyewitness at the preliminary hearing, he saw little chance for acquittal. He denied the movant had ever given him names of any witnesses. He testified that he consulted with his client at some length after working out an arrangement with the prosecutor concerning his recommendation to the court. He stated that he had informed movant of both the maximum and minimum potential sentences.

In its memorandum opinion the court found the movant’s testimony at the evi-dentiary hearing “to be unworthy of belief.” The court found that Mr. Lang was never given the names of alibi witnesses, and he rendered effective counsel by pursuing that course of action which his professional judgment led him to believe was best for his client.

Each case of effective assistance of counsel must be determined upon the facts in that case. Thomas v. State, 516 S.W.2d 761, 765[2] (Mo.App.1974). The credibility of the witnesses at a hearing on a 27.26 motion is for the trial court to determine. Crosswhite v. State, 426 S.W.2d 67, 71[2] (Mo.1968). The fact that a defendant has been told by his attorney the maximum legal sentence he could receive does not prove a guilty plea was coerced. Smith v. State, 513 S.W.2d 407, 411[3] (Mo.Banc 1974).

Movant’s testimony at the 27.26 hearing was refuted by trial counsel’s testimony and by movant’s testimony at the guilty plea proceeding. The trial court was within its discretion in disbelieving mov-ant’s testimony at the hearing on his motion. The court found that Attorney Lang did have adequate consultation with his client, he did not fail to contact any known witnesses, and he did not coerce his client to plead guilty. Movant’s allegations in his 27.26 motion were refuted.

The court’s denial of the Rule 27.26 motion is not clearly erroneous and therefore must be affirmed.

WEIER, P. J., and CLEMENS, J., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James L. MINOR, Defendant-Appellant.
    No. 37558.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 8, 1977.
    Rehearing Denied March 15, 1977.

      Huck, Kasten & LaBeaume, Herbert A. Hasten, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals from his conviction of assault with intent to kill with malice. § 559.180 RSMo. 1969. He was found guilty by a jury and was sentenced by the court to twenty-five years in the Missouri Department of Corrections. The allegations of error in the appeal center on the propriety of the submission by the trial court of a “falsus in uno, falsus in omnibus” instruction pertaining to defendant’s testimony and on the trial court’s failure to instruct the jury on the limited consideration to be given to evidence of defendant’s prior convictions. We affirm defendant’s conviction.

The assault was perpetrated in the course of an alleged attempted robbery of a small St. Louis hardware store on January 19, 1972. (Defendant was originally charged in an amended information with attempted robbery, but that count was not tried.) On the day of the incident Sol Mitchell, the store’s owner, was serving customers at the cash register near the entrance of the store when a man identified as the defendant walked up to the counter, displayed a gun, and without speaking fired one shot, striking Mitchell in the abdomen. Mitchell was found unconscious behind the counter when the police arrived a few minutes later.

It was nearly three weeks before Mitchell had sufficiently recovered from the assault to talk with police for any extended period of time. When he was able to meet with the police he was shown a group of fifteen photographs of individuals of the same race and approximately the same age as his assailant. When Mitchell saw defendant’s photograph, which was near the bottom of the stack, he immediately became noticeably physically and emotionally affected. At first he was unable to speak. He then began to cry and to gasp for air. When he regained his composure he identified the photograph of defendant as that of the man who shot him. Mitchell later identified defendant as his assailant in court at trial.

Defendant testified that he was at home watching television with his sister at the time of the shooting; however, the sister did not testify. On cross-examination the following exchange took place precipitating the submission of the credibility instruction in question.

“Q. (by the State) You ever been convicted of a felony?
A. (by defendant) No sir.
Q. You have not?
A. No sir.”

Defendant’s attorney then requested a conference at the bench. He explained that although defendant had been convicted of illegal possession of a barbiturate, technically the conviction was not yet final for purposes of the Habitual Criminal Act, and that he had instructed defendant to deny the conviction. The State explained, however, that it did not seek to admit the prior conviction for purposes of the Habitual Criminal Act but solely to attack defendant’s credibility. After a conference with his counsel defendant resumed his testimony, admitting that he had been previously convicted of illegal possession of a controlled substance.

At the conclusion of the evidence the jury was given, inter alia, the following instruction to which no specific objection was made either at the time of submission or in the motion for a new trial:

“The Court instructs the jury that if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you must disregard such portion of the testimony as you believe to be false, if any, and you are at liberty to reject or disregard all other portions of such witness’s testimony.”

Defendant contends that submission of this instruction constituted prejudicial error because there was no conflict in the evidence sufficient to justify its use. Even if there were sufficient conflict he contends that the instruction was improper, because it authorized the jury to disregard the testimony if defendant had sworn falsely to any fact, not just material facts, and that it authorized the jury to “disregard,” not merely “reject,” all testimony of a witness who gave false testimony. Further, defendant contends that the trial court erred in failing to instruct the jury on the scope of consideration of the evidence of defendant’s prior conviction.

At the outset we note that these allegations of error were raised for the first time on appeal and thus, even though briefed by both parties, were not properly preserved for consideration by this court. Rule 27.20(a) V.A.M.R.; State v. Knox, 529 S.W.2d 455 (Mo.App. 1975); State v. Ward, 518 S.W.2d 333 (Mo.App. 1975). Therefore, our consideration is limited to a determination of whether these alleged errors constitute plain error under Rule 27.20(c) V.A. M.R.; State v. Thomas, 530 S.W.2d 265 (Mo.App. 1975). Relief on the grounds of plain error, however, is available only in exceptional circumstances. It is limited to situations in which the reviewing court is convinced that substantial rights of defendant were affected by clear trial errors resulting in manifest injustice or a miscarriage of justice. Where the guilt of defendant is established by clear and convincing evidence no such injustice will be caused by refusing to invoke the rule. State v. White, 529 S.W.2d 22 (Mo.App. 1975); State v. Winters, 525 S.W.2d 417 (Mo.App. 1975); State v. Murphy, 521 S.W.2d 22 (Mo.App. 1975). In light of the foregoing considerations we find no plain error either in the form of the “falsus in uno, falsus in omnibus” instruction or in the trial court’s failure sua sponte to submit an instruction explaining to the jury the limited consideration to be given impeachment evidence of defendant’s prior conviction.

The “falsus in uno, falsus in omnibus” instruction has been widely criticized, and its use is now forbidden in Missouri Courts. See MAI-CR 2.01 Notes on Use No. 2. At the time of defendant’s trial (September 19, 1972), however, such instruction was proper in the discretion of the trial court where a witness by his testimony attempted to misrepresent or contradict a material fact. State v. Reece, 505 S.W.2d 50 (Mo. 1974); State v. Leigh, 466 S.W.2d 685 (Mo. 1971). In this instance defendant gave contradictory testimony as to his previous felony conviction, a fact bearing on his credibility. Because his only defense, that of alibi, was supported solely by his own testimony his credibility was an especially material fact which could serve as a basis for submitting the contested instruction.

Defendant’s argument that the jury was authorized to disregard his testimony if it was false as to any fact, not merely material facts, clearly misinterprets the plain meaning of the words of the instruction. The court instructed the jury that if they believed any witness had sworn falsely to “any fact or facts material to the issues in this case” then they were to disregard that portion of the testimony they believed to be false. Only by a strained reading of the quoted language could it be construed to contain the defect defendant asserts. When read in context, attributing to the words their plain and ordinary meaning, we find that they properly directed the jury and did not constitute error. State v. Jones, 365 S.W.2d 508 (Mo. 1963).

Defendant’s contention that the contested instruction was erroneous because it gave the jury the liberty to “reject or disregard” the falsely swearing witness’s entire testimony is likewise without merit. Although instructions allowing the jury to “disregard” the witness’s testimony have been held to be error when that term is employed alone, its use in tandem with the term “reject” was expressly approved in State v. Willard, 346 Mo. 773, 143 S.W.2d 1046, 1052-53 (1940). In any event the instruction as given did not constitute plain error.

Finally, defendant contends that even though not requested to do so the trial court erred in failing to instruct the jury on the limited consideration to be given to evidence of defendant’s prior conviction. It is true that refusal by the court on defendant’s request to give such an instruction may be reversible error. Where no request is made, however, the trial court is not required to, but may in its discretion, instruct the jury on this issue. State v. Wing, 455 S.W.2d 457 (Mo. 1970); State v. Matzker, 500 S.W.2d 54 (Mo.App. 1973). We find no abuse of discretion by the trial court in failing to instruct as to any limited consideration to be given to a prior conviction.

