author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Albert SIEMS, Defendant-Appellant.
    No. 35504.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 3, 1976.
    Motion for Rehearing or Transfer Denied March 10, 1976.
    Application to Transfer Denied May 5, 1976.

      Donald V. Fraser, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., Charles B. Black-mar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals his conviction by jury of the offense of sodomy in violation of § 563.230 RSMo 1969. On appeal, defendant raises four points of alleged error, all of which are stated in the abstract, do not state why they are erroneous and thereby fail to comport with the requirements of Rule 84.04. But, nevertheless, we are compelled to reverse and remand the case for a new trial.

The facts, as presented through the prosecuting witnesses, are sufficiently facino-rous. The victim, a 12 year old girl, testified that at the defendant’s urging, she had placed her mouth on defendant’s penis. The defendant categorically denied any libidinous conduct with the victim.

The first point of error raised by defendant, although not properly presented, and that upon which our decision turns, relates to the cross-examination by the prosecutor of the defendant’s character witnesses. Two character witnesses, both housewives from defendant’s neighborhood, testified that the defendant had a reputation for truthfulness and good moral character. On cross-examination the prosecutor explored the extent of the witnesses’ knowledge of defendant’s reputation. In doing so, the prosecutor asked questions relating to previous purported acts of misconduct by defendant — specifically, although there was absolutely no evidence that the defendant had engaged in wife-swapping, the prosecutor persistently burrowed into the matter of wife-swapping and other areas thusly:

(First character witness)
“Q. [Prosecutor] Has any of those 5 to 10 people [persons the character witness had talked to about defendant’s good moral character], have they ever told you that they have heard rumors about Mr. Siems’ [defendant’s] conduct in other places and that they don’t approve of what they had heard — not that he did it— just that they don’t approve of what they had heard?
A. Well, those that they had heard, they don’t believe.
Q. I see. Did they tell you they knew anything about he and his wife’s activities in a wife-swapping club. ⅜ ⅜: ⅜ * * ⅜
[Prosecutor]: That happened in St. Louis, Rolla, Missouri, Cape Girardeau, St. [sic] Genevieve.
⅜ ⅜ * ⅜ * *
Q. [Prosecutor] Have they ever told you — have you ever heard any rumors from them about that activity?
A. No I haven’t.
Q. Never have?
A. No sir.
Q. How would you feel about his personal reputation if that was the situation? Would that cause you to feel differently about him?
A. If what?
Q. If you were aware or heard that Mr. Siems was engaging in wife swapping activities in a club, would you feel differently about his reputation for morality?
A. Well, I would just tell them they was lying, in my—
Q. Right.
A. It couldn’t be true.
I see. But you don’t know. Now, my question is simply this: If you heard that, okay, if you heard that— Q.
A. If I heard it, yes.
Q. Became aware of that, would you then have a different idea about what his reputation was — not that it’s true — just what reputation was?
A. Well, I never heard it.
Q. Well, I want you to assume that you had heard it. Would that cause you — not whether it’s true or not, would that cause you to have a different statement to this jury about what his reputation is for morality, wouldn’t it?
A. No, it wouldn’t.
Q. It wouldn’t.
A. Because I can’t assume that anyone would mention that. I just can’t assume it.
* * * ⅜ sfs ⅜
Q. [Prosecutor] I’m asking if you ever heard any gossip of that nature amongst these people?
A. If I had ever heard of any gossip that—
Q. That Mr. Siems—
A., I’ve never heard any gossip like that, no.
Q. And you never heard that from any of those five to ten people?
A. No, I haven’t.
Q. Now, I want you, not to assume it’s true or not, but if you heard that would you might have a different— you’d have to tell the jury he had a different reputation for immorality through a wife-swapping club operating through Missouri.
A. Well, if I had heard that—
Q. You’d have to tell them that.
A. But I haven’t heard that.
Q. I know it but I want you to assume that you had heard that, then you would have to tell this jury a different thing, wouldn’t you?
A. Well, if I heard it I would have to say—
Q. That’s right.
A. (Continuing) — so, but I didn’t.
Q. [Prosecutor] Were those people that you talked to, were they aware that he was arrested and charged with child molestation of _ [victim’s sister] by inserting his hand in her panties and then inserting his finger into her vagina on three or four occasions?
A. They knew that he was accused— let’s see, I don’t know how to say this. The first I heard Mrs. Siems told me of the charges.
* * * * * *
Q. [Prosecutor] Did you ever think that a person like, you know, could kill the President when the people say—
Q. [Prosecutor] Have you heard people say, ‘Jesus,’ you know, T know that guy.’ ‘He wasn’t,’ you know, ‘he’d been a good guy all his life but suddenly he got involved with someone else’ — you’ve heard that, haven’t you?
* * * * * *
Q. I understand. You seem like a fine person to me. Let me ask you a very simple question. You know, if you had heard rumors about his actions with other children like the _[the victims] and heard rumors about his wife and his activities in a wife-swapping club, wouldn’t that cause you to feel that his reputation for morality, that is, what you had heard about him from others certainly wasn’t good.
* * * * * *
[Second character witness]
Q. [Prosecutor] Right. Have you ever heard amongst those four people that you talked to that they had ever heard about Mr. Siems and his wife belonging to a wife-swapping club, some twenty couples, that operated throughout the State of Missouri?
A. No.”

