author: DIXON, Judge.

text:
    In Re the MARRIAGE OF John Steven SMITH, Petitioner-Appellant, v. Judith Ellen Smith, Respondent.
    No. KCD 28549.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      George G. Allen, Jr., Niewald, Risjord & Waldeck, Russell D. Jacobson, Kansas City, for petitioner-appellant.
    Bob J. Hiler, Kansas City, for respondent.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

An appeal from an order of the trial court denying the father’s motion for a change of custody of a five-year-old boy. The motion and the evidence taken thereon centered on the health of the child. The father’s contention is that the trial court order is against the weight of the evidence. The trial court order is reversed with directions.

The parties were divorced in October, 1974, and the instant motion was heard in late December, 1975. The father’s motion for a change in custody was based upon an allegation that the health of the child was deteriorating and that the custodian-mother was not providing the child with proper medical care and appropriate food.

The father produced the testimony of a pediatrician, Dr. Hagar, who, at the father’s request, had examined the child about eight days before the hearing. This physician found upon examination an impaction of the bowels. Also produced were the records of a Dr. Garrison who had examined the child August 19, 1974, and September 10, 1974. The August exam disclosed on a complaint of constipation a hard dry stool for which an enema and glycerin suppositories were prescribed. The September, 1974, examination also revealed impaction of the bowels and a diet referred to as “Davidson’s regime” was prescribed. This diet was in evidence and written upon it was the direction to avoid milk in the diet. On the September, 1974, examination by Dr. Garrison, “itchy eyes” were found and medication prescribed. Dr. Hagar found on the December, 1975, examination what he described as swollen nose membranes with backup “causing the blockage of a nasal membrane in the ears which causes hearing loss” which he attributed to allergic reaction. Dr. Hagar testified on the basis of the records and his examination that both the bowel condition and the allergy condition had existed since Dr. Garrison’s 1974 examinations. The child had also been seen in November, 1975, by an associate of Dr. Hagar’s, a Dr. Bare. Dr. Bare had prescribed a laxative in November. Dr. Hagar testified that if the medicine prescribed by Dr. Bare had been utilized, the conditions he found in December would not have existed. Dr. Hagar’s opinion was that the ultimate result of chronic constipation would be to make the child laxative dependent. He was further of the opinion that the child should be allergy tested when the bowel problem had subsided. The mother produced a letter from a Dr. Kantor which stated that the child had been seen since birth and had been found to be “a healthy normal youngster.” Testimony disclosed that the mother had not mentioned a bowel problem nor an eye problem and that Dr. Kantor had seen the child last in June, 1975. Dr. Kantor’s records showed he had seen the child three times in 1970, the year of birth, once in 1971, and once in June, 1972. On the 1975 visit three years later, the record reveals only an oral polio immunization, and some laboratory tests. No record of the results of a physical examination was offered.

The mother admitted she knew of the early diet, but denied she was advised of a November, 1975, diet. She further denied she had been given the laxative prescribed in November. She denied the child had any bowel difficulty since a few months subsequent to the divorce. She said she knew he was not to receive milk but disagreed with that dietary regime. She denied that he had bowel impaction as testified to by Dr. Hagar as having been discoverable by palpation on the November, and December, 1975, examinations. Other members of the wife’s immediate family and friends either denied knowledge of the bowel problems or their existence.

There was a considerable amount of contention between the parties as to other matters, but they need not be detailed as they do not bear upon the issue which is controlling on this appeal.

The review in this appeal is governed by the standards of review enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The relevant portion of that standard in the light of the issue raised is that portion of Murphy v. Carron which permits reversal of the trial court ruling when it is against the weight of the evidence, such power to set aside a ruling as against the weight of the evidence to be exercised with caution and with a firm belief that the ruling is wrong.

So considered, the trial court’s ruling on the motion is wrong. This because the trial court had to find against the husband’s contention that the child’s health had deteriorated and that the mother was not affording him proper health care and the dietary regime prescribed in 1974. Such a finding would fly in the face of the uncon-tradicted testimony of Dr. Hagar on the results of his physical examination as well as the record evidence of two other physicians making similar physical findings. The generalized statement of Dr. Kantor without evidence of a detailed physical examination and the relevant history cannot be said to contradict the other medical evidence. The mother’s denial of the existence of a physical condition found by three physicians is entitled to little or no weight.

Having concluded the ruling on the motion is in error on the present record, it must be reversed. The record, however, does not permit this court to determine what is in the best interest of this child at this time. Over a year has passed since the motion was heard. There is nothing to indicate the present health of the child other than the husband’s plea at trial and in this court that the child’s physical health be determined objectively.

It is, therefore, directed that this cause be remanded for further proceedings and that the trial court order an examination of the child by an appropriate medical facility selected by the court. The costs of such an examination are to be taxed to the husband. Upon receipt of a report of this examination, the trial court shall provide an opportunity to the parties to supplement the present record with additional testimony and make such ruling upon the motion as then appears in the best interest of the child.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Marshall LACY, Appellant.
    No. KCD 28561.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

Defendant was convicted by jury of first degree robbery and sentenced to seven years imprisonment.

His sole point of error on appeal is that the trial court should have declared a mistrial, as requested, because of allegedly prejudicial statements made by the prosecuting attorney during closing argument.

A short statement of facts will suffice because the sufficiency of the state’s evidence to support the conviction has not been questioned in defendant’s brief. Bernard Davis, the victim of the robbery, was employed by the Jet TV & Stereo Rental Company as a bill collector and delivery man. During the course of his employment on March 15,1975, he went to an apartment building in Kansas City, Missouri, to pick up an amplifier. When Davis entered the apartment building he noticed two men standing by the front door. Davis recognized one of the men (the defendant) because he had worked with him in the summer of 1974 at a lawn service company. Defendant and his companion were still standing by the front door of the apartment building when Davis left with the amplifier. As Davis was loading the amplifier into his delivery van the two men approached him from the rear. Defendant pointed a revolver at Davis and told him to lie down in the back of the van. Defendant’s companion then tied Davis’ hands and put a blanket over his head. Defendant then drove the van to an alley located approximately twelve blocks from the apartment building where approximately $150.00 was taken from Davis and a television set and the amplifier were taken from the delivery van. After the men left, Davis untied himself and called the police. Davis positively identified defendant as one of his assailants at a pre-trial lineup, and also at trial. Defendant and Davis are both black men.

The vortical portion of the state’s closing argument is hereinafter quoted: “You alone determine the guilt or innocence of people. You alone have it within your power, based upon the break that the police got in this case in that man robbed a victim who knew him. You have within your power to bring from an unsolved strong-armed robbery a verdict of guilty. You have within your power, based upon the evidence presented, you have within your power to take a step toward eliminating crime here. A member of the black community has stepped forward and, I believe, at some personal concern and risk and said, yes, that’s the man.” Defense counsel’s objection to this portion of the state’s closing argument was sustained by the trial court. Defense counsel also requested the trial court to instruct the jury to disregard this portion of the state’s closing argument and the trial court did so. Defense counsel then moved for a mistrial which was denied by the trial court.

A trial court has considerable discretion in monitoring the tone and content of closing arguments to the jury and an abuse of discretion must be shown before an appellate court will reverse a conviction and sentence for allegedly improper closing argument. State v. Wright, 515 S.W.2d 421, 432 (Mo. banc 1974); State v. Jewell, 473 S.W.2d 734, 741 (Mo.1971); and State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970). Declaration of a mistrial for improper closing argument is peculiarly within the discretion of the trial court and should be reserved for those extraordinary situations where overtones of prejudice cannot be dissipated by any other means. State v. Phelps, 478 S.W.2d 304, 308 (Mo.1972); and State v. Tate, 468 S.W.2d 646, 651 (Mo.1971). Concomitantly, every instance of improper argument by a prosecutor does not call for the drastic remedy of declaring a mistrial. State v. Barron, 465 S.W.2d 523, 528 (Mo.1971); State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970); and State v. Neal, 526 S.W.2d 898, 903 (Mo.App.1975).

Defense counsel argued below that the state’s remark suggested to the jury that Davis exposed himself to the danger of retaliation at the hands of defendant because he testified against him. On appeal defendant contends the court abused its discretion in refusing to declare a mistrial because the state’s closing argument raised the possibility of juror hostility against defendant by implying that defendant would cause physical harm to Davis if the defendant was acquitted. Thus, the focal point of defendant’s argument is narrowed to the following portion of the state’s closing argument: “A member of the black community has stepped forward and, I believe, at some personal concern and risk, and said, yes, that’s the man.” Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), comes to the forefront of the cadre of cases which are relied upon to resolve this appeal. Therein, the Supreme Court of the United States, 416 U.S. at 646-47, 94 S.Ct. at 1873, pragmatically observed: “Isolated passages of a proseeutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” (Emphasis added.)