Finding no instances of plain error and presented with clear and convincing evidence of defendant’s guilt, we affirm the judgment of the trial court.

KELLY, P. J., and SIMEONE, J., concur.


author: KELLY, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Herbert Hoover GRADY, Defendant-Appellant.
    No. 37084.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 8, 1977.
    Motion for Rehearing or for Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.

      William J. Shaw, Public Defender, David M. Adams, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, Courtney Goodman, Jr., Pros. Atty., Steven H. Goldman, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   KELLY, Presiding Judge.

Herbert Hoover Grady, the appellant, was convicted in a court tried case of possession of a Schedule I controlled substance —heroin—§ 195.017 RSMo. 1969, and sentenced under the Second Offender Act, § 556.280 RSMo. 1969, to twelve and one-half years in the Missouri Department of Corrections. On appeal he raises two points: (1) that the trial court erred in denying his motion to suppress evidence— heroin — seized from his person following what he contends was a search violative of his federal and state constitutional rights against unreasonable searches and seizures and (2) during the course of the trial overruling his objections to the admissibility of heroin he contends was illegally seized from his person following an unlawful search. Because we conclude that in the “concrete factual context” of this case the warrant-less search was incidental to a lawful arrest, we affirm.

As in all search and seizure cases we must first carefully review the facts and the circumstances leading up to the contested search, and in reviewing what is conced-edly a warrantless arrest and search we must be cognizant that every judicial review of such is permeated with the cardinal principle that all warrantless searches, subject to only a few well delineated exceptions, are, per se, constitutionally offensive. State v. Peterson, 525 S.W.2d 599, 603[2] (Mo.App.1975). Although the appellant has the burden of establishing that this search was unreasonable, nevertheless, this being a warrantless search, the burden is on the State to show that it came within one of the established exceptions to the Fourth Amendment warrant requirements to establish that the arresting officer’s acts were, in fact, exempt from the rule that judges or magistrates, rather than police officers, should determine when searches should be permitted and what limitations should be placed on such activities. Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663, 1669 (1948); State v. Witherspoon, 460 S.W.2d 281, 284 (Mo. 1970).

The facts adduced at the hearing on the Motion to Suppress conducted on December 6, 1974, before the same judge who tried the case on the merits, consisted of the testimony of the defendant (as appellant shall be hereinafter referred to) and Bobby Gentry, a police officer of the Richmond Heights, Missouri, Police Department.

The defendant’s testimony, both on direct and cross-examination, is summarized as follows. He had previously been convicted in June, 1952, of five counts of delivery and sale of marijuana, in December, 1961, of two counts of sale of heroin, and at some unspecified time, of “stealing under fifty.” On August 24, 1974, at approximately 2:45 p. m. while driving his 1964 Ford station wagon he was stopped by officers of the Richmond Heights Police Department. At the time he was dressed in a shirt, pants, shoes and socks. When he was stopped he was not shown any search warrant or arrest warrant but he was told that he was stopped because his car fit the description of a station wagon connected with a burglary. His station wagon had both front and rear license plates on it. The two police officers who stopped him asked for his driver’s license and car registration. They did not tell him they had stopped him because he had only one license plate on his car. While the police officers were running a record check he stood and talked with them. A passenger in his car, Mrs. Mildred Bartlett, was wearing “adequate or decent clothes; ” she had on a blouse which zipped up from the back and pants and they were completely on her so that no parts of her person other than her face and arms were exposed. He denied that while he was talking to the police she addressed him as “Scaggs.” He admitted that during that time he had “track marks” on his arm but denied that there was any blood on the “track marks” at that time. He gave the police his correct name. After the police officers completed the record check he was told to lean on the car, put out his arms and spread his legs, and the police officer went into his pockets and emptied everything out of them. In his right front pocket he had a plastic bag containing some capsules and some tinfoil packets containing heroin. Some “currency,” including a fifty dollar bill, in a wad, a red plastic coin purse full of coins and a set of keys were also seized from his person. His pockets didn’t open “in the sense that they was fitting me snug.” In his back pants pocket he had a bottle containing some capsules. He was not arrested until after he had been searched and then he was told that he was arrested for possession of a controlled substance. Prior to the search no arrest for a traffic violation had been discussed; he was told that if he hadn’t been arrested for burglary he could go. The first time that he saw the ticket for having only one license plate was the following day, August 25th.

Officer Gentry testified for the State that he had been a store detective for one year and a police officer four years and two months on the date of the hearing (3 years and 10½ months on the date of the arrest) and that he had some training in controlled substances; that on Saturday, August 24, 1974, at approximately 2:40 p. m. he and his partner, Sergeant Zuecraello, were in a police car at the intersection of Wise and Bellevue when they first observed a car westbound on Wise Avenue with the front license plate missing. They followed the car, stopped it, and the driver alighted from the car and came to the back of the car where they conferred as to why they were stopping him. They told him they were stopping him for having only one license plate on his car. The driver of the car told them his name was Grady and that he’d been arrested once for stealing. At one point in the conversation when defendant was asked where he was going he gave no definite answer. A record check was made and showed that he was not wanted, but that he had an extensive arrest record for numerous felony type crimes, among them, burglary, possession of a controlled substance, and homicide. While he was conversing with the defendant another Richmond Heights police officer, Patrolman Whitener, came up and pointed out to Officer Gentry the “track marks” and blood on the defendant’s right wrist. He also observed that the right front pocket of defendant’s pants appeared to be “bulging from articles.” In the meantime he had observed that the female passenger in the car was only partially dressed. She was wearing a pajama top which was unbuttoned so that it exposed her left breast and her slacks were down below her buttocks. At one point she leaned out the window and called the defendant “Mr. Scaggs.” He felt an “uncertainty” about her. He didn’t talk to her himself; she talked with the Sergeant. Defendant at all times appeared normal and calm.

At this time, after seeing the condition of the woman’s clothing, the officer told the defendant to put his hands on the car so they could search him for their protection. He had the defendant spread-eagle against the car with his arms on top of the car and with his legs back, and while he was in this position he could see into the defendant’s right front pocket where he observed a clear plastic bag containing numerous tinfoil packets. At this time he placed the defendant under arrest for “suspicion of controlled substances.” After placing the defendant under arrest, Officer Gentry began to pat him down in search of a weapon and it was at this point that he observed “numerous articles,” including a hard-tip round cylinder type object in the right front pocket of defendant. He pulled the plastic bag from the pocket and handed it to Patrolman Whitener. He also took some currency and a red plastic change purse with some change in it from the same pocket. On cross-examination, Officer Gentry testified that when asked, the defendant displayed his driver’s license and car registration for his car and the record check showed that the vehicle was not reported stolen and that it had a new license which was not yet on file. He placed the defendant under arrest “for suspect of possession of controlled substance” before searching him. It “wasn’t completely out of his mind that the bulge couldn’t be a hand gun; ” it “could have been a hand gun, a silver revolver.” He described the bulge in defendant’s pocket as a “large bulge.” And he said that all he saw was the bulge in the pocket. When the defendant leaned over, there was a weight in his pocket which caused the pocket to fall forward. The pocket was so full that he couldn’t see what was under the plastic bag with the tinfoil packets in it. A medicine bottle 3½ inches high and 1½ inches in circumference was removed from the pocket. He learned that the defendant and Mrs. Bartlett lived at the same address. She didn’t appear to him to be coherent. Although he didn’t talk with her he could overhear her conversation with Sergeant Zuceraello.

The parties agreed that Patrolman Whitener’s testimony would be cumulative and he did not testify. Sergeant Zuceraello was not called either. At the conclusion of the evidentiary hearing on the Motion to Suppress the trial court overruled the defendant’s Motion. Throughout the hearing, and at the time each side argued the Motion, the record makes it clear that the basis for the trial court’s ruling was the holding in Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and the belief that an “arrest” occurs every time a person is restrained of his liberty, as the trial court found defendant was when he was stopped for the traffic violation here.