The general rule in Missouri, from which we do not deviate or retreat, is that the State may cross-examine a character witness with reference to defendant’s prior arrests and accusations of specific misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness. State v. Johnigan, 494 S.W.2d 23 (Mo.1973); State v. Hastings, 477 S.W.2d 108 (Mo.1972); State v. Rojano, 519 S.W.2d 42 (Mo.App.1975). In such cross-examination the State may inquire into mere rumors concerning the character of the defendant. State v. Curry, 372 S.W.2d 1 (Mo.1963); State v. Richardson, 364 S.W.2d 552 (Mo.1963). But there are limits to the scope of examination of character witnesses, and the prosecutor here transcended those limits. The State’s questions cannot be asked “merely for the purpose of improperly showing other crimes or for the purpose of going into collateral details.” State v. Carroll, 188 S.W.2d 22, 24 (Mo.1945). And the State’s questions must not be argumentative or call for a conclusion or assume facts. State v. Selle, 367 S.W.2d 522 (Mo.1963); State v. Carroll, supra. Thus, the form of the questions about other acts of misconduct is important. The State had a right to ask in good faith if the witness had heard rumors regarding misconduct of the defendant, for if the witnesses admitted knowing of the rumors, such knowledge may be treated as being inconsistent with previous assertions that the defendant’s reputation is good. State v. Seay, 282 Mo. 672, 222 S.W. 427 (1920); State v. Carson, 239 S.W.2d 532 (Mo.App.1951). But since the witnesses denied having heard the rumors, persistent questioning about the possible effect the hypothesized rumors would have on their testimony was totally argumentative and pursued a highly inflammable prejudicial collateral issue. By propounding hypothetical questions, asking the character witnesses to assume rumors they had never heard, the State brought repeated references of highly immoral misconduct before the jury in an emotion-charged sex crime case. Such insinuations, unsubstantiated by evidence, could not have been introduced directly and should not have been allowed by an indirect method under the pretext of testing the credibility of the character witnesses.

The following statement from State v. Selle, supra, at 529-530 is particularly felicitous to the matter of the prosecutor’s cross-examination of the character witnesses:

“In an effort to guard against misuse or abuse, whether by inadvertence or by design, of the accorded right of cross-examination of character witnesses, we have warned (as others also have) that, in cross-examination, it is improper to propound hypothetical questions which assume supposed facts and call for an opinion predicated thereupon, (cites omitted). ‘(C)ross-examination should not be permitted to be used to covertly convey to the minds of jurors suspicion and prejudice as to a defendant by a recital as facts of supposed matters not appearing in the evidence and wholly outside of the case.’ Pittman v. United States, supra, 8 Cir., 42 F.2d 793 loc. cit. 797. In other words, prosecuting officials should not be permitted in this fashion to convey to the jury by innuendo and insinuation purported information which they are forbidden to impart directly.” (cites omitted).

Clearly, the prosecutor’s cross-examination of the character witnesses went beyond the permissible limits indited in State v. Selle, supra. Further, the excessively repetitious manner of the inquiries casts doubt as to the good faith purpose of the line of questioning. As stated in State v. Hastings, supra:

“[Cjross examination of character witnesses by the State touching their knowledge of prior convictions ‘ought to be done in good faith, and the crimes inquired about ought not to be apocryphal, existing alone in the fertile fantasy of a public prosecutor.’ ”

The questioning here was more than a touching of the witnesses knowledge of defendant’s character. The interrogation was quantitatively fulsome and qualitatively deficient.

We also believe that the prosecutor’s comment contained in the case relating to defendant’s relations with the victim’s sister was unnecessary and added more fuel to the fire of prejudice.

Inasmuch as we are remanding this case, we must consider the other points raised by defendant as they might reoccur on retrial. Defendant contends that the verdict directing instruction was erroneous, in that it was indefinite as to setting the time of the offense. We note that the transcript fails to reflect that defendant’s trial counsel objected to the instruction, and defendant’s brief fails to set forth the instruction. Except for the fact that we are remanding for retrial, we would not consider this alleged point of error. State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

The pertinent portions of the instruction under attack provide:

“You are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt, that in the City of St. Louis, State of Missouri, during the month of February, 1972, the defendant Albert Siems did commit the . . . crime against nature. . . (Emphasis added).

It is contended that the instruction negated defendant’s alibi defense, since the instruction directed a guilty verdict if defendant was found guilty of the crime alleged anytime “during the month of February, 1972.” The information stated that the alleged crime took place “on or about the 23rd day of February, 1972.” At trial, it developed that the victim could not remember the exact date of the offense. It occurred sometime while her mother was in the hospital from January to March 9, 1972. It was the victim’s best recollection that the offense occurred toward the latter part of February, possibly the last week on either a Friday or Saturday night. The defendant testified as to the particular days he had been at the victim’s house during the last week in February where the alleged sodomical act took place but denied any offensive conduct.

The defendant placed and limited the focus of his alibi on the last weekend in February. The defendant also testified that by checking his business records he could account for his time for about 75 percent of the entire month of February, and he admitted being in the victim’s house approximately two or three times a week during the period of her mother’s confinement in the hospital. We find that the defendant was not prejudiced by the verdict directing instruction he challenges.