State v. McFadden, 530 S.W.2d 440, 443 (Mo.App.1975), is closely analogous to the instant case. In McFadden the prosecutor during closing argument in a first degree robbery trial stated: “It took courage for these witnesses to come in and testify to you, because once this trial is over, they will have to be out on the streets again.” Defense counsel objected and moved for a mistrial on the ground that the prosecutor’s remark inferred that the accused would harm the witnesses because they testified against him. The trial court sustained the objection but refused to declare a mistrial. The trial court’s refusal to declare a mistrial was vindicated on appeal by the following rationale: “In its context, the latter portion of the argument in question was, as recognized by the trial court, susceptible to interpretations other than those made by defendant . . . . In such circumstances, the trial court is not shown to have abused its discretion by refusing to declare a mistrial, a remedy reserved for application in extraordinary circumstances.” See also: State v. Johnson, 539 S.W.2d 493, 512-13 (Mo.App.1976); and State v. Robbins, 507 S.W.2d 662, 663 (Mo.App.1974).

In the instant case the crux of the prose-cutorial remark complained of is that state’s witness Davis gave his testimony “at some personal concern and risk”. Chronologically, it followed an earlier statement made by the prosecutor to which no objection was lodged: “If he doesn’t honest to God believe that Marshall Lacy did this robbery, if he didn’t honest to God believe this is the boy that worked with him at that lawn maintenance company, what reason on earth would he have to come down here and tell you, that’s the guy? You can bet your boots it’s not making him any more popular in his community.” When the remark under attack is read in context with that portion of the state’s closing argument heretofore referred to, the jury could have reasonably inferred that any “personal concern and risk” attached to Davis’ testimony stemmed from the black community at large and was devoid of any personal reference to the defendant. As the prosecutor’s remark was susceptible of more than one interpretation or meaning, this court will not second-guess the trial court and “lightly” infer that the jury seized it out of context and gave it the onerous meaning attributed by defendant.

There is another aspect of defendant’s point on appeal which would immunize the trial court’s refusal to declare a mistrial from being branded as an abuse of discretion. The complained of remark occurred during the final stage of the prosecutor’s closing argument and followed defense counsel’s closing argument. During the latter’s closing argument the following statement was made to the jury: “Well, let me suggest to you another scenario, a scenario made possible by the fact that Barnard [sic] Davis is completely unsupported by the testimony of anyone else and that is perhaps, Mr. Bernard Davis took this stuff himself. Perhaps he took that stereo receiver, perhaps took the money, perhaps he took the television set that was inside the van.” In State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (banc 1950), the court held that “[w]here the argument complained of on appeal is retaliatory in nature and invited by the remarks and suggestions of appellant’s counsel an assignment of error thereon will not be sustained.” In so holding, the court recognized that a prosecutor “can go further by way of retaliation, in answering arguments of the defendant’s counsel, than he would be authorized to do in the first instance.” In other words, a trial court is vested with considerable discretion in permitting the use of retaliatory arguments and in refusing to declare mistrials based thereon. State v. Smith, 431 S.W.2d 74, 85 (Mo.1968); State v. Cusumano, 372 S.W.2d 860, 866 (Mo.1963); and State v. Knighton, 518 S.W.2d 674, 681 (Mo.App.1975).

As the allegedly prejudicial remark was an isolated occurrence, was susceptible of a meaning other than that ascribed to it by defendant, and could be deemed provoked by defense counsel and therefore retaliatory in nature, it cannot be said that the trial court abused its discretion in refusing to declare a mistrial.

One other matter demands mention before this opinion is concluded. After this case was fully briefed on appeal, defendant, acting pro se, filed a letter in this court to which was attached an affidavit purportedly executed by state’s witness Davis and acknowledged before a notary public. The thrust of the affidavit being that Davis perjured himself at defendant’s trial in that his identification of defendant as the perpetrator of the crime was totally false. The referred to affidavit is dehors the record and cannot be considered on this appeal. State v. Overby, 432 S.W.2d 277, 279 (Mo.1968); State v. Brown, 386 S.W.2d 390, 391 (Mo.1965); State v. Caffey, 365 S.W.2d 607, 609 (Mo.1963); and State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 339 (banc 1956) cert. denied 352 U.S. 976, 77 S.Ct. 367, 1 L.Ed.2d 326 (1957). However, it raises serious implications which cut two ways. If true and authentic, defense counsel should pursue it by way of a Rule 27.26 motion. If false and contrived, the state should pursue the matter by appropriate action. This court is in no position to presently pass judgment on the validity and authenticity of the referred to affidavit. Notwithstanding this fact, this court reemphasizes that serious implications arise if it be true and authentic, and equally serious implications arise if it be false and contrived. For these reasons, counsel for both the state and the defendant are requested to peruse the referred to affidavit in the files of this court and respectively determine their appropriate course of action.

Judgment affirmed.

All concur.

      . A habeas corpus proceeding instituted by a state prisoner.


author: WASSERSTROM, Presiding Judge. .

text:
    Charles C. TEANEY, by his next friend, Minnie F. Eggleston, Appellant, v. CITY OF ST. JOSEPH, Missouri, Respondent.
    No. KCD28562.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Robert D. Colley, St. Joseph, for appellant.
    Gary A. Fenner, St. Joseph, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge. .

This suit was brought by Charles C. Tea-ney, a minor, for personal injuries suffered by him, and by his mother for loss to her of his services. Only the claim for personal injuries was submitted to the jury, and that resulted in a verdict for defendant.

On this appeal, plaintiff presents the following points: (1) that the court submitted an improper instruction on contributory negligence; (2) that the court failed to properly define the standard of care required of the minor plaintiff; and (3) that the court erred in giving an additional instruction in response to a jury request after the jury had retired for its deliberations. We reverse on the last of these points.

The injuries in question occurred in Pryor Park, a public park in St. Joseph, Missouri. The City had erected a martin house consisting of a bird house on a metal pole approximately 15 feet in height. After being in place only a short time, the pole was knocked down and it, along with the bird house, disappeared. After the pole was broken, approximately 3 or 4 inches of the metal post protruded from the ground where it was set in a large concrete base of about 500 pounds.

About a week after the bird house had been torn down, plaintiff was playing football in Pryor Park with three other boys. One of the other boys kicked an onside kiek, plaintiff dove for the football and his knee skidded across the metal post protruding from the ground, thereby causing serious injuries to his leg and knee.

Plaintiff submitted his case to the jury under the following verdict director, Instruction No. 3:

“Your verdict must be for the plaintiff if you believe:
First, there was a metal pole extending from the ground within the public park and as a result the park was not reasonably safe for its users, and
Second, plaintiff did not know at the time of the occurrence and by using ordinary care could not have known of this condition, and
Third, defendant knew or by using ordinary care could have known of this condition, and
Fourth, defendant failed to use ordinary care to remove it, and
Fifth, as a direct result of such failure, plaintiff was injured unless you believe plaintiff is not entitled to recover by reason of Instruction No. 6 .”

After the jury had retired to the jury room for deliberation, it sent the following written message to the trial judge:

“First, in Instruction No. 3—
Does the Jury have to believe all five of the provisions — We can agree on part of them but not all five—
/s/ Delmas Farris. Foreman”

After oral argument by the attorneys and over the objections of both parties, the court wrote the following on the bottom of the same sheet of paper and handed it back to the bailiff to give to the jury.

“I suggest that you reread Instruction # 3 and note the word ‘and’ at the end of each of the first four propositions.
/s/ Frank D. Connett, Jr.
P.S. I also suggest that you reread Instruction # 2.
/s/ F.C.”

Instruction No. 2, so referred to by Judge Connett, was as follows:

“In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant. The burden is upon the defendant to cause you to believe the propositions necessary to support its defense that plaintiff was contributorily negligent as submitted in Instruction No. 6 . If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.”