Later, on April 10, 1975, the defendant filed a “Waiver of Right to Trial by Jury” and the trial was commended before the same trial judge who had heard the evidence on the Motion to Suppress and overruled same. Officer Gentry was the State’s initial witness and on this occasion he testified that after he and Sergeant Zuc-craello stopped the defendant and advised him that he was being stopped for operating a motor vehicle with only one license plate, they questioned him and ran a record check which came back showing that the defendant had numerous arrests. Because they had observed a fairly large bulge in the defendant’s right front pocket, and the disarray of the female subject inside the car, “we told Grady to place his hands on the side of the vehicle so we could search him . . . ” He also testified that prior to searching the defendant he had noticed track marks on the back of the defendant’s right arm and what looked like a fresh needle mark and blood spots on the back of his right hand which, from his experience, were caused from the use of narcotics of some type. He then described the search and what was recovered from the person of the defendant. On cross-examination Officer Gentry admitted that he did not know that what he had previously described as “blood” on the back of defendant’s right wrist was, in fact, “blood,” nor for how long the “track marks” had been on the defendant’s arm. At no time did the defendant threaten the officers. Officer Gentry further testified that when the defendant’s car was stopped for the traffic violation he and his partner were not looking for the defendant for any offense other than that which they observed, i. e. operating with only one license plate.

Patrolman Whitener testified at the trial on the merits that he came upon the scene within minutes after Sergeant Zuccraello and Officer Gentry stopped the defendant and that in addition to the blood on defendant’s wrist he also observed some blood on his shirt at the scene, in addition to the “track marks.” Other witnesses for the State were a third Richmond Heights Police Officer, Ronald Pfeiffer, and Roger Corcor-an, am employee of the St. Louis County Police Laboratory. Officer Pfeiffer’s testimony was directed to some photographs of the items seized from the defendant when he was searched at the scene and he also supplied some of the links in the chain of evidence. Mr. Corcoran’s testimony was directed to his chemical testing and analysis of the drugs found on the person of the defendant. He testified that the controlled substance found on the defendant totalled 24.08 grams of heroin.

After the conclusion of the trial the defendant was found guilty as charged and sentenced as previously stated hereinabove. This appeal followed.

On appeal the defendant contends that the evidence seized from his person was the fruit of an unreasonable search in violation of both his federal and state constitutional rights because the search was a warrantless search made without probable cause. The State, on the other hand, takes the position that the search followed a lawful arrest, that the evidence seized was the fruit of a search incident to a valid arrest, and therefore was properly admitted into evidence at the trial on the merits.

The alleged arrest and the search incident thereto were concededly without warrant and are therefore per se unreasonable under the Fourth Amendment unless the State can bring them within one of the well delineated exceptions. Katz v. United States, 889 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The crucial question, as the Assistant Attorney General pointed out in his argument in this Court, is: “When was this defendant arrested?”

The trial court, incorrectly we believe, concluded that the stopping of the defendant for operating a motor vehicle with only one license plate displayed in violation of § 301.130(6) RSMo. 1969, without more, authorized a full search of the person of the defendant under authority of Gustafson v. Florida, supra, and United States v. Robinson, supra. A careful reading of both of those cases reveals that in each instance the traffic violator was placed under arrest by the police officer who stopped him prior to the search and that he was orally advised of that fact prior to the search. We find that element absent here. At no time did Officer Gentry testify that he, or any other police officer at the scene, placed the defendant under arrest for the traffic violation prior to searching him. The officer unequivocally testified that he placed the defendant under arrest for “suspicion of controlled substances.” There was never the “custodial arrest” for a traffic violation in this case which furnished the basis for the search incident to a lawful “custodial arrest” in Gustafson and Robinson. In Missouri the issuance of a traffic citation unaccompanied by actual restraint or taking into custody at the scene or elsewhere does not constitute an arrest under § 544.180 RSMo. 1969. Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973). If the defendant was ever arrested for the traffic violation this record is devoid of any such evidence. The only evidence offered by the State was that after he had been arrested on the possession charge and taken to the police station he was issued a summons to answer the traffic charge. This is consistent with Rule 37.09 V.A.M.R. and the fact that the Uniform Traffic Ticket was presented to the clerk of the Magistrate Court of St. Louis County the following day. We believe that in the context of this case it is not necessary to decide whether every time a motorist is stopped for a traffic violation an arrest takes place, because it is common sense that if the defendant attempted to walk away from the police officer making the stop without first being told he might do so, he would certainly be restrained. It is also common knowledge that every time a police officer stops a person for a traffic violation he possesses the discretion to either issue a summons or take him into custody. Rule 37.09 V.A.M.R. The Missouri Uniform Traffic Ticket was adopted with this in mind authorizing the release of the operator upon his promise to appear rather than arresting him. However, until such time as the police officer announces to the person detained which avenue he shall follow, that person cannot ascertain whether he is under custodial arrest and subject to a full blown search, or whether he will be permitted to leave with only a summons to appear at a later date in a traffic court. See: State v. Parker, 378 S.W.2d 274, 281[7] (Mo.App.1964). There is no evidence in this case that prior to Officer Gentry’s announcement to the defendant that he was under arrest on a narcotics charge that there was any intention to place him under custodial arrest for the traffic violation for which he was stopped. In fact, all of the evidence is to the contrary. We hold, therefore, that this search of the defendant cannot be based upon the Gustafson or Robinson exception.

Nor is the evidence here sufficient to bring this search within the exception carved out of the Fourth Amendment protections by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here there are absent the suspicious circumstances which justified the pat down approved there. Officer Gentry had no reason to suspect that he was in imminent danger of being harmed. He expressed no fear of the defendant. The defendant conversed with him calmly, appeared to be normal, produced his driver’s license and registration upon request, and at no time threatened anyone on the scene. The only thing which might have caused the officers some worry was the bulge in the defendant’s pant pocket, but there was no testimony that there was any suspicion it contained a weapon of any kind. Officer Gentry did testify that he did not know whether it was a gun but it was not until after he told the defendant he was under arrest on the possession charge that he made any attempt to conduct a weapons frisk, despite the fact that he had learned the defendant had at one time been arrested for homicile.

To support this contention, the State argues that there was sufficient justification for a Terry frisk because the officers were “dealing with an armed and dangerous user” and by reason of their knowledge of his prior homicide arrest, once having decided to frisk him for weapons, they never carried out the frisk because they saw the tinfoil packets in the plastic bag in “plain view.” The State cites as authority for this position State v. Hawkins, 482 S.W.2d 477 (Mo.1972) and State v. McCrary, 478 S.W.2d 349 (Mo.1972). For reasons hereinafter stated we find neither of these cases governing the facts under the evidence here.

Hawkins, supra, is inapposite because there while one officer was writing up a ticket or summons for a traffic violation the other police officer went to the front of Hawkins’ car to obtain a number from the city sticker affixed to the windshield. While so engaged, that officer shone his flashlight on the windshield to read the city sticker and observed in the beam of the flashlight a hand-rolled cigarette “which he reasonably believed to contain marijuana” from his past experience, on the front seat of the car. Under these circumstances the court held that there was no search because the hand-rolled cigarette was in “plain view.” In this case the plastic bag and its contents were not visible to Officer Gentry until after he had placed the defendant under arrest on the possession charge and had him spread-eagled against his car in obedience to the officer’s directions. Prior to the time the defendant carried out the police officer’s command the contents of the defendant’s pant’s pocket were not in “plain view.” Since, therefore, it was while obeying the police officer’s orders to spread-eagle that the plastic bag and its contents came into view, we conclude that the “plain view” doctrine as announced in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1973) does not apply except if the arrest was based upon probable cause as we shall hereinafter decide.

State v. McCrary, on the other hand, although involving a traffic violation, is inap-posite for the reason that there the defendant, who had been stopped and told he was under arrest for “driving without taillights,” reached for his hip pocket while the arresting officer was writing out a summons or citation. In those circumstances, the officer, alarmed by the possibility that McCrary might be reaching for a weapon, grabbed McCrary’s right arm and handcuffed him. When this was accomplished the officer reached into the defendant’s right rear pocket and extricated therefrom two condoms of white powder which the defendant told him was heroin. Although the defendant was already under a “custodial arrest” for the traffic violation, the police officer then also arrested him for possession of heroin.

The distinguishing feature in McCrary is the custodial arrest for the traffic violation prior to the search and the fear of the police officer that the defendant might be reaching for a weapon. Neither of these elements is present here.

We next turn to the question whether the search of the defendant was incident to a lawful arrest, as the State contends it was. By reason of the fact that we have eliminated the search as incident to a custodial arrest for a traffic violation, the only arrest remaining for consideration is the arrest for suspicion of possession of controlled substances. Whether this arrest justified the search of necessity rests on the question whether at the time Officer Gentry arrested the defendant on the possession charge he had probable cause to make the arrest in the first place.