Except where time is of the essence, it is not error to give an instruction that submits the happening of the offense at anytime within the limitation period. State v. Arnett, 370 S.W.2d 169 (Mo.App.1963). See also State v. Proffer, 159 S.W.2d 681 (Mo.1942). Time is not of the essence in a crime of the nature here considered. However, the State has the burden of proof to establish the presence of the accused at the time and place of the offense. Therefore, when an alibi defense is interposed, time may be of decisive importance even though not of the essence of the offense. State v. Clark, 509 S.W.2d 740 (Mo.App. 1974). With the foregoing principles in mind, we find that the instruction given was not error. When a specific date is presented as the date of the alleged crime, an instruction covering a broad period of time may not be given which would nullify an alibi defense supported by substantial evidence. State v. Bowles, 360 S.W.2d 706 (Mo.1962); State v. Chittim, 261 S.W.2d 79 (Mo.1953). However, in this case the State did not rely on a specific day or week. The young victim, for understandable reasons, did not report the crime for about four months and could not state precisely when it occurred. Defendant acknowledged being in the victim’s house two or three times a week during the month of February. We believe that the evidence in this case puts the instruction within the holding of State v. Walker, 357 Mo. 394, 208 S.W.2d 233 (1948), upholding a verdict directing instruction reciting that the sex crime complained of occurred “on or about the _ day of December 1945.” The court in Walker found the instruction “sufficiently limited the time of the alleged offense, for which appellant was convicted, to the facts testified to by prosecutrix.” Op. cit. 208 S.W.2d at 238. So, too, here.

The third allegation of error relates to a question asked of the defendant on cross-examination which was said to improperly raise the issue of another crime. The prosecutor questioned defendant about the victim’s sister and asked:

“Have you ever — during the month of February did you ever put your hand in her pants and stick your finger in her vagina?”

After objection, the prosecutor withdrew the question. Generally, the asking of an improper question is not prejudicial when the witness does not answer. State v. Holland, 530 S.W.2d 730 (Mo.App.1975). See also State v. Scarlett, 486 S.W.2d 409 (Mo.1972). However, we do find the question unnecessary and obnoxious, and on retrial of the case it should not be asked.

Defendant’s final contention on appeal is that the trial court erred in refusing to compel the State to produce the grand jury testimony of the victim. The record fails to disclose any request by defendant’s trial counsel for the grand jury testimony, so we need not rule on this matter.

For the reasons previously stated, the cause is reversed and remanded for new trial.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Compare State v. Palmer, 306 S.W.2d 441 (Mo.1957), where it was held that time is not of the essence in a statutory rape case, with State v. Taylor, 345 Mo. 325, 133 S.W.2d 336 (1939). In the Taylor case, time was of the essence because defendant was charged with attempt to corrupt a “summoned juror,” and the evidence showed only one attempt to influence the juror after the juror had been summoned. The instruction was too broad because it encompassed an attempt to corrupt the juror made prior to the time he was summoned.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    Barbara N. RAY, Appellant, v. Robert L. RAY, Respondent.
    No. 9910.
    Missouri Court of Appeals, Springfield District.
    Feb. 23, 1976.
    Motion for Rehearing and for Transfer Denied March 10, 1976.
    Application to Transfer Denied May 5, 1976.
    Nicholas R. Fiorella, Smith, Askinosie & Fiorella, Springfield, for appellant.
    William A. Wear and William A. Wear, Jr., Wear & Wear, Springfield, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

In this proceeding for dissolution of marriage, appellant Barbara N. Ray attacks that portion of the decree which awarded custody of her son Rocky Lawrence Ray to his father, respondent Robert L. Ray.

The parties are the parents of two children, Tammy, who was born March 5, 1961, and Rocky, who was born May 22, 1968. The decree, which was entered on October 29, 1974, awarded custody of Tammy to appellant and ordered respondent to pay-appellant the sum of $125 per month for the support of Tammy. Custody of Rocky was awarded to respondent. Each parent was awarded “reasonable visitation rights” with respect to the child in the custody of the other.

Appellant and respondent are college graduates, each holding a master’s degree. Appellant is a high school teacher and respondent is employed as a project engineer for a major corporation. His income substantially exceeds that of appellant.

Section 452.375 V.A.M.S. sets forth certain factors which the court must consider in determining custody “in accordance with the best interests of the child.” But the statute states that the court must consider “all relevant factors” which include those specifically stated. See “Child Custody” by Prof. John M. Speca, 29 J. of Mo. Bar, 519 (1973) for an enumeration of other factors which may be considered.

“There are no precise rules to follow in matters involving the custody of minor children of divorced parents, and each case must be judged on its own facts with the children’s welfare controlling the outcome.” Ackfeld v. Ackfeld, 483 S.W.2d 614, 616[1] (Mo.App.1972). The findings of the trial court, though not binding on this court, are not to be lightly disturbed and will be deferred to unless this court finds that the welfare of the children requires some other disposition. Ackfeld at p. 616[2]; Johnson v. Johnson, 526 S.W.2d 33, 36[6] (Mo.App. 1975).

The trial court, in awarding each parent custody of one child, found both parties to be fit parents. E.C.S. v. J.D.L., 529 S.W.2d 423, 425 (Mo.App.1975). Absent exceptional circumstances, the children of divorced parents should not be separated, but the trial court has the power to decree such separation if it is in accordance with the best interests of the children. J. v. E., 417 S.W.2d 199, 203[7-8] (Mo.App.1967); E.C.S. v. J.D.L., supra, at p. 426[5].

It would serve no useful purpose to summarize the lengthy transcript. Each parent claimed that the other is not a model parent and each made admissions lending support to the claim of the other. It is clear that each parent loves both children and is genuinely interested in their welfare.

This court is not confronted so much with inconsistencies in the evidence as it is with the difficult problem of determining what custody arrangement accords with the best interests of the children. Reluctant as it is to disturb the ruling of the trial court, this court has determined that both children should be with their mother.