By giving the additional instruction in response to the jury’s request after it had retired, the trial court ran afoul of the rule announced in Houston v. Northup, 460 S.W.2d 572 (Mo. banc 1970). In that case the plaintiff had submitted his claim for personal injuries on both affirmative negligence and also humanitarian negligence. After the jury had retired for deliberation it sent a message to the court saying that it found the instructions to be in apparent conflict and requested clarification. The trial court undertook to explain to the jury that each instruction related to a different theory of recovery and that there existed no conflict between them. The Missouri Supreme Court en banc found this to be reversible error, holding in this respect as follows:

“The jury foreman’s note raised a question whether Instructions 6 and 7 conflicted, but the judge could have told the jury that in his opinion the instructions given were proper and all he could give them, and that they should go back and read them again. The instructions given were clear and understandable. No contention to the contrary is asserted, and the experience of several years use of these instructions further so indicates. It was not necessary to give an additional instruction for the purpose of explaining or clarifying the instructions previously given.
“Implicit in a scheme of approved pattern instructions such as MAI is the central idea that such instructions do not require further clarification or amplification. They submit ultimate issues and dp so adequately. Consequently, we have held in cases such as Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255, and Murphy v. Land, Mo., 420 S.W.2d 505, that change in the prescribed language other than the authorized modifications is not permissible and constitutes error. Necessarily, it also follows that it is not permissible to modify or enlarge or change or explain MAI instructions by separate instructions not provided for or authorized in MAI. To permit modification, clarification or improvement by separate instructions would be just as objectionable as doing so within the body of the prescribed instructions. If plaintiff had tendered Instruction No. 18 at the outset, to be given along with Instructions 4, 6, 7 and 8, it is perfectly clear that the court should have refused it under the doctrine of Brown v. St. Louis Public Service Company, Murphy v. Land, and similar cases. If the instruction was not proper or permissible then, it likewise was not permissible or authorized when given. MAI makes no provision for, and does not authorize or contemplate that trial judges will devise additional instructions seeking to explain or amplify instructions which conform to MAI.” (footnotes omitted)

Likewise here, it was not permissible for the trial court to attempt to clarify the instructions upon which the case had been submitted and which fully met the standards of MAI. The attempt by the court to do so clearly constituted error.

However, Houston v. Northup also holds that the commission of this error does not produce “a situation wherein prejudice is presumed, pursuant to Brown v. St. Louis Public Service Co., 421 S.W.2d 255, l. c. 259.” The question therefore remains for inquiry: Did the trial court’s error here prejudice plaintiff?

Of crucial importance in answering that question is the fact that the jury’s question to the trial judge related only to the necessity of finding all of the five elements set forth in Instruction No. 3. Especially to be noted is the fact that the jury made no inquiry relating to the burden of proof.

The question that the jury did ask had already been fully covered by Instruction No. 3, and it is difficult to understand why the jury was in doubt as to whether it had to find all of the elements set forth. Considering the lack of ambiguity in Instruction No. 3, it should have been sufficient for the trial judge to simply follow the recommendation of the Bench Book for Missouri Trial Judges, § 14.82, where it is suggested that in this type of situation the court respond to the jury’s communication substantially as follows:

“LADIES AND GENTLEMEN: The law requires the court to instruct the jury in writing at the conclusions of the case. The court’s instructions _ through _contain all the law which you require for reaching a verdict. I am unable to give you further instructions. Please return to the jury room, review the court’s instructions, and see whether you are able to reach a verdict.”

Not only did the trial court here go beyond the recommendation quoted, and not even content with just calling attention to the conjunctive form of the requirements set forth in Instruction No. 3, the court went still further by calling special attention to Instruction No. 2. By so doing, he interjected a new note on an aspect as to which the jury had made no inquiry. The court’s superfluous reference to Instruction No. 2 had the necessary effect of placing stressful emphasis upon the plaintiff’s burden of proof and could very well have been considered by the jury as a veiled comment by the judge as to the weight of the evidence.

The note to the judge from the jury foreman demonstrates that just before that note was dispatched, the jury had not reached a verdict. The record shows that after the judge’s reply was received, a verdict was reached. To what extent that was produced by the “clarifying” instruction cannot be known with precision. However, it reasonably can be said that the additional instruction had a tendency to and could have contributed to that result, particularly in view of the well known respect and deference given by jurors to any indication or suggestion by the trial judge who dominates the trial proceedings and who assumes a figure of imposing stature in the eyes of the jury.

Circumstances such as these showing a reasonable probability of prejudice suffices, without the necessity of demonstrating to a point of certainty that the error influenced the verdict. This harmonizes with the general principle governing the determination of the prejudicial nature of error, as set forth in Conaghan v. Dean, 96 S.W.2d 924 (Mo.App.1936): “We hold that, in the face of unquestioned error, and in the absence of any showing that such error was not harmful to appellants, and our being unable to say that it was not prejudicial, the cause should be reversed and remanded.”

Because of the error in giving the “clarifying” instruction, this case must be reversed and remanded for a new trial. The other two instruction matters complained of are not likely to recur on retrial and therefore need not be discussed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles PAGE, Appellant.
    No. KCD 28617.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The defendant was convicted by a jury for assault with intent to rob with malice aforethought [§ 559.180, RSMo 1969] and was sentenced to a term of four years.

There is no dispute that the evidence was not sufficient to convict, so a brief statement of facts suffices. The victim was on his way to an accustomed cafe for breakfast when he was accosted by three men, among them the defendant. They asked the victim for a cigarette, and when he offered them some tobacco, they set upon him and cut him severely about the face with a knife. The victim identified the defendant as the assailant who wielded the knife. At the time the defendant was arrested, his shirt was stained with blood, as was a white cloth wrapped around his right hand. A small pocket knife taken from his person was also stained with a moist, red substance.

The contention on appeal claims error in the admission of the knife into evidence over the objection of defendant on the ground that the weapon was not sufficiently connected to the crime. The court received the exhibit into evidence after the police officer who wrested the knife from the defendant testified, “This appears to be the knife that was taken out of defendant’s pocket.” The defendant complains that this qualified identification does not allow an inference that the knife was the weapon taken from the defendant.

Objects which meet the tests of relevancy, materiality and probative force, may be submitted to the senses of the jury as evidence. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299[6] (1944). Thus, a weapon connected with the defendant or the crime, when sufficiently identified, tends to prove guilt. State v. Greathouse, 519 S.W.2d 299, 301[7, 8] (Mo.App.1975). Within these general principles, a weapon found in the possession of the accused, although not identified as the instrument used but similar in form and character, shows that the defendant had the means to commit the crime in the manner it was shown to have been done and is admissible for that purpose. State v. Cuckovich, 485 S.W.2d 16, 23[12] (Mo. banc 1972).

The evidence was that the defendant had cut the victim with a knife; the defendant was arrested near the scene just after the crime was consummated; the knife was found on his person with the blade still moist and red. These proved circumstances allowed the admission of the knife in evidence to show that the means to commit the crime in the manner shown was available to the defendant.

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Nancey WARRINER, as next friend of Bradley Alan Warriner, Appellant, v. The HOLMESWOOD BAPTIST CHURCH of KANSAS CITY, MISSOURI, Respondent.
    No. KCD 28638.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Roger W. Penner, Howard D. Lay, Reed-er, Griffin, Dysart, Taylor & Penner, P.C., Kansas City, for appellant.
    Steven G. Emerson, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before'^SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment dismissing plaintiff’s petition on grounds of failure to state claim upon which relief may be granted.

Nancey Warriner, as next friend of Bradley Alan Warriner, and Nancey Warriner, in her own behalf, filed suit against The Holmeswood Baptist Church of Kansas City, a religious corporation. The claim on behalf of Bradley, a minor, sought recovery of damages of $250,000 for injuries sustained by him. Nancey’s claim, in Count II, sought recovery of $10,500, for costs incurred by her as Bradley’s mother, in the care of her son. Both claims were based upon the following allegations of plaintiff’s second amended petition:

“1. That Plaintiff is a resident of Kansas City, Jackson County, Missouri and that Defendant is a not-for-profit corporation duly organized under the laws of the State of Missouri.

“2. That Defendant owns and operates a day care center in which it undertakes to provide and holds itself out to the public as providing child care and nursery services for two and three-year-old minor children in Kansas City, Jackson County, Missouri.

“3. That some months prior to March 26, 1974, the Defendant accepted responsibility for and undertook to provide nursery services and care of BRADLEY ALAN WAR-RINER, for which services Defendant charged Plaintiff.