The State argues he did. The facts and circumstances upon which the State relies for this position are that during the course of the investigation of the traffic violation for which the defendant was stopped, the police officers either learned or observed (1) that the defendant’s reply to their inquiry concerning his arrest record had been less than candid inasmuch as the record check revealed that he had been arrested a number of times on different charges, including several narcotics arrests and one for homicide; (2) the strange actions of his lady passenger, addressing him as “Scaggs” when he gave his identification as “Grady”, and the condition of her attire; (3) the observation of “track marks” on defendant’s right arm and the fresh puncture mark and blood on his right wrist which they believed to be from a fairly recent injection of drugs; (4) the large bulge in defendant’s pocket which “could have been a weapon;” and (5) observation of the plastic bag and its contents of tinfoil packets of the type heroin is usually packaged in as the defendant was spread-eagled against his car.

“Probable cause” for an arrest without a warrant exists where the facts and circumstances within the arresting officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable prudence and caution to form a belief that an offense has been or is being committed. Whether there is justification for probable cause to arrest without a warrant must be determined by practical considerations of everyday life on which reasonable men act and is not to be determined by hindsight by legal technicians. The determination of probable cause for a war-rantless arrest depends upon the particular facts and circumstances of the individual case and no ready “litmus test” can be applied. A broad gulf exists between what is necessary to prove one guilty and the requirement of probable cause for a war-rantless arrest. State v. Wiley, 522 S.W.2d 281, 287[3, 6, 7, 9] (Mo.Banc 1975). Bare suspicion, however, is not enough to support a finding of probable cause for a warrant-less arrest. State v. Goodman, 449 S.W.2d 656, 660[5] (Mo.1970), State v. Whorton, 487 S.W.2d 865, 867[3] (Mo.1972), State v. Hicks, 515 S.W.2d 518, 521[3] (Mo.1974). Nor does the fact that the defendant had been previously arrested or had been previously convicted justify his arrest. State v. Cuezze, 249 S.W.2d 373, 376[3] (Mo.1952), State v. Hicks, supra, l.c. 521[5].

We have found no Missouri case on all points and neither party to this appeal has cited one to us. Our independent research, however, has led us to cases from other jurisdictions which have faced this problem and we have turned to them for guidance.

The Supreme Court of Colorado has considered what evidence is necessary to constitute probable cause to arrest for a narcotics violation in circumstances somewhat similar to those with which Officer Gentry was confronted when he decided to place the defendant under arrest for possession of controlled substances. In People v. Marquez, 183 Colo. 231, 516 P.2d 1134 (banc 1973) the defendant was “detained” following her arrival at a house known to be frequented by heroin users while a search warrant for the premises was in the process of being executed. One of the police officers during the course of her “detention” observed that the was displaying the symptoms of drug use and that she had needle marks on her arms. Her arrest under these circumstances was held to be based upon probable cause and the warrantless search incident thereto held lawful.

In Avalos v. People, 179 Colo. 88, 498 P.2d 1141 (banc 1972) the defendant was stopped because the taillight on her automobile was not functioning. While awaiting a report on the status of her driver’s license, which she had told the police officer had expired, one of the officers noted a fresh needle mark on her right wrist. This same police officer knew the defendant from past encounters with her and also possessed information from a reliable informer as well as a fellow police officer that she was a user of narcotics. Under this factual situation the court held the police officer clearly had probable cause to affect the arrest of the defendant.

And in Stone v. People, 174 Colo. 504, 485 P.2d 495 (banc 1971) an officer who was a narcotics agent learned from an informant that the defendant had been selling and using heroin, had kept a two day surveillance on the defendant when, at the conclusion of the surveillance, he was following the defendant down a one-way street as the defendant parked his car and emerged therefrom and the officer called to him by name to stop. When the defendant stopped at the curb on the other side of the street the police officer pulled his car to that side of the street and asked to see the defendant’s driver’s license. Immediately after making the aforesaid inquiry, but before the defendant could make any response to the officer’s request, the officer noted fresh needle marks on the defendant’s arm and advised him that he was under arrest. A few minutes later a search of the defendant’s car revealed his wallet with a capsule of heroin lying immediately adjacent thereto in the center of the front seat. Holding that this arrest was lawful, the court, l.c. 496[1], said: “There is no question in our minds that the observation of the fresh marks, together with the background information, . . . constituted probable cause for the arrest.”

The California Court of Appeals in People v. Superior Court for County of Sacramento, 17 Cal.App.3d 195, 94 Cal.Rptr. 643 (1971) held an arrest and subsequent search of the defendant’s person did not violate the defendant’s constitutional rights in a mandamus action filed by the State following suppression of evidence seized from the defendant in the Superior Court. There, the police officers went to a hotel room in the course of a narcotics investigation without any intention of arresting the occupant of the room. When the police officers knocked on the door to the room the defendant opened the door after some seconds and the police officers observed that he was exhibiting the symptoms of one who had recently injected heroin, including blood trickling down his arm. Under these circumstances, the Court held that the defendant was observed in the process of committing a crime in the presence of the police officers and the subsequent arrest of the defendant for possession of heroin for sale was supported by probable cause. The trial court was ordered to vacate its order suppressing the evidence seized as an incident to the arrest.

The Pennsylvania Superior Court, in two cases, Commonwealth v. Vassiljev, 218 Pa. Super. 215, 275 A.2d 852 (1971) and Commonwealth v. Garrick, 210 Pa.Super. 124, 232 A.2d 8 (1967) presenting circumstances similar to those present here were reviewed on the question of probable cause for an arrest where puncture marks were observed on the arms of the defendant and led to his arrest. In each case the arrest was held to be without probable cause.

In Commonwealth v. Vassiljev, supra, the defendant was observed with another man passing something between them at nighttime, and as the police officers who observed this transfer between the two men approached in their patrol car both men ran. The police officers stopped the defendant, placed him in the patrol car and conveyed him to the police station. After their arrival at the police station the police officers obtained the narcotics from the defendant, and he was charged with possession of a narcotic drug. According to the evidence, when the police officers first saw the two men they thought a “strong arm robbery” was in progress and that the defendant was the victim. The reasons given by the police officer for picking up the defendant were “for investigation,” because of many complaints of illegal narcotics traffic in the area, and because the defendant told the police officer he was trying to find Conshohocken. There was a conflict in the testimony of the police officer at the suppression hearing with that he subsequently gave at the trial on the merits. In the former hearing he testified that while the defendant was at the police station “a bundle of white powder fell on the floor;” at the latter, that the appellant was arrested for illegal use and possession of narcotics at the station house when the officer observed puncture marks on his arms and that the appellant was searched and the narcotics were found in his left shoe. The Superior Court held that the search could not be justified as a weapons search under Terry v. Ohio, supra, and that there was no probable cause for his arrest when he was placed in the police car. In ruling on the presence of puncture marks on defendant’s arms as probable cause for the arrest, the court said, l.c. 854:

“However, puncture marks on the arm alone would not give probable cause to believe that appellant had narcotics on his person nor would they justify a belief that he was at that time using narcotics.”

The court held that the narcotics found on the defendant at the station house were the product of an unconstitutional search and were not admissible against him at trial.

In Commonwealth v. Garrick, supra, a police officer who had seven years experience in the narcotics section of the Philadelphia police department and a member of the Special Investigations Squad specializing in narcotics was, with another police officer, sent to conduct an investigation of “illegal activities” in a section of the city. While there he observed the defendant walking down the street carrying a television set and acting in an “unusual manner,” and appearing to be under the influence of narcotics. He approached the defendant and observed that “his pupils appeared dilated, and he acted in a trance state, quite calm.” After the defendant was taken into custody an examination of his arms revealed recent puncture marks. A physician who examined him testified that these marks indicated recent injections and that the defendant admitted taking heroin that day. The court held that under these facts the police officer had probable cause to arrest the defendant on a charge of illegal use of narcotics.

In each of these cases where the arrest was held to be based on probable cause there was a thread of information giving the police officer probable cause to believe the defendant was engaged in drug traffic which came to him from some reliable informant or from his own personal knowledge; or, the defendant was observed either to be in the throes of symptomology recognized by the police officer as being associated with the use of a narcotic. In most cases the police officer had specialized training in the field of drugs and was familiar with the symptoms of one under the influence of drugs.