Some of the factors, of varying importance, which have led to this conclusion, are: The mother does not work in the summer while the father does; the ages of the children; on occasion the father must make business trips; both children are in reasonably good health; though there is some degree of sibling rivalry, it does not appear to reach such an extreme that one child should be substantially deprived of the companionship of the other; the father appears over-protective of Rocky; for over a year prior to the trial the father slept with Rocky in a twin bed for alleged reasons not wholly convincing, and he continues to do so.

The record does not support a showing of “exceptional circumstances” which would justify separate custody.

Appellant requested child support in the amount of $350 per month if she were awarded custody of both children. Rocky is younger than Tammy but he requires medical attention for an asthmatic condition. This court finds that $125 per month is a reasonable amount for the support of Rocky.

The judgment is reversed and the cause remanded with directions to the trial court to amend its decree so as to award custody of Rocky Lawrence Ray to appellant, to require respondent to pay appellant the sum of $125 per month for the support of Rocky Lawrence Ray commencing upon the transfer of his custody to appellant, and to grant respondent the right of reasonable visitation with respect to said child. The decree in all other respects is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    Alfred RYDER and Mary Ann Ryder, Appellants, v. Max WESCOAT and Virginia Wescoat, Respondents.
    No. KCD 27484.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Application to Transfer Denied May 5, 1976.
    Ronald A. Barker, Andrew A. Krohn, Barker & Krohn, Princeton, for appellants.
    Wm. H. Norton, Jr., Norton & Pollard, Inc., North Kansas City, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This case poses the problem of a rejection on the part of an option holder and a subsequent acceptance within the time limited. The trial court held the rejection terminated all rights under the option. This court holds the option rights were not terminated.

Wescoat, for a valuable consideration, gave Ryder an option to purchase a 120 acre farm upon which Wescoat held an option. The parties agree the deadline for Ryder to exercise the option was September 1. This was prior to the time within which Wescoat had to exercise his option so that in the event Ryder exercised his option with Wes-coat, Wescoat would have time in turn to exercise his option and acquire title to convey to Ryder.

The parties do not clash on any factual issue, but rather strongly disagree as to the effect of a rejection Ryder made of his right to purchase the farm.

It is tacitly agreed that on August 20, before Ryder’s option expired on September 1, Ryder said he was going to “pass” on the 120 acre farm. Weseoat testified he took this to mean Ryder was not going to exercise his option to purchase such farm, and thereupon talked with a bank about obtaining the necessary financing to purchase the farm himself under his option. Weseoat also stated he talked with a bulldozer operator and obtained a price for doing some work on the farm, and in addition, arranged to do some liming. Weseoat admitted he had not legally obligated himself under any of these arrangements, and stated if Ryder had actually purchased the farm on September 1, he would not have been obligated for any expenditure on the land.

On August 30, Ryder caused a contract to be prepared by which he agreed to purchase the 120 acre farm from Weseoat. This contract along with a down-payment was given to Weseoat on that day. Weseoat refused to sign the contract and stated he did not sell the land to Ryder because of Ryder’s previous rejection of his right to purchase on August 20.

The trial court made findings of fact in which it was found Ryder had informed Weseoat on August 20 that he would not exercise his option to purchase and Ryder had thereby rejected and relinquished his option and right to purchase. The court further found on August 30 Ryder undertook to exercise his option but that Weseoat refused to honor the same or to comply with the terms of the option.

On review of this court tried case it is the duty of this court to make its own findings, giving due deference to the finding and judgment of the trial chancellor. Cartmill v. Evans, 498 S.W.2d 541, 544 (Mo.1973). Since there is no factual dispute, the only question is the legal effect of the rejection by Ryder and his subsequent acceptance.

No case has been cited, and diligent research on the part of this court has failed to locate any case involving this precise issue. However, text writers have dealt with the problem. In Simpson on Contracts, 2d Ed., § 23, the author states:

“Where an offer is supported by a binding contract that the offeree’s power of acceptance shall continue for a stated time, will a communicated rejection terminate the offeree’s power to accept within the time? On principle, there is no reason why it should. The offeree has a contract right to accept within the time. At most rejection is a waiver of this right, but waiver not supported by consideration or an estoppel by change of position can have no effect upon subsequent assertion of the right. So an option holder may complete a contract by communicating his acceptance despite the fact that he has previously rejected the offer. Where, however, before the acceptance the offeror has materially changed his position in reliance on the communicated rejection, as by selling or contracting to sell the subject matter of the offer elsewhere, the subsequent acceptance will be inoperative. Here the rejection is a waiver of the offeree’s contract right to accept the offer, binding the offeree by estoppel, so his power to accept is gone.”

To the same effect is Corbin on Contracts, Vol. I, § 94, p. 392, 1963.

It must be kept in mind Ryder had purchased for a valuable consideration the right to purchase this farm. This removes this case from the rule applied in those cases where an offer has been made, but the offeree has not paid any consideration for the making of the offer. In those cases, it is uniformly held that a rejection of the offer terminates the offer. Likewise, the making of a counter-offer terminates the original offer and places it beyond the power of the offeree to thereafter accept the offer.