“4. On or about March 26, 1974, BRADLEY ALAN WARRINER, while in the exclusive control and custody of the Defendant sustained an injury to his eye, causing serious injury to BRADLEY ALAN WAR-RINER. The Defendant stated to Bradley’s mother ‘we weren’t sure how, but his eye had been hurt in some fashion.’

“5. (a) Said injury to BRADLEY ALAN WARRINER would not have occurred if Defendant had used due care and said injury was an unusual event and would not have occurred but for the Defendant’s negligence.

“(b) The premises and all persons present were in the exclusive control of Defendant.

“(c) The Defendant and its employees had superior knowledge and information as to what caused the occurrence because of their duty to supervise and control very young children.”

Defendant’s motion to dismiss for failure to state a claim upon which relief may be granted was sustained by the trial court. Plaintiff appealed.

In this court, appellant contends that the trial court’s dismissal of petition was erroneous because the petition “sets forth the elements of res ipsa loquitur * * * in almost the exact words * * * ” of the description of the doctrine found in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559[2] (banc 1932), as follows:

“In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instru-mentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.”

In Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 661[8-10] (Mo.1974), the court stated:

“Plaintiff’s petition is premised on the res ipsa loquitur doctrine. In general, the doctrine of res ipsa loquitur has no application to the pleadings, but is an inference aiding the proof, Carter v. Skelly Oil Co., 363 Mo. 570, 252 S.W.2d 306 (1952); 65A C.J.S. Negligence § 220.23, p. 606. However, general allegations of negligence certainly do not preclude reliance upon res ipsa loquitur, Jarboe v. Kansas City Public Service Co., 359 Mo. 8, 220 S.W.2d 27, 31 (1949). Negligence is an ultimate fact which may be pleaded as such and the law does not require the impossible, Maybach v. Falstaff Brewing Corporation, 359 Mo. 446, 222 S.W.2d 87 (1949).”

In Leeper v. National Lead Co., 42 F.Supp. 121, 122[3] (U.S.D.C., E.D., Mo.1941), the court stated:

“ * * * [W]hen the general statement (or legal conclusion as it is sometimes characterized) that it was defendant’s negligence which caused the injury is predicated upon the application of the res ipsa doctrine, instead of specific acts of negligence, the facts which give rise to the application of this doctrine should be alleged.”

The essence of the res ipsa doctrine is the occurrence of an injury or damage causing event which permits the inference that the occurrence was occasioned by the negligence of the party who was in control of the instrumentality which precipitated the occurrence and who has superior knowledge or means of knowledge of its cause. 2 Restatement of Torts (2d) § 328 D, pp. 156-166 (1965). It is the “occurrence” not the injury which speaks for itself as negligence. Shafer v. Southwestern Bell Telephone Company, 295 S.W.2d 109, 114 (Mo.1956).

In this case the petition does not allege what occurred which resulted in the injury to Bradley’s eye. It alleges simply that the injury was an “unusual event and would not have occurred but for the Defendant’s negligence.” Such a pleading in no manner informs the defendant of what act or occurrence for which it was responsible is relied upon as the basis for an inference of negligence on its part. It in no manner states the facts which give rise to the application of the res ipsa doctrine. Negligence may be charged generally in a petition based upon res ipsa but it must be predicated upon some act for which the defendant is responsible and which is peculiarly within his knowledge. Plato Reorganized School District v. Intercounty Electric Co-op., 425 S.W.2d 914, 918-919[2, 3] (Mo.1968). No act or occurrence of such nature is laid to defendant by the petition in this case.

Appellant argues that when the cause of an injury is in doubt, plaintiff is entitled to use res ipsa, citing LoBello v. Laclede Gas Co., 517 S.W.2d 474 (Mo.App.1974). Res ipsa does excuse a plaintiff from proof of the exact cause of the injury-producing occurrence, but it does not avoid the necessity of allegation and proof of an occurrence from which the inference of negligence is to arise.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    In re the MARRIAGE OF L_, Petitioner-Respondent, and L_, Respondent-Appellant.
    No. 28646.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Douglas J. Patterson, Kansas City, for respondent-appellant.
    Sevier & Burnett, Roger Guy Burnett, Liberty, for petitioner-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

The husband takes issue with the decree entered in a dissolution of marriage proceeding. His grounds for doing so are two in number: (1) “The Trial Court Erred in Granting Care, Custody and Control of the Parties’ Minor Children to . [the wife] . . . When All Relevant Factors Involved in a Child Custody Issue Including but Not Limited to § 452.375 R.S.Mo. Dictate that . . . [the husband] . is the Proper Custodial Parent”; and (2) “The Award of Maintenance to Petitioner . [the wife] . . . was Unreasonable, Unwarranted and Unjustified in Light of the Provisions of § 452.335 R.S.Mo. (Supp.1973).”

The wife moved for dismissal of the husband’s appeal because his brief failed to contain a “fair and concise statement of the facts relevant to the questions presented for determination” and the “points relied on” failed to set forth “wherein and why” the decree was claimed to be erroneous, all as required by Rule 84.04(c), (d). There is merit to every facet of the wife’s motion to dismiss the husband’s appeal. This court would dismiss the husband’s appeal for noncompliance with Rule 84.04, supra, were it not for the fact that custody of minor children is involved. In fairness to them, the imperfectly tendered issues will be reviewed.

Two minor children, a daughter, age 13, and a son, age 9, are the subject of conflicting custody claims of the parents. The trial court was faced with an onerous task in deciding which parent should be awarded custody. This case points up the truth of the old adage that “hard facts make hard cases”. Each parent charged the other with various acts of moral unfitness as grounds for advancing his or her claim for custody of the minor children. The evidence in many respects is sordid in nature. However, sensationalism should be avoided in judicial opinions whenever possible; particularly so in a case such as this where indulging in it would serve only to whet the appetites of the insatiably curious. For this reason, the evidence in this case will not be set forth in detail.

The trial court was faced with an emotionally disintegrating family unit. Both parents and both children had undergone or were undergoing professional psychiatric care. The trial court found that the major transgression attributed to the wife by the husband was raised by inuendo, at best, and lacked any hard facts to support it. In most other instances the trial court had to rely upon its assessment of the credibility of the husband and wife to resolve basic conflicts in the evidence. Although certain isolated transgressions were admitted by the wife, the trial court had to weigh certain transgressions leveled by the wife against the husband, and denied by the latter, in the crucible of credibility. This court properly defers to the trial court’s assessment of the credibility of the wife and the husband. In re Marriage of B_ A_ S_, 541 S.W.2d 762, 763 (Mo.App.1976).

The inexorable command to be obeyed when fixing custody is that the welfare and best interest of the minor children be served. Section 452.375, RSMo Supp.1973; In Interest of B. B., 537 S.W.2d 682, 684 (Mo.App.1976); and In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975). Although susceptible of easy and succinct expression, insuring compliance is fraught with difficulty. Many intangibles emerge during trial bearing upon the custody of minor children which a sterile, printed record is many times incapable of reflecting—parental love and affection, and genuine concern for the children, as opposed to merely salving the pride of an individual parent—thereby making it necessary to repose great confidence in the trial court’s determination as to what serves the welfare and best interest of the minor children involved. E_ (S_) v. E_, 507 S.W.2d 681, 684 (Mo.App.1974). The standard for appellate review of the trial court’s order awarding custody of the minor children to the wife in this case is found in Rule 73.01 and clearly explicated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): “[A]ppellate ‘review * * * as in suits of an equitable nature,’ as found in Rule 73.01, is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should 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.” When the record in this case is so reviewed, albeit with cognizance that neither parent was a paragon of parental perfection, it cannot be said that the trial court’s order awarding custody of the minor children to the wife lacked substantial evidence to support it, erroneously declared or erroneously applied the law, or that “a firm belief” exists that it was against the weight of the evidence.

The wife was awarded $250.00 per month as maintenance “until further order of the court”. According to the uncontro-verted evidence, basic monthly living expenses for the wife and two minor children totaled $1,003.76. Although the wife was awarded $450.00 per month child support, the combined total of the maintenance and child support fell short of meeting the basic monthly needs of the wife and children. The wife lacked any vocational training. Her formal education terminated when she finished high school. The husband estimated his monthly living expenses to be $780.00. His net monthly take-home pay was $1,635.18. After deducting his estimated monthly living expenses, a balance of $855.18 is left from which to pay the $250.00 monthly maintenance and the $450.00 monthly child support. Marital property apportioned to the wife was relatively insubstantial in value when measured by present day inflationary standards; concerning separate property, the wife had $600.00 in travelers’ checks. Section 452.-335, RSMo Supp.1973, prescribes two conditions precedent for granting maintenance and certain criteria for determining the amount to be awarded once the conditions precedent are found to exist. The order of the trial court awarding $250.00 per month to the wife for maintenance, both as to the existence of the two conditions precedent and the criteria considered in determining the amount awarded, is likewise subject to appellate review in accordance with the standard set forth in Murphy v. Carron, supra. So reviewed, it cannot be said that the order of the trial court failed to comport with or deviated from Section 452.335, supra.