In the instant case Officer Gentry had reliable information by way of the record check that Mr. Grady had previously been arrested on charges related to controlled substances, was obviously a user of drugs as evidenced by the “track marks” observed on Mr. Grady’s right arm and the puncture wound and spot of what appeared to him to be blood on Mr. Grady’s right wrist. His previous experience as a police officer made him knowledgeable of the fact that drugs are often injected into the user’s wrist through a needle, leaving a puncture wound and a small amount of blood. Under these circumstances we cannot say that under the facts and circumstances within Officer Gentry’s knowledge a man of reasonable prudence and caution would not form a belief that an offense involving controlled substances was not being committed. Rather, we conclude that had the officer not placed Mr. Grady under arrest and conducted the search incident thereto to ascertain whether or not an offense had been or was being committed, he would have been derelict in his duties, while it is true, as we have stated, that the mere fact that a person has been arrested or convicted of a crime, standing alone, is not sufficient to support an arrest, we believe the circumstances existing here are.

The judgment of the trial court is affirmed.

SIMEONE and GUNN, JJ., concur.

      . Between the evidentiary hearing on the Motion to Suppress and the date of trial the State filed an Amended Information pleading a prior conviction of the defendant in the Circuit Court of the City of St. Louis on February 11th, 1949, of Grand Larceny; a conviction of a five count sale and delivery of marijuana in the District Court for the Eastern District of Missouri on June 27th, 1952; and a third conviction of a single count of unlawfully selling a narcotic drug and a second count of receiving and concealing a narcotic drug imported into the United States.


text:
    A. E. BIRK & SON PLUMBING & HEATING, INC., et al., Plaintiffs-Respondents, v. MALAN CONSTRUCTION COMPANY et al., Defendants-Appellants.
    No. 37060.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 15, 1977.
    Motion for Rehearing or for Transfer Denied March 15, 1977.

      Spradling, Drusch & Dillard, R. Howard Dillard, Cape Girardeau, for defendants-appellants.
    Finch, Bradshaw, Strom & Steele, Limbaugh, Limbaugh & Russell, Vogel & Frye, Cape Girardeau, for plaintiffs-respondents.
   KELLY, Presiding Judge.

This appeal is from a judgment of the Circuit Court of the Cape Girardeau Court of Common Pleas in favor of A. E. Birk & Sons Plumbing and Heating, Inc., Cape Ready Mix Company, Inc., Riverside West Builders Supply, Inc., and Southern Illinois Stone Company and against Crites and Sail-er Construction Company in connection with the construction of a K-Mart building in Cape Girardeau, Missouri, and the establishment of mechanics’ liens against the property owned by defendant Malan Construction Company. A money judgment was also entered against Crites and Sailer Construction Company in favor of Rose Con, Inc., but Rose Con, Inc. was not awarded a mechanic’s lien against the property. The judgments entered by the trial court, in this court-tried case, were as follows: Riverside West Builders Supply, Inc., $1,365.75; Southern Illinois Stone Company, $26,420.86; A. E. Birk & Sons Plumbing and Heating, Inc., $29,215.59; Cape Ready Mix Company, Inc., $31,704.34 and Rose Con, Inc., $3,399.44. Rose Con, Inc. has not appealed from the judgment denying it a mechanic’s lien and subsequent to the institution of this appeal the mechanic’s lien of Cape Ready Mix Company, Inc. was disposed of by agreement. The judgment against Crites and Sailer Construction Company has not been appealed by that company’s Trustee in Bankruptcy.

The appellants are Malan Construction Company, the owner of the real estate, First National Bank of Minneapolis, Richard Roth, Trustee, the State of California Public Employees Retirement System, S. S. Kresge Company, and the Henry Ross Construction Company, the general contractor on the job. Crites and Sailer Construction Company was a sub-contractor for Ross on this project and the lien claimants were mechanics or materialmen who had worked for or furnished materials to Crites and Sailer Construction Company in connection with the K-Mart project.

At trial it was stipulated by and between the parties that «any recoveries in the case would depend upon the proof of mechanics’ liens, inasmuch as no claim of direct debt was to be made against the property owner.

In order to simplify the trial, the parties also entered into numerous stipulations and agreements leaving for determination by the trial court the following issues with respect to the parties:

A. E. Birk & Sons Plumbing & Heating, Inc.:
(1) was the mechanic’s lien timely filed?
(2) was proper notice of the intent to file mechanic’s lien given as required by law?
Riverside West Builders Supply, Inc.:
(1) was proper notice of intent to file mechanic’s lien given as required by law?
Southern Illinois Stone Company:
(1) did this lien-claimant file a just and true account required by § 429.080 RSMo. 1969, as amended?
(2) was proper notice of intent to file mechanic’s lien given as required by law?
(3) were the charges made reasonable?

One of the stipulations was that the lien-claimants filed mechanic’s lien statements in the office of the Clerk of the Common Pleas Court of Cape Girardeau County on the dates set out:

A. E. Birk & Sons Plumbing & Heating, Inc. — March 15, 1974
Riverside West Builders Supply, Inc. — February 14, 1974
Southern Illinois Stone Company — February 22, 1974

A. E. Birk and Sons Plumbing & Heating, Inc., and the appellants stipulated that the only item of work and materials purported to have been performed on a date which would satisfy the lien filing requirements and render the lien timely filed as of March 15, 1974, was work and materials furnished by the plaintiff on November 16, 1973.

Upon completion of the trial the trial court entered an Order, Judgment and Decree containing extensive findings of fact and conclusions of law in support of its judgment for the parties as previously stated and establishing the mechanics’ liens against the real estate.

On appeal the appellants contend that the judgment of the trial court should be reversed because (1) the property owner, Ma-lan Construction Company, did not receive actual notice of respondents’ intent to file mechanics’ liens, (2) the trial court erred in awarding a decree establishing a mechanic’s lien in favor of Birk (as respondent A. E. Birk & Sons Plumbing & Heating, Inc., shall hereinafter be identified) because the statement of mechanic’s lien was not filed within four months after the account had accrued, and (3) the trial court erred in awarding Southern (as Southern Illinois Stone Company shall hereinafter be identified) a mechanic’s lien for the reason that the tax lien filed by Southern was not a just and true account of the monies due it from Crites and Sailer Construction Company.

Our review of this court-tried case is governed by the principles announced in Murphy v. Carron, 536 S.W.2d 30, 32[1, 3] (Mo. banc 1976) and Rule 73.01 V.A.M.R., and we are required to sustain the judgment of the trial court unless there is no substantial evidence to support the judgment, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. We are also cautioned by Murphy v. Carrón, supra, to exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the decree or judgment is wrong. We find none of the aforementioned infirmities in this judgment and we therefore affirm.

Malan Construction Company’s first contention is that it did not receive actual notice of respondents’ intention to file mechanics’ liens and therefore all three of these liens must fail. This contention is without merit because each of the respondents filed their ten day notice of intent to file mechanic’s lien with the Recorder of Deeds in Cape Girardeau County. §§ 429.-100, 429.110 RSMo. 1969. Malan, the owner of the realty, was a Michigan corporation with no registered agent in Cape Girardeau County, although it did have one in St. Louis. Section 429.110 RSMo. 1969, provides that when the owner of the property sought to be charged with a lien shall not be a resident of Missouri or shall have no agent in the county in which the property sought to be made subject to the lien is situate, the notice prescribed by § 429.100 RSMo. 1969, may be given constructively by filing it with the Recorder of Deeds for the county in which the property is situate. In view of Malan Construction Company’s admission that it had no agent in the county wherein the real property was situate, Cape Girardeau County, notice pursuant to the provisions of § 429.110 RSMo. 1969 was lawful in this instance and respondents’ liens do not fail for lack of notice as the appellant contends.

Whether Birk’s statement of mechanic’s lien was timely filed hinges on whether work performed by Birk on November 16, 1973, in relation to some broken “clean-outs,” was part of the original contract so that the filing of its mechanic’s lien statement on March 15, 1974, complied with the requirement of § 429.080 RSMo. 1969, that the statement be filed within four (4) months of the date on which any indebtedness accrued.

Plaintiff’s evidence on this issue was supported by the testimony of August W. Birk, the President of Birk’s, Elbert Birk, its foreman, interrogatories .of Malan to Birk and Birk’s answers thereto, some of the stipulations, and Plaintiff’s Exhibits 1 and 2, “Work Book” and “Time Sheets,” respectively. The real bone of contention is whether repair of some broken “clean-outs” on November 16, 1973, admittedly some months after what appellants claim was the completion of the contract, was chargeable to Crites’ and Sailer’s account.