However, the courts treat options which are purchased for a valuable consideration in a different manner. Thus, in Sunray Oil Company v. Lewis, 434 S.W.2d 777 (Mo.App.1968) this court quoted with approval from Corbin on Contracts the rule that a counteroffer does not terminate the power of acceptance when the original offer is an irrevocable offer. In Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62, 66[3-7] (1937) it was stated:

“The purpose of an option contract for land is to bind the landowner for a valuable consideration not to withdraw a specified offer for the sale thereof during a fixed period, so that he is bound ‘to convey his land to another upon condition that such other shall, within a specified time, accept his offer and comply with the terms proposed.’ ”

Since an option stands on a different footing from an offer which is made without consideration being paid therefor, and since it has been held that an option is irrevocable for the time stated, and that a counter-offer does not effect a rejection, it necessarily follows that a rejection standing alone would not end the rights of the option holder. This court adopts the rule stated in Simpson and Corbin and holds that a rejection of an option which has been purchased for a valuable consideration does not terminate the rights of the option holder unless the optionor has materially changed his position prior to a timely acceptance.

This rule fully protects the rights of both parties. It extends to the optionor the protection he requires in the event a rejection of the option is communicated to him and he thereafter changes his position in reliance thereon to his detriment. At the same time it protects the right of the option holder to have the opportunity to exercise his option for the full period for which he paid, absent the material change in position.

To apply this rule in this case, it must be held Ryder retained his right to exercise the option for the reason Wescoat has not shown any material change in his position between the time of the rejection and the later acceptance. The material change required by the rule adopted is the same as that in the well established rules of estoppel. This requires that a party must suffer a legal detriment or change his position for the worse and be prejudiced. Martinelli v. Security Insurance Co. of New Haven, 490 S.W.2d 427 (Mo.App.1972).

Wescoat did not show that he had suffered any detriment, had changed his position for the worse, or had been prejudiced by any action he took between the time of Ryder’s rejection and acceptance. Wescoat talked about obtaining a loan, doing bulldozing and spreading lime on the farm, but actually took no action which obligated him to pay prior to Ryder exercising his option to purchase. In that situation, Wescoat did not materially change his position prior to the acceptance by Ryder, and Ryder’s acceptance prior to September 1 was a valid exercise of his right to purchase the farm.

Wescoat’s position on this appeal is based solely on the proposition that a rejection once communicated terminated all Ryder’s rights under the option. In taking this position, Wescoat relies on cases involving continuing offers for which no valuable consideration was paid. In addition, Wescoat relies on Doerflinger Realty Company v. Maserang, 311 S.W.2d 123 (Mo.App.1958). However, that case was decided upon a disputed factual question of whether or not a loan had been obtained upon the terms the purchaser agreed to accept. The court did not discuss the issue present in the case at bar, and nothing in that case indicates anything contra to the holding in this case.

The parties have not raised any other question concerning the validity of the option. The only question presented to this court is the effect of the rejection by Ryder as shown by the circumstances in this case.

The judgment in favor of Wescoat is reversed and the cause is remanded with directions to enter a judgment in favor of Ryder. The court shall direct specific performance of the agreement between Ryder and Wescoat for the purchase and sale of the 120 acre farm. The court is also directed to enter judgment in favor of Wescoat and against Ryder for $1500 admittedly due Wescoat under the option.

All concur.


author: PRITCHARD, Chief Judge.

text:
    Ben V. CASCIO, Respondent, v. Michael D. GARRETT, Supervisor of Liquor Control for the State of Missouri, Appellant.
    No. KCD 27594.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Application to Transfer Denied May 5, 1976.
    John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for appellant.
    Harry A. Morris, Thomas E. King, Laurence R. Tucker, Kansas City, for respondent; Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, of counsel.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

The basic issue is whether respondent is entitled to have his license to sell 5% beer in the original package renewed by reason of a November 16,1972, gubernatorial pardon of a February 24, 1947, revocation of a license to him to sell liquor by the drink. The reason that the prior license was revoked was that the supervisor of liquor control found that respondent had unlawfully transferred the license and failed to inform the supervisor of the change in the facts stated on his original application for the license.

On December 20,1972, after the gubernatorial pardon of the 1947 revocation, the then supervisor of liquor control, Courtney Goodman, issued respondent a license to sell 5% beer in the original package. Prior to the expiration of this license respondent made application to appellant for a renewal, but on July 6, 1973, appellant refused to issue the license because, citing § 311.060, RSMo 1969, respondent’s previous 1947 license had been revoked. Upon petition for review, the trial court found: “The dispute over the effect of the Governor’s pardon is a tempest in a tea pot. The pardon was a nullity, for there was no crime to pardon. At most, it amounted to an executive attestation to the good moral character of plaintiff and his potential eligibility for a license upon termination of his prior revocation. That termination occurred December 20, 1972, when the Supervisor in the exercise of his statutory discretion issued to plaintiff license No. 572. He was not bound by any prior determination of his predecessors.” The judgment entered was upon Count I of respondent’s amended petition. The allegation therein that the pardon removed any disqualifications flowing from the 1947 license revocation was, as noted, found against respondent by the trial court. Further allegations were that the granting of the 1972 5% beer license constituted a waiver of the supervisor’s right to assert any invalidity of the pardon and estops him from refusing to issue the present license applied for on the basis that the Governor lacked authority to pardon respondent; and that the refusal to issue the license was arbitrary, capricious, unreasonable, not authorized by law, and not supported by competent and substantial evidence on the whole record.

The matter of the effect of the gubernatorial pardon is pursued here by respondent, but in a very similar factual background, the issue was ruled in Theodoro v. Department of Liquor Control, 527 S.W.2d 350 (Mo. banc 1975), which is controlling on this court. It was there held, 527 S.W.2d 354[10], “Because the governor’s pardon was not effective to remove the revocation of respondent’s original license, the decision of the supervisor not to renew the license which was granted on the basis of that pardon was in accordance with Sec. 311.-060(1), RSMo 1969, was correct and should have been affirmed.”