Judgment affirmed.


text:
    City of KANSAS CITY, Missouri, Respondent, v. Thomas E. BIBBS, Appellant.
    No. 28679.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Sheila Greenbaum, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Dennis E. Lee, Asst. City Prosecutor, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

An information charged that defendant “did attempt to obtain money by false pretenses by giving a blind store manager a $1.00 bill and telling him that it was a $5.00 [bill] ... in violation of the Revised Ordinances of Kansas City, Missouri, 1966 as amended, Chapter 26, Section 26.80, Penalty Chapter 1, Section 1.17.” Defendant, upon being found guilty as charged in the municipal court, appealed to the Circuit Court of Jackson County. In a non-jury trial in the circuit court the defendant was again found guilty as charged and his punishment was fixed at sixty days confinement in The Municipal Correctional Institution.

Defendant raises three points of error on appeal. First he contends that “neither the information nor the evidence was sufficient to support a conviction in that there is no [City of Kansas City] ordinance proscribing attempts to obtain money by false pretenses.” As this point compels a reversal of the judgment below and discharge of defendant, his other two points need not and will not be set forth or discussed.

Defendant was charged, prosecuted and convicted for attempting to obtain money by false pretenses ostensibly in violation of Kansas City, Missouri, Rev. Ordinances Ch. 26, § 26.80 (1967), as amended, [hereinafter referred to as Ordinance § 26.80] which reads as follows:

“Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action or other valuable thing or effect whatsoever, and every person who shall, with the intent to cheat and defraud another, agree or contract with such other person, or his agent, clerk or servant, for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same before paying or satisfying the owner or his agent, clerk or servant therefor, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one dollar ($1.00) nor more than five hundred dollars ($500.00) or be punished by imprisonment in the municipal farm or women’s reformatory, according to the sex of the person convicted, not to exceed twelve (12) months, or by both fine and imprisonment.”

Rule 37.18 governing the initiation of a prosecution for an ordinance violation provides that “[t]he information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” An information purporting to charge a person with violation of a penal ordinance is insufficient and cannot sustain a conviction if it fails to allege facts which constitute a violation of the ordinance upon which it is predicated. City of Green Ridge v. Brown, 523 S.W.2d 609, 611 (Mo.App.1975); Kansas City v. Graham, 502 S.W.2d 411, 415 (Mo.App.1973); Kansas City v. Franklin, 401 S.W.2d 949, 953 (Mo.App.1966); and City of Raytown v. Roach, 360 S.W.2d 741, 742 (Mo.App.1962). Even though an information charging an ordinance violation is not tested by the same degree of strictness and particularity as is an indictment or information charging a criminal offense, the former must set forth facts which, if found true, constitute conduct proscribed by the ordinance relied upon. Kansas City v. Narron, 493 S.W.2d 394, 398 (Mo.App.1973), and cases cited therein.

In the field of criminal jurisprudence an attempt conceptually, “is separate and distinct from the crime itself”. State v. Thomas, 438 S.W.2d 441, 446 (Mo.1969). Ordinance § 26.80 does not purport to proscribe “attempts to obtain money by false pretenses.” Despite its clear import, the city nevertheless charged and prosecuted defendant for “attempting” to obtain money by false pretenses, and the evidence presented by the city disclosed that the offense proscribed by the ordinance was never consummated. However reprehensible defendant’s conduct may have been (depending upon the believability of the city’s evidence), it did not fall within the proscription of Ordinance § 26.80.

As the facts alleged in the challenged information and the evidence presented by the city fell short of charging or proving conduct interdicted by Ordinance § 26.80, defendant’s conviction cannot stand. City of Green Ridge v. Brown, supra, at 611; Kansas City v. Franklin, supra, at 954; and City of Raytown v. Roach, supra, at 743.

Notwithstanding the inadequacy of the information when superimposed on Ordinance § 26.80, the city contends that the conviction could and should be affirmed on the theory that an attempt inheres as a lesser included offense in every penal ordinance and statutory criminal offense.

Although the city cites Sec. 556.150, RSMo 1969, this court has been unable to find, and the city has failed to cite, any comparable ordinance which makes punishable an attempt to commit any offense for which “no provision is made by law for the punishment of such attempt”. Sec. 556.150, supra. The city’s reliance upon Sec. 556.-150, supra, is misplaced because the Municipal Court of Kansas City lacked jurisdiction to entertain an offense predicated on a state statute. As broadly stated in Kansas City v. Henderson, 468 S.W.2d 48, 50 (Mo.1971), “[mjunicipal courts in Missouri are not made courts of record by either the Constitution or the statutes. . . . ” and their “jurisdiction is limited to enforcement of ordinances of that particular city”. See also Kansas City v. Garner, 430 S.W.2d 630, 634 (Mo.App.1968); and Lauer, Prolegomenon to Municipal Court Reform in Missouri, 31 Mo.L.Rev. 69, 73 (1966).

Although a comparable inclusive ordinance dealing with attempt was apparently never enacted by the city, several sections of the Revised Ordinances of Kansas City (1967), as amended, expressly prohibit attempts to commit certain acts, i. e., § 26.-13.1 (attempt to inflict bodily injury), § 26.-35(b) (attempt to obstruct a police officer in the performance of his duty), and § 26.89 (attempt to use a slug in a vending machine). The non-existence of an inclusive attempt ordinance and the existence of specific ordinances making certain attempts punishable prompts reference to the following comment found in R. Perkins, Criminal Law 476 (1st Ed. 1957): “If the code makes specific provision for the punishment of attempts to commit certain offenses, but has no general attempt clause, other attempts may go unpunished under the principle of ‘inclusion and exclusion’ (inclusio unius est exclusio alterius, the inclusion of one is the exclusion of the other).” The “inclusion-exclusion” rule is recognized in this state as a proper tool or aid for construing municipal ordinances. Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404, 412 (1927); and State ex rel. Winkley v. Welsch, 131 S.W.2d 364, 365 (Mo.App.1939). Construed in light of this rule, the conclusion is impelled that an attempt to obtain money by false pretense is not within the contemplation of Ordinance § 26.80.

To support its theory that defendant’s conviction should be sustained on the theory of a lesser included offense, the city finally retreats to the following innovative argument — that by virtue of the common law of England, as adopted by Sec. 1.010, RSMo 1969, an attempt to commit a crime is itself a crime. The English case of Rex v. Scofield, Cald. 397 (1784) is reputed by legal scholars to be the source from which is derived the common law doctrine that an attempt to commit a crime is itself a crime. Sayre, Criminal Attempts, 41 Harv.L.Rev. 821, 834-35 (1928); and W. LaFave and A. Scott, Criminal Law, § 59 at 424 (1972). Sec. 1.010, supra, initially enacted in 1825, adopted “[t]he common law of England . made prior to the fourth year of the reign of James the First” as the “rule of action and decision in this state”. The fourth year of the reign of James the First was the year 1607. Osborne v. Purdome, 244 S.W.2d 1005, 1011 (Mo. banc 1951), cert. denied 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952). As an attempt to commit a criminal offense did not in and of itself become a criminal offense at common law in England until 1784, the year Rex v. Scofield, supra, was decided, the city’s premise that the doctrine therein enunciated somehow cured the information is patently fallible, if for no other reason, because the doctrine relied upon chronologically evolved after the “fourth year of the reign of James the First.” Moreover, the city’s innovative argument does not obviate the jurisdictional question.

The information was fatally insufficient for the following reasons: (1) it failed to charge defendant with the violation of any subsisting ordinance; (2) it cannot be saved by Sec. 556.150, supra; and (3) irrespective of the city’s innovative argument, it cannot be validated on the theory that an attempt inheres as a lesser included offense in every penal ordinance by virtue of Sec. 1.010, supra.