The project out of which this litigation arose was the construction of a K-Mart building on property owned by Malan. Ross Construction Company was the general contractor on the project and Crites (as Crites and Sailer Construction Company shall hereinafter be identified) was a subcontractor to Ross (as Ross Construction Company shall hereinafter be identified). Birk, a general plumbing, heating and ventilating contractor, had, prior to this project, performed several jobs for Crites. Loy Crites, of Crites, phoned August Birk, Birk’s president, during the summer of 1973 and told Birk that Crites had the K-Mart job and inquired whether Birk was interested in doing the piping work. Birk replied that the company would. Loy Crites told him that the sewer pipe had already been ordered and that Birk was to order anything else necessary for the job and to back-charge Crites for it. This agreement was not reduced to writing. It was agreed, however, that it would be a “cost-plus” contract. Birk would receive its “going hourly rate” for labor plus a reasonable price for cost of materials it furnished. Both firms had previously done business and this type of contract was not unusual in their prior dealings. Crites knew Birk’s “hourly-rate” and also that Birk would treat Crites fairly on the costs of materials going into the job.

Birk entered upon performance of the agreement, installing the storm and sanitary sewers at the site, and Crites also asked it to install the water mains. Excavations were made, the necessary pipework laid, and the excavations then back-filled. When the work was done Birk also obtained several other contracts on the project, including some with Ross and some with Ma-lan, although none of these were in connection with Grites. Birk commenced work on the project on July 31, 1973, and had men on the job regularly until November 7,1973. The sanitary sewers required “clean-outs” and a “clean-out” was installed every 100 feet of the sanitary sewer line. These “clean-outs” are designed to be “flush” with the finished surface. In some instances the “clean-outs” were installed protruding above the temporary surface and in others flush with that temporary surface. Where they were installed protruding from the surface it was because there was further grading to be done and after the grading black-top would be laid as the final surface and a plug would be put in the opening of each “clean-out”. When those “clean-outs” which were left protruding had been completed the black-top still had not been laid. In all, about ten of these “clean-outs” were left protruding from the surface and each was marked with a red flag. Construction of the sanitary sewer “in the back” had been completed and accepted by the subcontractor and the owner a couple of weeks prior to November 16, 1973, when the foreman of the general contractor — Ross— called Mr. Birk and told him that they were ready to put down the blacktop but that some of the “clean-outs” were out of adjustment and needed attention. After receipt of this call, Mr. Birk inspected the site and observed that the protruding portions of some of the “clean-outs” were broken off and needed repair to adjust their height. Mr. Birk called his foreman and a laborer from another of his jobs and put them to work repairing the broken portions of the “clean-outs.” These repairs took 12 feet of four-inch cast iron soil pipe, which is what the “risers” for the “clean-outs” were made of, put together with some 25 pounds of lead and 2 pounds of oakum. In the opinion of Elbert Birk, the foreman, this repair of the “clean-outs” was necessary for final completion of the job. In repairing these “clean-outs” two hours were spent by each of Birk’s two employees on November 16, 1973, and the labor and material employed in this undertaking was entered on the time sheet of Birk, but the bookkeeper was told not to charge Grites for the labor; nevertheless Grites was charged by the bookkeeper. There was no evidence on the question of who was responsible for damaging these “clean-outs” between the time the work was completed and when the Ross foreman called Mr. Birk, but Mr. Birk sensed that Ross felt that it was Birk’s responsibility to repair these “clean-outs.” Both Mr. Birk and his foreman were certain that none of Birk’s employees had broken the “clean-outs.” Birk admitted that the repairs were done to promote harmony with Ross and Malan for whom Birk was performing several contracts, and that no consultation was had with Grites before repairs to*the “clean-outs” were undertaken.

The trial court resolved this issue in favor of Birk, and we conclude that its holding should not be disturbed. The trial court found that Birk had established a running account with Grites which commenced on July 31,1973, through November 16, 1973; that the repairs to the “clean-outs” were not, as Grites contended, pursuant to a separate contract. A “running account” is a mutual account between a buyer and seller to which charges and credits accrue or are entered as materials are sold or paid for. J. R. Meade Co. v. Forward Construction Company, 526 S.W.2d 21, 32[27, 28] (Mo.App.1975). A running account is deemed an entire contract, and, for the purpose of fixing the time for the filing of the statement of the account to perfect a mechanic’s lien, each item of the account relates to the last item of labor performed and materials delivered. In the absence of any evidence to show a separate and distinct contract as to this last item, the account will be taken and considered as it appears to be, i.e. a running account arising under and by virtue of the contract out of which the contract originally grew. The mere lapse of time between the delivery of the items or the performance of the labor incorporated as items in a contract on a running account is insufficient to commence the running of the periods of limitation barring the lien, nor is it significant that the last item of work may be a small item. J. R. Meade Co. v. Forward Construction Company, supra; Trout’s Investments, Inc. v. Davis, 482 S.W.2d 510, 514[1, 2] (Mo.App. 1972).

We believe, as did the trial court, that perfecting the damaged “clean-outs” constituted a part of the original contract and was essential to make the “clean-outs” completed in a workmanlike manner as required by the terms of the oral contract. In the absence of this work and materials and the replacement of the protruding portions of the “clean-outs” the paving would not have been accomplished in accordance with the plans and specifications and the sewers would have ultimately plugged-up from dirt and gravel. That this work was of an emergency nature is evident from the testimony. In construction of this kind, it is our belief, no subcontract may be said to be completed until the work performed thereunder and the materials installed therein can become integrated into the whole of the completed project, and minor finishing touches such as those involved on November 16,1968, are necessary to achieve that integration into the whole. It cannot be denied that this work was essential for the completion of the project, and was not performed for the mere purpose of preserving a mechanic’s lien, but, rather, was reasonably within the purview of the original contract. General Fire Extinguisher Co. v. Schwartz Bros. Commission Co., 165 Mo. 171, 65 S.W. 818, 323[8] (1901); Badger Lumber Co. v. W. F. Lyons Ice & Power Co., 174 Mo.App. 414, 160 S.W. 49, 52[8] (1913). We rule this point against the appellants.

Appellants’ final contention is that Southern intentionally omitted crediting Grites’ account with substantial payments made and therefore the statement of account filed with Southern’s lien notice was not a just and true account of the monies due it as required by § 429.080 RSMo. 1969. We find that this contention is without merit.

Appellants’ argument in support of this contention revolves around a payment made to Southern by McCarthy Brothers Construction Company in settlement of Southern’s claim against Crites for materials furnished on the construction of the St. Francis Hospital in Cape Girardeau, on which job McCarthy Brothers Construction Company was the general contractor. On May 14, 1974, McCarthy (as that company shall hereinafter be identified) paid to Southern the sum of $7,340.74 in settlement of its lien claim on the St. Francis Hospital project. It was not until May 31, 1974, that this sum was credited to the Crites’ account on the St. Francis Hospital project. It was then ascertained that at that time there was then a balance due on the Crites’ account for the St. Francis Hospital job, after a credit of $815.64 which Southern had agreed with McCarthy to give to the St. Francis Hospital job and a charge to which Crites was entitled for a hauling job for an affiliate company of Southern of $242.50, of only $2,077.45. Thus, Southern had in its possession $6,321.43 more than it was entitled to on the St. Francis Hospital job. Appellants therefore contended in the trial court, and here, that Southern was attempting to “double-charge” Crites this amount and therefore the account as stated at the time the notice of lien was filed was not a just and true account of the monies due.

Respondent Southern takes the position that at the time they filed their notice of lien in this case the statement of account was just and true, and that it was not a prerequisite to a valid lien that the payments be allocated between the accounts immediately upon receipt. It also relies on Herrman v. Daffin, 302 S.W.2d 313 (Mo.App.1957) for the proposition that the Missouri law is that undesignated payments may be applied at the choice of the creditor among the debtors accounts and that where the creditor does not make a designation as to how the allocation between the accounts shall be made, then the payment shall be applied to the oldest unsecured account.