It is settled that “The legislature has the right to determine what may deprive an applicant of the right to receive a license to sell liquor. Such right is one of the prerogatives of the legislative branch of the government.” Wilson v. Burke, 356 Mo. 613, 202 S.W.2d 876, 878[1-4] (1947). By § 311.060(1), the legislature has in clear language edicted that “ * * * no person shall be granted a license or permit hereunder whose license as such dealer has been revoked * * *.” (Italics added.) Supervisor Goodman, on December 20,1972, in apparent reliance on the gubernatorial pardon of respondent, was without authority to issue a license to him. His act in so doing was illegal, in clear disobedience to the mandate of the statute, and therefore the state cannot be estopped to refuse the renewal of that illegal issuance of a license. Compare Aetna Ins. Co. v. O’Malley, 343 Mo. 1232, 124 S.W.2d 1164, 1166[4-7] (banc 1938); Grand River Tp., De Kalb County v. Cooke Sales and Serv., 267 S.W.2d 322, 325[3—5] (Mo.1954). See New City Hotel Co. v. Alcoholic Beverages Con. Com’n, 347 Mass. 539, 199 N.E.2d 184 (1964), where it was held that the Alcoholic Beverages Control Commission was not estopped to revoke a license after expiration of a four year period of non-use of the license (a statutory ground for revocation) because of approval of a renewal of the license after expiration of the four year period, saying, 199 N.E.2d 186[3,4], “The right of the public to have the liquor laws properly administered cannot be forfeited by the action of its officials.” See also: Paulus v. Smith, 70 Ill. App.2d 97, 217 N.E.2d 527, 532, et seq. (1966); 31 C.J.S. Estoppel § 142, pp. 710, 711; 28 Am.Jur.2d Estoppel and Waiver, § 122, p. 782, et seq., § 124, p. 787; and Anno.-Estoppel-Governmental Bodies, 1 A.L.R.2d 338, 341, §§ 3, 5. The present appellant liquor supervisor was bound to follow the legislative mandate of § 311.-060(1), supra, and his refusal to renew respondent’s 5% beer license did not therefore constitute “an illegal exercise of discretion which was arbitrary, capricious and unreasonable.”

By his Point II, respondent asks this court to consider as plain error the trial court’s entry of judgment against him on Count II of his amended petition. The claim here made is that the 1947 revocation was made without proper notice to respondent in violation of his rights to due process of law under the Fourteenth Amendment to the United States Constitution and Art. I, § 10, Const.Mo.1945. Appellant claims that this court may not consider the matter because respondent did not cross-appeal the judgment entered against him on Count II. Note that the judgment on Count I was in respondent’s favor. If otherwise validly presented, “The law is that a respondent may attack the erroneous rulings of the trial court for the purpose of sustaining a judgment in respondent’s favor. (Citing cases.)” Senter v. Ferguson, 486 S.W.2d 644, 648[6,7] (Mo.App.1972). The matter of the propriety of the trial court entering judgment against respondent may be considered, but it need not be considered under the plain error rule.

Assuming that respondent timely presented his contention that he had no notice of the 1947 revocation proceedings (i. e. it does not appear whether he presented the question to appellant before the petition for review was filed, but see 73 C.J.S. Public Administrative Bodies and Procedure § 215, p. 573), yet, under this record, the contention cannot aid respondent in sustaining his judgment. By his own exhibits, respondent presented documentary evidence that in an identical issue case, a 1953 proceeding in the Circuit Court of Cole County, Missouri, the court affirmed a denial of the issuance of a liquor license to respondent because a previous license had been revoked. In the course of that proceedings, the trial court found that in the 1947 revocation proceedings “the Supervisor of Liquor Control had jurisdiction of the subject matter, arising out of the legal charge, and jurisdiction of the person of the licensee.” (Italics added.) There was no appeal from the judgment and finding, and it stands as binding upon respondent. Point II is overruled.

The judgment is reversed and the case remanded with directions to affirm the order of the appellant denying respondent’s application for an original package 5% beer license.

All concur.


text:
    Genevieve W. SNIDER, Appellant, v. GREEN QUARRIES, INC., Respondent.
    No. KCD 27711.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Application to Transfer Denied May 5, 1976.

      J. Kirk Rahm, Hensley, Rahm & Rahm, Warrensburg, for appellant.
    Christian F. Stipp, Stipp & Thomas, Car-rollton, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Genevieve Snider appeals from an adverse judgment on her claim for Workmen’s Compensation benefits for the death of her husband, Ira Hubert Snider.

Snider was employed by Green Quarries. One morning a fellow employee of Snider drove a truck which overturned on the Quarry property. Snider was thereafter requested to drive this employee about twenty miles to the hospital in Carrollton. Part of Snider’s job was driving a pickup truck.

The fellow employee was not in any particular pain and was able to walk from his overturned truck to the pickup truck for the trip to the hospital. Snider did seem to be somewhat upset by the injury to his fellow employee. When they arrived at the hospital both Snider and the injured employee walked into the hospital.

Dr. Vinyard observed Snider and inquired if he were feeling all right and Snider replied he would be all right when he returned to work. On Snider’s return trip to the Quarry, he became ill and was thereafter taken to the hospital and then to Dr. Vinyard’s office. Dr. Vinyard determined Snider was having a heart attack and sent him back to the hospital. Snider died about two hours later from the heart attack.