Judgment reversed and defendant ordered discharged.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    Robert J. HAMILTON, Appellant, v. STATE of Missouri, Respondent.
    KCD 28690.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before Wasserstrom, P. J., and SOMER-VILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Appeal from denial of a second motion under Rule 27.26. We affirm.

Appellant was convicted of first degree robbery on a plea of guilty in 1970. In 1971, he filed a motion to set aside the conviction under Rule 27.26 on three grounds, all of which were overruled by Judge Stubbs, by whom the conviction had been entered. That ruling was appealed, and in Hamilton v. State, Mo.App., 490 S.W.2d 363 (1973) this court affirmed the ruling by Judge Stubbs as to two of the grounds stated in the motion, but remanded the case for a consideration and finding as to “[wjhether the trial court improperly and erroneously considered another unproved charge of other offenses of armed robbery and murder.” On March 8, 1973, Judge Stubbs filed additional findings to the effect that prior to sentencing appellant he did not consider untried criminal offenses. No appeal was taken from the order of March 8, 1973.

On September 4,1975, appellant filed the present (his second) motion under Rule 27.-26. This motion in greatly summarized form complained: (a) that appellant’s sentence was unconstitutional for the reason that the court considered an untried criminal offense to enhance the criminal punishment; and (b) that Judge Stubbs improperly undertook to become a judge of his own credibility with respect to whether or not he had considered a different untried alleged offense in entering this sentence and that a hearing should have been held in which Judge Stubbs could have been cross-examined and contrary evidence could have been presented. Upon the filing of this second motion, Judge Stubbs disqualified himself and the cause was transferred to Judge Marsh for hearing. The order by Judge Marsh overruling the motion without an evidentiary hearing constitutes the subject of the present review.

The single point assigned as error is that the trial court (presumably meaning Judge Marsh) erred in overruling the motion without an evidentiary hearing because the allegations of the motion could not be resolved by the trial judge’s (presumably meaning Judge Stubbs’) unsworn, uncross-examined “statements of fact” (presumably meaning Judge Stubbs’ supplemental findings of fact dated March 8, 1973). This point attempts to throw all proceedings under both 27.26 motions into one hodgepodge and is presented and argued as if the new motion filed September 4, 1975, were simply a continuation and a part of the first motion filed in 1971. This assumption constitutes an error fatal to appellant’s position. His original motion came to an end when the time expired for an appeal from Judge Stubbs’ supplemental findings dated March 8, 1973. When no appeal was filed, the order became conclusive and res adjudi-cata. Appellant exhausted his remedy under 27.26 at that point. State v. Thompson, 324 S.W.2d 133 (Mo. banc 1959); State v. Willis, 386 S.W.2d 387 (Mo.1965); State v. Campbell, 307 S.W.2d 486 (Mo.1957); Morse v. State, 539 S.W.2d 325 (Mo.App.1976); Ivy v. State, 509 S.W.2d 148 (Mo.App.1974). The present motion cannot substitute for the appeal which was not taken timely in 1973.

Nor does this second motion lie to attack alleged defects in the proceedings conducted on the original motion. McCormick v. State, 502 S.W.2d 324 (Mo.1973); Duncan v. State, 524 S.W.2d 140 (Mo.App.1975); Foster v. State, 520 S.W.2d 684 (Mo.App.1975); Williams v. State, 507 S.W.2d 664 (Mo.App.1974).

The present second motion under Rule 27.26 therefore stated no ground upon which relief could be granted and it was properly overruled by the trial court. Affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Calvin PAYNE, Appellant.
    KCD 28694.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

An information charged that defendant, “acting in concert with others”, stole three diamond rings of a value over fifty dollars which were the property of a jewelry store in Columbia, Missouri (§ 560.156, RSMo 1969, and § 560.161.1(2), RSMo Supp.1975). A jury found defendant guilty as charged and fixed his punishment at four years imprisonment.

Defendant has not questioned the sufficiency of the evidence to support his conviction, thereby eliminating the necessity of an extended statement of facts.

Defendant entered the jewelry store in question in the company of two young women. He and one of the young women proceeded to a glass case where jewelry was displayed. The other young woman engaged a clerk in conversation. Another clerk observed defendant and his female companion standing at the jewelry display case. A dome-shaped glass display fixture, sitting on the top of the jewelry display case, contained three diamond rings on a black box and other items of jewelry. The three diamond rings were accessible by tilting or raising the dome-shaped glass display fixture. The clerk who had defendant and his female companion under observation saw defendant tilt or raise the dome-shaped glass display fixture and then observed that his female companion had a black box in her hand. The female companion preceded defendant and the other young woman out of the jewelry store. An immediate check of the dome-shaped glass display fixture revealed that the three diamond rings (with an aggregate wholesale value of $455.00) previously exhibited therein were missing.

Defendant raises only one point on appeal, namely, that the trial court erred in giving Instruction No. 6 (MAI-CR 2.10— “Parties: General Responsibility for the Conduct of Others”) after having given Instruction No. 5 (MAI-CR 2.14 — “Principals: Aiding or Encouraging, Whether Present or Not”).

It is unnecessary to delineate the “where-ins” and “whys” assigned by defendant in the single point raised by him on appeal, since any ramifications of error presently urged have not been preserved for appellate review. At trial defendant lodged only a general objection to the giving of Instruction No. 6 and in his motion for a new trial merely alleged that “[t]he court erred in submitting Instruction No. 6 to the jury over the objection of defendant’s counsel”. Rule 20.03 requires, in part, that “specific objections to given or refused instructions and verdict forms shall be required in motions for new trial unless made on the record at the time of trial.” Defendant’s noncompliance with this rule negates his single point for purposes of appellate review. State v. Wade, 535 S.W.2d 492, 497 (Mo.App.1976); State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976); and Rules 20.03 and 27.20(a). The deluge of cases reaching the appellate level serve to emphasize the necessity of enforcing all applicable rules of procedure. Each rule has been designed to facilitate and expedite the orderly administration of justice. A continuing tendency to excuse or overlook noncompliance with them is a “luxury” that can no longer be indulged if the present appellate case load continues. But more importantly, a failure to systematically enforce procedural rules, in a sense, constitutes an abandonment of them which, if continued unrestrained, could eventually lead to procedural anarchy.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Luther E. HUGHES, Defendant-Appellant.
    No. KCD 28736.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

Defendant appeals his conviction and jury-imposed sentence of three and one-half years for the crime of sodomy per os.

The single issue to be determined is the propriety of the cross examination of defendant relating to the issue of supposedly exculpatory statements made to the police who arrested him.

Defendant does not question the sufficiency of the evidence, and the issue posed may be posited on an abbreviated statement of the facts. The State’s evidence tended to show that the complaining witness, a waitress, was forced to commit sodomy per os upon the defendant under threat of a hunting knife wielded by the defendant. The complaining witness testified that she could not start her car after her work ended at 6 a. m. and that the defendant and another helped her start the car, then entered her car and forced her to drive a few blocks where the offense took place. The defendant testified; and his version was that the complaining witness, in the company of another man whom the defendant characterized as the “pimp”, solicited the defendant for money for the performance of the sodomy per os which the defendant testified did, in fact, occur.

The physical facts indicated the defendant was found in the complaining witness’s car, sans all his clothing save a shirt. The defendant was asleep or passed out. A hunting knife and the complaining witness’s bra were found in the car. A passing motorist had picked up the complaining witness after seeing her struggle with and escape from a different black man adjacent to her car. That other individual was never otherwise identified except by the defendant who claimed he was a “black dude” he had seen on the street in 1974.

The factual statement demonstrates the defendant was undertaking the bold ploy of attempting to persuade the jury to negate the statute condemning sodomy per os consensual or otherwise by a not guilty finding in the face of the defendant’s admission of the constituent facts.

The thrust of the defendant’s single point of error is that the cross examination of the defendant violated his right to remain silent. Cited by defendant are Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Butler, 512 S.W.2d 466 (Mo.App.1974); State v. Elmore, 467 S.W.2d 915, 916 (Mo.1971).