The notice of lien was filed on February 22, 1974, by Southern. This lawsuit was instituted on June 4, 1974, and Southern was named defendant herein. On August 1, 1974, it filed its cross-claim seeking a judgment in an amount of $30,679.76 against Malan, Ross and Crites together with the impressing of a lien on the real estate owned by Malan. On August 30, 1974, Malan and Ross served Interrogatories on Southern. Interrogatory No. 10 inquired whether Southern had received any payment, either by cash or check, concerning the K-Mart building “and appurtenances” for materials furnished, and, if it did, to state the dates and the amounts of the payments as well as the person or corporation from whom the payment or payments were received. Answers to these Interrogatories were filed by Southern over Mr. Buhs’ affidavit (Southern’s General Manager of its Cape Girardeau facilities) on September 20, 1974, stating: “None with respect to the products furnished which form the subject of this suit.”

Subsequently, on November 20, 1974, Southern filed “Amended Answers to Interrogatories” amending the Answer previously given to Interrogatory 10 as follows:

“ANSWER: Yes. On May 14, 1974, Southern Illinois Stone received payment of $7,340.74 from McCarthy Brothers to be applied on Crites & Sailer’s account for the St. Francis Hospital job in furtherance of an agreement to give full credit for an additional $815.64 on that job, which credits were given on May 31, 1974. Southern Illinois Stone had previously applied payments made by Crites & Sailer to that St. Francis job account, however, whereby that job account had a balance of only $2,077.45 on its books. In addition, an affiliate company of Southern Illinois Stone owed Crites & Sailer $242.50 for hauling services and on June 8,1974, Southern Illinois Stone gave credit to Crites & Sailer for that amount. At these times, the K-Mart job was the only unpaid account owing by Crites & Sailer to Southern Illinois Stone, and, therefore, Crites & Sailer should have become entitled to a total credit of $6,321.43 on this account. However, due to an accounting oversight and the handling of this account by its attorneys, such credit entitlement has been overlooked by Southern Illinois Stone until this time. Therefore, there remains due and owing on this account the sum of $24,358.33 plus interest.”

It is apparent that the filing of Southern’s notice of lien occurred prior to the receipt of any payment from McCarthy of any monies in settlement of Southern’s claim against Crites on the St. Francis Hospital job. Therefore, at the time the lien notice was filed the evidence does not refute that the statement of account as of that date for the K-Mart job was not a just and true statement of account as required by § 429.080 RSMo. 1969, as found by the trial court. Furthermore, once it was ascertained that there was an excess over and above the payment by McCarthy, credit of some $6,321.43 was given to Crites by Southern, that being the balance left over from the $7,340.74 paid by McCarthy. To this extent at least Crites got all of the credits it was entitled to, and cannot now be heard to complain.

As Southern argues, it is the settled law in Missouri that where one owes several debts to another and makes payment thereon, the creditor has the right to apply the payments, or any part thereof, as seems proper to the creditor, in the absence of any specific arrangement or designation that the payment shall be credited to either one of the several accounts on which there is a balance remaining unpaid. Upon failure of creditor to exercise his choice, the law will apply the credit on the debt which is older or is unsecured. Scott v. Twin City State Bank, 537 S.W.2d 641, 644[4] (Mo.App.1976); Twellman v. Lindell Trust Company, 534 S.W.2d 83, 95[22] (Mo.App.1976); General Plywood Corp. v. S. R. Brunn Const. Co., 511 S.W.2d 905, 908[2] (Mo.App.1974). This Southern chose to do, as was its right.

A lien account is not vitiated by an unintentional failure to enter all of the credits to which the account is entitled, § 429.210 RSMo. 1969, nor will a lien fail due to a good faith inclusion of a charge which later is proved to have been excessive. J. R. Meade Co. v. Forward Construction Company, supra, 526 S.W.2d 32[3]. There is here no evidence that Southern intentionally failed to credit Crites’ account for any payments received prior or subsequent to the filing of its lien notice. We rule this point against the appellants.

The judgment is affirmed.

SIMEONE and GUNN, JJ., concur.

      . Malan Construction Company had taken a judgment against Crites and Sailer prior to the time this action was brought to trial. That judgment was in part, at least, based upon the amount of all the liens filed in this case. Crites and Sailer was in bankruptcy at the time of this trial.

      . “Clean-outs” were described in evidence as a piece of cast iron pipe running from the trunk sewer line to the surface of the ground providing surface access to the trunk sewer line so that it might be flushed out in case it becomes clogged and plugged up.


author: WEIER, Judge.

text:
    Carolyn LINDSAY, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Respondent.
    No. 38018.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.
    Rehearing Denied March 15, 1977.
    Fred Roth, Clayton, for plaintiff-appellant.
    Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, Robert W. Herr, St. Louis, for defendant-respondent.
   WEIER, Judge.

This is a proceeding under the Missouri Workmen’s Compensation Act in which the claimant-appellant, Carolyn Lindsay, seeks to recover compensation from her self-insured former employer, Ford Motor Company, for injuries suffered by her during an accident on August 29, 1972. The Labor and Industrial Commission, one member dissenting, affirmed the award of the referee granting $100 compensation for a ten-day healing period and $1,300 compensation for 5% permanent partial disability. The circuit court of St. Louis County affirmed the award for the ten-day healing period but reversed the award for permanent partial disability, finding a lack of sufficient competent evidence to support the finding that claimant had sustained permanent partial disability as a result of her accidental injury. Claimant has brought this appeal challenging the propriety of the circuit court’s ruling which set aside the commission’s award for permanent partial disability.

The appropriate standards of review to be applied by a court reviewing an award of the Labor and Industrial Commission are set forth fully in Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 52-53 [1-7] (Mo.App.1975). Under those standards a reviewing court is not to substitute its own judgment on evidence for that of an administrative tribunal and must affirm the administrative findings if based on competent and substantial evidence, leaving the determination of credibility of witnesses to the administrative tribunal. Here the findings of the commission were based upon competent and substantial evidence of accidental injury and disability. They are clearly not contrary to the overwhelming weight of the evidence. We therefore conclude that the award of the commission should be sustained and that an extended opinion would have no precedential value. Rule 84.16(b).

The order of the circuit court affirming the award of $100 compensation for the ten-day healing period is affirmed. That portion of the circuit court’s order reversing the award of $1,300 compensation for permanent partial disability is reversed and the case is remanded to the circuit court with instructions to enter an order affirming the award of the commission in its entirety.

CLEMENS, P. J., and DOWD, J., concur.


text:
    Joseph R. and Frances BEHLMAN et al., Plaintiffs-Respondents, v. CITY OF FLORISSANT, Defendant-Appellant.
    No. 37587.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.

      V. Jack Muehlenkamp, Asst. City Atty., Florissant, for defendant-appellant.
    Carter, Brinker, Doyen & Kovacs, Steven G. Schumaier, Clayton, for plaintiffs-respondents.
   WEIER, Judge.

Owners of six pieces of property on St. Catherine Street in the City of Florissant brought suit against that City for damages because the City raised the grade of the street in front of their premises. Construction work began in August of 1973 and ended in October of 1974. Prior to the commencement of construction each plaintiff received some money for land taken for the widening and in this suit do not claim any further encroachment from the road. Plaintiffs’ evidence indicated that prior to construction their front lawns and driveways had only a slight slope down to the street and they experienced no difficulty with surface water, most of which flowed out to the street. But after the street was raised, rain water no longer flowed out to the street. It remained in puddles on the lawns. Trees and shrubs were lost and some water seeped into basements. Plaintiffs claim these problems as well as difficulty in entering and leaving their driveways, particularly when ice and snow are present, have caused a decrease in the fair market values of their homes for which the City is liable. A jury found for all plaintiffs in amounts varying from $3,100 to $4,800. The defendant City of Florissant appeals. We affirm.

Defendant’s first point relied on states: “The verdict of the jury on all six counts was excessive and against the weight of the evidence.” This point violates Rule 84.04(d) because it fails to “state briefly and concisely what actions or rulings of the court are sought to be reviewed . ” Rule 84.04(d). For this violation of the Rule, defendant’s first point is dismissed. Kellin v. ACF Industries, Inc., 528 S.W.2d 533, 534[1] (Mo.App.1975).

Defendant’s second contention is that the court erred in not granting defendant’s motion for a directed verdict at the close of plaintiffs’ case “on the grounds that the only evidence presented on damages pertained to surface water and driveway ingress and egress which, as a matter of law, should have been found by the court not to be a measure of damage or a factual issue to be decided by the jury upon which an award in damages could be made.” Although Article I, Section 26 of the Constitution of Missouri provides that “private property shall not be taken or damaged for public use without just compensation” (emphasis added), there are several situations where the state may damage private property without compensating the owner. Examples include depreciation in the value of property due to a change in zoning, depreciation resulting from increased traffic noise on a new highway when other people in the neighborhood share the same problem, decrease in the value of property by reason of diversion of traffic away from commercial property, and remote and speculative damages. Defendant here apparently contends that the damages suffered by these plaintiffs are similarly non-com-pensable.