In the hearing before the referee, Genevieve Snider produced Dr. Jones who testified in response to hypothetical questions that he believed Snider’s heart attack was caused by the stress produced by the injury to the fellow employee. Green Quarries produced the deposition of Dr. Vinyard who saw and treated Snider. Dr. Vinyard was unable to state that the injury to the fellow employee was the cause of the attack.

The referee found there was not sufficient evidence to prove that Snider’s death was a result of stress or unusual work. This finding was affirmed by the Industrial Commission and by the Circuit Court.

On this appeal Mrs. Snider contends the evidence of Dr. Jones was uncontradicted showing the stress brought on by the injury to the fellow employee and the transporting of him to the hospital caused the heart attack.

The duty of this court in a case such as this is well stated in Webb v. Norbert Markway Construction Company, 522 S.W.2d 611, 614[2—5] (Mo.App.1975). This duty and scope of review'may be summarized from that as follows:

(1) To determine if the award of the Commission is supported by competent and substantial evidence upon the whole record;
(2) The evidence and all legitimate inferences arising therefrom will be reviewed in the light most favorable to the award;
(3) This court may not substitute its own judgment for that of the Commission and may set aside an award only if there is not substantial competent evidence to support the award or if the findings of the Commission are clearly contrary to the overwhelming weight of evidence;
(4) If this court concludes the findings of the Commission are supported by competent and substantial evidence upon the whole record and are not contrary to the overwhelming weight of the evidence, the findings are binding, and matters of credibility and the weight to be given conflicting testimony are for the Commission.

In this case the referee and the Commission had the testimony of Dr. Vinyard who actually saw and treated Snider at the time of his attack and saw him earlier when he brought the injured employee to the hospital. Dr. Vinyard was unable to state the stress or anything connected with the injury to the fellow employee caused Snider’s attack. It is apparent the testimony of Dr. Jones is in conflict with the testimony of Dr. Vinyard, but, as pointed out above, the credibility of witnesses and the weight to be given conflicting testimony is for the Commission. This was the only evidence concerning the causation of the attack. The Commission resolved this conflict in favor of Green Quarries.

The Commission exercised its duty to pass on the credibility of the witnesses and the weight to be given their testimony. It is not within the province of this court to interfere with the findings of the Commission if they are supported by competent and substantial evidence.

The testimony of Dr. Vinyard constituted competent and substantial evidence to support the Commission’s finding. The judgment is affirmed.

All concur.


author: STEWART, Judge.

text:
    In re the MARRIAGE OF Ramona J. HEDDY, Petitioner-Appellant, and Lewis O. Heddy, Respondent.
    No. 36299.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 2, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied May 5, 1976.

      Ray A. Gerritzen, Gerritzen & Gerritzen, St. Louis, for plaintiff-appellant.
   STEWART, Judge.

The marriage of Ramona and Lewis Hed-dy was terminated by a decree of dissolution after 21½ years of marriage under the Dissolution of Marriage Act §§ 452.300 to 452.415. Three children were born of the marriage. Ronald was 17 years of age at the time of trial, Donald 15, and Randall 13. The parties stipulated that the marriage was irretrievably broken.

This appeal by petitioner, Ramona Hed-dy, questions the judgment of the trial court with respect to the finding that Ronald is emancipated; the allowances for child support and maintenance; and the division of marital property. We have not been favored with a brief by respondent. We reverse in part and affirm in part.

Mrs. Heddy had been employed during a portion of time that the parties were married, but by the time of trial she had been determined to be industrially disabled. As a result she receives $188.50 per month for herself and $155.00 for the children from “Social Security”. The exact nature of her disability was not developed.

The respondent’s net earnings for 1973 were $8589.76 and $3627.92 for the first 5 months of 1974. His monthly income is thus approximately $725.00.

Other facts pertinent to the issues raised will be discussed in relation to the issues.

The trial court made allowances of $20.00 per week each for the children, Donald and Randall, and granted custody to petitioner with certain rights of temporary custody in the respondent. The court made a finding that Ronald, age 17, was emancipated. The court awarded maintenance of $20.00 per week and $250.00 as attorney fees to petitioner. The court also made a division of marital property which will be discussed more fully hereafter.

In this court-tried case we are required to review both the law and the evidence giving due deference to the opportunity of the trial court to have judged the credibility of the witnesses. If, however, we are convinced that the trial court erred, it is our duty to enter such judgment as the trial court should have entered. Rule 73.01; In re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975).

Petitioner first contends that the court erred in finding that Ronald was emancipated. We agree. We have searched the pleadings and the testimony and do not find that the question of emancipation was ever an issue in the case.

Testimony respecting Ronald’s status is meager. The parties stipulated that petitioner have custody of the children. No exception was made with respect to Ronald. This clearly indicates that the parties did not consider Ronald to have been emancipated by them. The testimony respecting the needs of the children referred to the collective needs of the three sons, all of whom lived in the family home with petitioner. Ronald was a high school student. The only testimony with respect to any employment was the result of an unresponsive answer to a question:

“Q. Did you give him any money to buy that car with?
A. No. The boy is working. He is working at Bonanza and he turns quite a bit over to his father. What he does, he says he turns so much over to him.”

There is no evidence as to the amount of time he works, how -much he makes, to what if anything he does with any money that is left after he turns some money over to his father.

Emancipation has been defined as the “freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” 67 C.J.S. Parent and Child § 86, page 811. Emancipation may be accomplished by express or implied agreement but it is never presumed and the burden is upon him who would assert it. Specking v. Specking, 528 S.W.2d 448, 451[5,6] (Mo. App.1975).

We can find no evidence to warrant a finding that Ronald was emancipated.