All of these cases involve a situation where the defendant has chosen to remain silent upon interrogation and then, upon a trial where the defendant testifies, the prosecution offers the silence as impeachment of trial testimony. The situation here is markedly different. The defendant did talk to the police, and his counsel in the very early stages of the trial attempted to get before the jury the substance of the defendant’s statement to the interrogating officers in the light most favorable to the defendant. This attempt commenced when the motorist who picked up the complaining witness and returned her to her place of employment was questioned in detail by defendant’s counsel as to statements made by the defendant at the time of his arrest. This motorist had returned to the location with the police who were called by the victim. This cross examination was designed to elicit information to negate the forcible nature of the act and imply a consensual relationship. Defense counsel then elicited from the defendant while he was on the stand the defendant’s version of the conversation with the police. A fair evaluation of the questions and answers leads to the conclusion that the effort was to produce a version of the interrogation which was not inconsistent with his trial testimony. It is also doubtful that the objection was timely made to the cross examination. There were four specific questions directed to the defendant as to whether he had told the officers about the proposition, about the pimp, about the supposed payment, and about how he got in the ear. All of these were answered without objection. Only when the prosecutor shifted the inquiry to conversations after the defendant was in jail did an objection occur which the court sustained. Defense counsel then asked a leading question which asserted the police did not ask about what happened in the car. The prosecutor then on recross asked if the defendant had told the police that the girl had propositioned him, precisely the same inquiry which had been unobjected to in the earlier questioning. The defense objection was overruled, and this last inquiry is the basis for the claim of error. It is also questionable that the error is preserved at all, since the motion for a new trial refers to prosecutorial misconduct in inquiring if the defendant had ever “denied” the commission of the offense. From the foregoing, it is clear that this is not a situation where impeachment is attempted by showing silence as in the cases cited. Rather, it is an attempt by the prosecutor to counter the inference that defendant sought to impart to the jury that nothing in the responses of the defendant to the police interrogation was inconsistent with defendant’s trial testimony.

The State argues that the rule of curative admissibility applies, and that position must be sustained. When a defendant testifies, he may be cross examined as to any matter referred to in his direct examination. State v. Coyne, 452 S.W.2d 227, 229 (Mo.1970). Such cross examination is not confined to a categorical review but may cover all matters within the fair purview of the direct examination. State v. Dalton, 433 S.W.2d 562, 564 (Mo.1968). A defendant may not offer his version of the interrogation and avoid cross examination on the details of what was and was not said during the interrogation.

The judgment is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    James Eugene McGUIRE, Appellant, v. JACKSON COUNTY PROSECUTING ATTORNEY, Respondent.
    No. 28741.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      William C. Paxton, A Professional Corp., Paul R. Mudd, Independence, for appellant.
    Don E. Benton, Asst. Pros. Atty., Independence, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

James E. McGuire appeals the refusal of the circuit court to reinstate his driver’s license. Such license was revoked because of the refusal of McGuire to take a chemical breath test pursuant to the request of an arresting officer under §§ 564.441-564.444, RSMo 1969, to determine the alcohol content of his blood.

On this appeal McGuire argues that under the law he had the right to take a blood test to determine, the alcohol content of his blood and by consenting to take a blood test, he did not unequivocally refuse to take a test which would authorize the revocation of his driver’s license. He also alleges a denial of due process in refusing his request to take the blood test in lieu of the breath test. Affirmed.

McGuire was arrested while driving his automobile, and he does not deny the officer had reasonable grounds to believe he was driving while intoxicated. Thus it is not necessary to detail the circumstances surrounding his arrest.

After McGuire was stopped and placed under arrest by a highway patrolman, he was taken to the police station in Blue Springs. On the trip to the police station, the officer advised McGuire that he would request him to take a breathalizer test, and if McGuire refused, then the Director of Revenue could revoke his driver’s license for a period up to one year.

After arriving at the station, the officer, who possessed a valid permit for the administration of the test, prepared the breathal-izer machine. As soon as the breathalizer machine was ready for use, the officer requested McGuire to take the breathalizer test and advised him of the consequences of his refusal. McGuire stated he refused to take the test. A second request was made and again McGuire refused. After McGuire had twice refused to take the breathalizer test, he stated he would take a blood test. The officer advised McGuire there were no facilities for making a blood test. At the hearing on McGuire’s motion, the officer stated the nearest facility he knew where a blood test could be performed was the Medical Center of Independence which was about nine miles, or ten to fifteen minutes, away. The officer made no attempt to arrange for a blood test, but McGuire was allowed to make several phone calls. The record does not disclose who McGuire called.

The evidence on McGuire’s motion consisted entirely of the testimony of the highway patrolman. At the conclusion of the hearing, the court refused to grant such motion, and this appeal follows.

McGuire contends the revocation of his driver’s license was improper and unauthorized because he did consent to take a chemical test, i. e., blood test, and for that reason, he did not unequivocally refuse to take a chemical test as required by law.

Section 564.441 provides:

1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 564.441, 564.442 and 564.444, a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while intoxicated. The test shall be administered by or at the direction of a law enforcement officer whenever the person has been arrested for the offense.
3. The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a test in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.

Section 564.442 provides:

1. Upon the trial of any criminal action or violations of county or municipal ordinances arising out of acts alleged to have been committed by any person while driving a motor vehicle while intoxicated, the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of the person’s blood, breath, saliva or urine is admissible in evidence.

Section 564.444 provides:

1. If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given.

McGuire reasons that Subd. 1 of § 564.441 speaks of a “chemical test of his breath” while § 564.444 simply refers to a “chemical test.” McGuire states that under § 564.442 other chemical tests are recognized by which the alcohol content of a person’s blood may be measured. McGuire argues the chemical test referred to in § 564.444 may be any of the chemical tests enumerated in § 564.442. He then concludes his argument by stating he did not unequivocally refuse to take a chemical test because he offered to take a blood test which is a chemical test enumerated in § 564.442.

The precise question presented in this case was presented to this court in Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969) but was not answered because the court held the evidence failed to show an unequivocal refusal to submit to a breath test. There Thomas had been requested to take a breath test but indicated he wanted to take a blood test. The officer acquiesced in the blood test but after Thomas was unable to obtain a doctor to perform the test, he then stated he would take the breath test. The officer refused to administer the breath test. This court held under those circumstances there was not an unequivocal refusal to take the breath test.

Despite the number of cases arising under the provisions of §§ 564.441-564.444, known as the “implied consent law”, the precise question raised here has never been decided in this state. However, the constitutionality of this law has been decided in Blydenburg v. David, 413 S.W.2d 284 (Mo. banc 1967).

Indiana has been confronted with the same question as here presented in Hill v. Otte, 258 Ind. 421, 281 N.E.2d 811 (1972). From that case it appears Indiana has an implied consent law very similar to that of Missouri. Under the Indiana law, a person arrested by an officer for driving a motor vehicle while under the influence of intoxicating liquor may have his driver’s license suspended for up to one year if the person refuses to provide evidence revealing the alcoholic content of the blood as measured by. a breath analysis. The law further provides the person may have a physician, registered nurse or medical technician of his own choosing administer a chemical test, or tests, in addition to any administered at the direction of the officer. In Hill the breath test was offered to Hill and he refused to take it, but stated he was willing to have a blood or urine test made at a hospital or by a private doctor. The officer refused to grant the request for the additional test and Hill’s license was thereafter suspended. The court held the statute authorized the suspension of the driver’s license once Hill had refused to take the breathalizer test. The court stated Hill was permitted a crosscheck of the breathalizer test by having a physician, registered nurse, or medical technician of his own choosing perform a test. However, the court held there was nothing in the statute which indicated the additional tests were to be given in lieu of the breathalizer test.

The only test which § 564.441 provides a person is deemed to have given consent to take is the breathalizer test. This test is to be performed according to methods approved by the State Division of Health by a person possessing a valid permit issued by the State Division of Health. Section 564.444 bottoms the right to revoke a driver’s license upon the refusal of a person to submit to a chemical test. While this section does not add the words “of his breath” after the chemical test, it is clear the chemical test referred to in this section can only be the breathalizer test. This for the reason the breathalizer test is the only test which the law implies a driver has consented to take. Therefore, the legislature did not authorize revocation on the refusal to take any test except the breathal-izer test. As held in Hill, it is the refusal to take the test which the law deems the driver to have consented to take which authorizes the revocation. Any other test may be administered to a person only by his consent. This means the legislature recognized there are other tests which can be performed to determine the alcoholic content of the blood and a person is free to have these tests made and to introduce the results in evidence. However, an officer has no right to demand a person submit to any test except the breathalizer test. For this reason, § 564.444 clearly means when a person has refused to take a breathalizer test, then upqn occurrence of the other required conditions, the Director of Revenue is authorized to revoke his license.

The reasoning applied in Hill is persuasive on this court. The chemical tests other than the breathalizer may be taken by any person to use as a cross-check against the breath test. But a person has no right to insist on an officer procuring any test other than the breath test. Once a person has refused to take the breath test, the offer to take any other test can have no bearing on the revocation of his license.