The evidence showed plaintiffs’ property decreased in market value because St. Catherine Street was raised. The increase in the level of the street was from two to four feet. Plaintiffs’ expert appraiser, Michael Buckley, testified that the decline in value was due to lack of buyer appeal and lack of marketability. Buckley and plaintiffs testified that this lack of marketability resulted from problems in draining surface water from the adjacent property, unsightliness and difficulty in entering and leaving the street via plaintiffs’ driveways.

The damages caused by a municipality changing the level of a city street from its natural level to an established grade are compensable. “Under section 21 [now Article I, Section 26], the city can no more alter or change the grade of a street to the damage of a lot abutting upon it without compensation to the owner, than it can take private property for public use without compensation to the owner.” Householder v. City of Kansas, 88 Mo. 488, 494 (1884); see also Lange v. City of Jackson, 440 S.W.2d 758, 762[2] (Mo.App.1969). In a suit by property owners to recover for such damages, the amount thereof is a jury question and if the verdict is supported by substantial evidence, it will not be disturbed on appeal. Melvin v. Mound City, 185 Mo. App. 522, 172 S.W. 482, 483[2] (1914).

The evidence concerning surface water being blocked by the raised street was properly admitted as a compensable element of damage. State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858, 862[6] (1955). As stated in that case, “[w]here land is flooded, or its drainage prevented, by the obstruction of the flow of water, or its diversion from its natural channel, there is, in general, such a taking or injury as entitles the owner to compensation.” Goodson, supra, 281 S.W.2d at 863, quoting 29A C.J.S. Eminent Domain, § 117, p. 471 (emphasis added). See also, Mohesky v. City of Washington, 432 S.W.2d 364, 365-366 (Mo.App.1968) (drainage problems caused by raising a street could be considered by the jury in determining whether plaintiff’s land was damaged.) The cases cited by defendant, Spain v. City of Cape Girardeau, 484 S.W.2d 498 (Mo.App.1972), and Peters v. Shull, 379 S.W.2d 837 (Mo.App.1964) (where it was held that property owners may recover under certain circumstances for damages from water being diverted onto their land by defendants) do not, as defendant contends, preclude property owners from recovering for damages resulting from blockage of previous drainage routes.

Defendant also contends the jury should not have been allowed to consider evidence of the difficulty plaintiffs experienced in entering and leaving their driveways as a compensable element of damages because plaintiffs were not denied reasonable access. Defendant raised this contention in its oral motion for a directed verdict at the close of all the evidence and in its motion for a new trial. However, because there was no objection to this testimony or motion to strike at the time the evidence was introduced, this point is not preserved for appellate review. Dyer v. Globe-Democrat Publishing Co., 378 S.W.2d 570, 581[10] (Mo.1964).

There was substantial evidence of damages to plaintiffs’ property from the change in the level of the street to support the jury’s verdict.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . See generally, Happy, Damnum Absque Injuria: When Private Property May be Damaged Without Compensation in Missouri, 36 Mo.L. Rev. 453 (1971).

      . State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720, 722-724[1] (banc. 1927), appeal dismissed, 278 U.S. 662, 49 S.Ct. 17, 73 L.Ed. 569 (1928).

      . State ex rel. State Highway Commission v. Turk, 366 S.W.2d 420, 421-422[1] (Mo.1963).

      . Kansas City v. Berkshire Lumber Company, 393 S.W.2d 470, 474[2] (Mo.1965).

      . Missouri Power & Light Co. v. Creed, 32 S.W.2d 783, 787-788[7, 14-16] (Mo.App.1930).


author: CLEMENS, Presiding Judge.

text:
    CITY OF ST. LOUIS, Respondent, v. Thomas B. MARTIN, Appellant.
    No. 37938.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 8, 1977.
    Thomas B. Martin, pro se.
    Jack L. Koehr, City Counselor, Judith A. Ronzio, Asst. City Counselor, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant has appealed from a judgment convicting him of driving 45 miles an hour in a 25-mile-an-hour zone. He was fined $25 and costs.

The City’s evidence: On September 26, 1975 St. Louis City police officer Birdsong was operating a VASCAR Unit. He had tested the equipment for accuracy with a stopwatch. He was parked when he saw defendant driving at what he “felt to be a speed exceeding the speed limit.” He activated the VASCAR Unit and after following the proper procedure for VASCAR operation, he obtained an average speed of defendant’s automobile at 45.6 miles an hour in a 25-mile-an-hour zone.

On appeal defendant contends the trial court erred in overruling his motion for judgment because of insufficient evidence. Both parties rely on decisions of our courts dealing with the use of radar evidence in speeding cases. In State v. Graham, 322 S.W.2d 188 (Mo.App.1959), it appeared to the court that the value of radar speedometer tests depended upon the accuracy of the measuring device against which it is checked. The particular testing device itself must be shown to be accurate. City of St. Louis v. Boecker, 370 S.W.2d 731 (Mo.App.1963). In Kansas City v. Hill, 442 S.W.2d 89 (Mo.App.1969) the court agreed with Graham and Boecker. This court recently endorsed the statement in Graham and the holding of Boecker in City of Ballwin v. Collins, 534 S.W.2d 280 (Mo.App.1976), wherein we summarized the conclusion reached in the three preceding eases: “The accuracy of a measuring device must be sufficiently shown before the radar reading is considered accurate.” And, the proponent of the radar evidence has the burden of proving the accuracy of the radar speedometer at the time the accused’s speed was checked. City of St. Louis v. Boecker, supra, l. c. 734.

The present case differs somewhat from those cited in that VASCAR equipment, instead of radar, was used to measure defendant’s speed. VASCAR is an acronym for Visual Average Speed Computer and Recorder. It measures the distance a vehicle travels and the time it takes to travel that distance. An average speed of the vehicle is derived by applying the simple mathematical formula: D Speed = T.

Our research discloses this is the first time the use of VASCAR has been challenged in our courts and has been challenged in only a few courts of other jurisdictions. In People v. Persons, 60 Misc.2d 803, 303 N.Y.S.2d 728 (1969), the court found the key to demonstrating VASCAR accuracy was proof of proper testing. There VASCAR was tested by a stopwatch, the accuracy of which had been tested by WWV, the radio station whose accuracy was universally recognized.

In Tiffin v. Whitmer, 32 Ohio Misc. 169, 290 N.E.2d 198, 200 (1970), the court stated: “Thus, the real issue here is whether, after testing the machine over an accurately measured course by an accurate stopwatch on the day in question, Patrolman Brickner accurately measured the speed of the defendant by use of VASCAR.” In that case the accuracy of the stopwatch was tested by a jeweler using an electronic testing device.

In State v. Schmiede, 118 N.J.Super. 576, 289 A.2d 281, 284 (1972), and State v. Finkle, 128 N.J.Super. 199, 319 A.2d 733 (1974) the proponent of the VASCAR readings had evidence the equipment had been tested and calibrated by stopwatches which had been checked that day for accuracy.

The conclusions reached in those cases, like those in our radar cases, is that the value of the VASCAR evidence depends upon the accuracy of the measuring device against which it is checked, and the particular measuring device must be shown to be accurate. “That is true whether the measuring device used is an automobile speedometer, a stopwatch, or a tuning fork.” City of St. Louis v. Boecker, supra, [3].

Here, the evidence shows the officer drove his car on Highway 40 between the two lines marking off one-half mile, but there is no evidence he performed a test of any kind. He explained he had tested the VASCAR equipment with a stopwatch and that test indicated the VASCAR equipment was accurate. When questioned about the accuracy of the stopwatch, he testified:

“Q. To your knowledge when was the last time that stopwatch had been checked for accuracy?
A. I don’t know the exact date. I would have to check with the log that day, the number on the watch and the radio repair, to check when the last time was for the watch to be checked.
Q. You don’t know whether that stopwatch was accurate on that morning or not do you?
A. No, I do not.”

The City, being the proponent of the VASCAR evidence, had the burden of proving its accuracy. The City failed to meet its burden.

Judgment reversed.

DOWD and WEIER, JJ., concur.

      . The VASCAR Unit computes average speed by measuring a vehicle’s distance and time.