In this case there is no doubt McGuire refused to take the breathalizer test. On that refusal, and the admission the other required grounds existed, the Director was authorized to revoke McGuire’s license.

McGuire relies on State v. Snipes, 478 S.W.2d 299 (Mo.1972). However, Snipes did not involve the question presented here and the court made no determination in that case that a request to take a blood test would substitute for a breath test.

Despite the holding of the implied consent law to be constitutional, McGuire makes some contention it would deprive him of due process to base a revocation on •refusal to take the breath test when he offered to take a blood test. This contention was answered in Smith v. State, Registrar of Motor Vehicles, 40 Ohio App.2d 208, 318 N.E.2d 431 (1974). There the court held the right to an additional test is statutory and not an inherent or constitutional right. The court stated the refusal by the officer to cause an additional test to be administered did not constitute a denial of due process. This court adopts the holding in Smith. No denial of due process resulted from the officer’s failure to cause any test other than the breath test to be given. Such finding is a matter of constitutional application and not construction.

McGuire impliedly consented to take the breath test when he operated his automobile on the highways of the State. Under the law his license could be revoked for refusal to take this test. He refused to take the test and upon the occurrence of the other requirements, revocation of his license was proper. His refusal was not mitigated in any manner by an offer to take an additional chemical test. He was free to arrange to take such other and further chemical tests as he desired, but for his refusal to take the breath test, the law mandates a revocation of his license.

Judgment affirmed.

All concur.


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    STATE of Missouri, Respondent, v. Marvin Lee SAUNDERS, Appellant.
    No. KCD 28780.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      John B. Schwabe, II, Columbia, for appellant.
    David M. Strauss, Asst. Pros. Atty., Columbia, for respondent.
    - Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Appealing from a conviction by jury under § 564.440 RSMo 1969 for driving while intoxicated, defendant assigns three points of error.

As his first point, defendant states that the trial court erred by failing to sustain an objection to an explanation by the prosecuting attorney in his closing argument as to why he had been absent from the courtroom during a portion of the trial. Defendant alleges that the explanation referred to was “patently false” and that it injected matters not in issue and was designed only to arouse the sympathy of the jury, thereby denying defendant a fair trial.

With respect to this matter, the record shows that the prosecuting attorney was absent when the trial resumed after the luncheon recess, and that he returned only after the defendant had concluded his testimony on the stand. In his argument to the jury, the prosecutor commenced with the following comment to which defense counsel made the following objection:

“First, let me apologize to you for my tardiness after the lunch break. Besides Judge Cave having the flu today, two members of our office, Eric Sowers and Earl Seitz, are out with the flu, leaving just Mr. Harper and myself. And besides this Court, there are other — [interrupted]
MR. SCHWABE [Defense Counsel]: We know where he was. He was eating dinner and I could have been there, too, at that same luncheon. I object to that for trying to invoke sympathy.”

The trial court made no ruling on that objection, and defense counsel pressed for none. Nor did defense counsel offer any evidence tending to prove any falsity in the statement made by the prosecutor to the jury.

Wholly apart from that defective preservation of the point claimed, this complaint is devoid of merit. The statement in question constituted in effect simply a brief apology which could not have had the effect of denying defendant a fair trial. The cases cited by defendant on this point have been examined and none of them is even remotely in point.

As his second point, defendant argues that the trial court erred in failing to instruct with respect to driving while having ten-hundredths of one percent or more by weight of alcohol in the blood, an offense under § 564.439, which defendant claims to be a lesser included offense to driving while intoxicated, which is the offense described by § 564.440 and which is the offense described in the information here. This identical issue has just been ruled contrary to defendant’s contention in State v. Blumer, 546 S.W.2d 790, decided by this court January 31, 1977.

For his third point, defendant contends that the trial court “erred in overruling appellant’s objection to the prosecuting attorney’s argument that a jury verdict of not guilty would send out a message that convictions for driving while intoxicated may be avoided by refusing to take the breathylizer test.” The argument by the prosecutor to which this objection makes reference was as follows:

“I shudder to think what would happen if other people in this county, when they get arrested for driving while intoxicated, if they learn the way to beat them is don’t take that breath test, just refuse to take it, just go on the officer’s word and come in here and attack the officer — [interrupted]”

With respect to this point, defendant states in his brief that he “readily concedes that the law in the State of Missouri is that a prosecutor may argue that guilty persons should be convicted in order that others may be deterred from the commission of a crime.”

Nevertheless, defendant argues that in this case the prosecutor carried his argument beyond a reasonable limit.

A very similar closing argument and a parallel objection were made in State v. Blumer, supra, and this court there held that the objection to the prosecutor’s argument was properly overruled. That ruling in Blumer is controlling here.

None of defendant’s points being meritorious, the judgment is affirmed.

All concur.


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    CITY OF TRENTON, Respondent, v. Michael G. LAWRENCE, Appellant.
    No. KCD 28789.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Holcomb, Spillman & Roberts, Lyle E. Spillman, Trenton, for appellant.
    Jack N. Peace, Erwin L. Milne, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Michael G. Lawrence was charged in the Trenton Municipal Court with driving while intoxicated in violation of a city ordinance. He was found guilty and appealed to the circuit court. There, upon trial to the court, he was found guilty and a fine of $50 was assessed. After motion for new trial was overruled, he appealed to this court.

At around 10:20 P.M., September 3, 1975, Trenton police officers Jerome Bland and Delbert McKown, traveling in a police vehicle, noticed appellant’s automobile leaving the intersection of 28th Street and Oklahoma Avenue in the City of Trenton. According to the officers, their attention was drawn to the vehicle when it accelerated rapidly after stopping at a stop sign at the intersection. The officers, some 500 feet away when they noticed the auto, started in pursuit of it, traveling at speeds of from 70 to 75 miles per hour for about ¾ mile. They finally overtook appellant after he had turned into the driveway at his residence.

Officer Bland got out of the police care and talked with appellant. The officer noticed that appellant had the odor of alcohol on his breath, his eyes were glassy, his face was flushed and he was unsteady on his feet. Appellant told the officer that he had been drinking at a local tavern. The officer placed appellant under arrest and took him to the police station for a Breathalyzer test. Appellant cooperated readily with the officers. A test was administered, but, because of the difficulty which the officer who administered the test had with explicating the result of the test, his testimony on the subject was stricken by the circuit court.

On the basis of the officer’s testimony, supplemented by the unobjected-to testimony of the officer who observed but did not administer the Breathalyzer test that appellant “tested out eleven one-hundredths percent,” the trial court made a finding of guilt. No testimony was offered on behalf of appellant.

In this court, the sole contention of appellant is that the trial court erred in finding that the evidence proved beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle.

There was substantial evidence, viewed in the light most favorable to the court’s finding (Kansas City v. Stamper, 528 S.W.2d 767, 768[1, 2] (Mo.App.1975)), from which the trier of fact could reasonably reach the conclusion which it did. The arresting officer testified to the noticeable odor of alcohol on appellant’s breath and appellant acknowledged that he had been drinking. Officer Bland testified that appellant’s eyes were “glassy.” Officer McKown testified that appellant was unsteady on his feet. Officer McKown expressed the opinion, based upon his observation, that appellant was intoxicated. This was substantial evidence which would permit the court to find appellant guilty beyond a reasonable doubt. State v. Roach, 480 S.W.2d 841, 842-843[3] (Mo.1972); Kansas City v. Ramsey, 525 S.W.2d 392, 394 (Mo.App.1975). Officer Bland’s conclusion, in response to the question as to his opinion on appellant’s state that “he was just on the borderline,” does not preclude the trial court’s finding. State v. Roach, supra. Nor is the trial court’s conclusion to be rejected because the evidence failed to produce all of the indicia of intoxication, found in cases such as Kansas City v. Douglas, 483 S.W.2d 760 (Mo.App.1972), cited by appellant. The fact, not the degree, of intoxication is the significant fact. State v. Chester, 445 S.W.2d 393, 397 (Mo.App.1969). The trial court could reasonably conclude, on the basis of testimony of the officers, that appellant’s ability to operate his motor vehicle was impaired, as demonstrated by his operation of his auto at an excessive speed, accompanied by spinning wheels and excessive noise.

The evidence was sufficient to permit the finding of guilt.

Judgment affirmed.

All concur.