The trial court having found that Ronald was emancipated made no allowance for his support. It is our duty, if possible, to enter such judgment respecting an allowance for Ronald as the trial court should have entered. In re Marriage of Powers, supra. There is evidence in the record of the need for food, clothing, shelter and other necessities to cover the needs of the three children as a group. The needs of the mother are stated separately. Under the circumstances of this case it would only unnecessarily lengthen this opinion to set out these details. Such information would have no precedential value. In this particular case the question is not so much a question of need as it is a question of ability to pay.

Of the elements to be considered in making an allowance for child support as provided by § 452.340 we do not have an accurate statement respecting Ronald’s financial resources. However, respondent did not contest the need of the three children as a group. The need exceeds the funds available including the allowance which petitioner receives from “Social Security”. Ronald is indebted to his father in the sum of $500.00 for an automobile for which respondent advanced the purchase price and for insurance for the car. Considering the circumstances of the parties and the overriding interest of bringing this litigation to an end we feel that $20.00 per week would be a reasonable allowance for the support of Ronald. Justice does not require that we remand this case for the purpose of a hearing on this issue. Rule 84.14.

The petitioner complains that the award of $20.00 per week maintenance and $20.00 per week each for the children Donald and Randall is inadequate. The amounts allowed for maintenance and child support are still matters within the sound discretion of the trial court. Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). As we have noted above the needs of the parties are greater than the funds available. As the children become emancipated or reach majority there may be more funds available to meet the needs of petitioner. Under the circumstances existing at the time the case was heard, considering the allowance that we have made for Ronald, we cannot say that the trial court abused its discretion.

Petitioner alleges that the award of $250.00 as attorney’s fees was wholly inadequate. Her attorney had been paid the sum of $775.00 through April 16, 1973. He testified that an additional $263.50 was due prior to trial and that a reasonable fee for his services from April 16, 1973 through the trial was $613.50.

The pertinent portions of Section 452.355 provide: “The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney’s fees, . . . ” The statute does not require the court to make an award of the full amount of the costs and of a reasonable attorney fee but a reasonable amount toward the costs and attorney’s fees. The amount to be awarded is within the discretion of the court. Specking v. Specking, supra at 452. We are not called upon to review the reasonableness of the value of the services of petitioner’s attorney but the reasonableness of the award considering the circumstances of the parties. Under that standard we cannot say that the court abused its discretion.

The petitioner next complains of the division which the court made of the marital property.

The Dissolution of Marriage Act has made major changes in family law in Missouri. One of the most significant changes is the concept of marital property and the power given to the court under the mandate of the statute that upon dissolution of marriage the court “shall divide the marital property.” § 452.330.

All of the assets of these parties are marital property. The principal asset is a five room brick residence which is carpeted and fully furnished. The value of the furniture was not estimated. The house had been purchased in about 1964 for $13,900.00, the parties added central air conditioning and they had some excavating work done to the yard. Petitioner, Mrs. Heddy, estimated the value of the real property to be $16,000 to $17,000. Respondent, Mr. Heddy, placed a value of $22,000 upon the property. Mr. Heddy who was living apart had purchased some furniture for approximately $400.00. Respondent was driving a 1973 Pontiac Catalina for which he paid about $4,000 and on which he still owed approximately $1,800. Petitioner was driving a 1966 Chrysler automobile.

The court’s decree granted petitioner the right to live in the home until the youngest child attains the age of 21 years, until petitioner remarries, or until she no longer resides in the home with any of the children, whichever event occurs first.

The court found the home to have a value of $19,000 with an equity of $9,000, and that respondent’s net equity after considering the cost of sale was $4,000. The court then decreed that upon termination of petitioner’s right to reside in the home the house be sold at which time respondent receive the sum of $4,000 or 50% of the net amount realized after deduction of the “present mortgage”, whichever is less, and that petitioner receive the balance. The decree further ordered that petitioner make all payments on the “mortgage” so long as she resides in the home. The payments on the notes are $107 to $108 per month. The court also decreed that respondent have the Pontiac automobile subject to the incum-brance, and the other personal property then in his possession; and that petitioner have the 1966 Chrysler and all of the personal property then in her possession.

The petitioner contests only the provisions of the decree respecting the division of the real property. She first objects to the finding of the court that the value of the real property was $19,000. She claims there was no evidence that the value was $19,000. There was testimony by petitioner that the value of the property was $16,000 to $17,000 and by respondent that the value was $22,000. The owners of property may testify as to their opinion of the value of the property. State v. Northeast Building Co., 421 S.W.2d 297, 301[3] (Mo.1967). It was the obligation of the trier of the facts to make the necessary findings. The court was not bound by the testimony of either witness. The finding was within the range of the testimony and clearly cannot be said to be erroneous.

She also contends that the court ignored subsections one and three of Section 452.330 in making the division of property.

As related to the contentions of petitioner § 452.330 provides:

“ . . . the court . . . shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:
(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse;
(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and
(4) The conduct of the parties during the marriage.”

The factors enumerated are not exclusive. The statute has given to the trial court great flexibility and far reaching power when dividing marital property in order to accommodate the needs of the parties upon dissolution of a marriage. There is no formula respecting the weight to be given to the relevant factors which a court may consider in carrying out the mandate of the statute.

The petitioner was employed for about nine years “off and on” during the marriage and thus both parties contributed to the property they had acquired. They have no separate property. The court gave to petitioner the right to live in the house with the children for a limited time upon payment of the amounts due monthly on the note given in payment of the house. If she could find a more economical method of providing a home she can affect the sale knowing that she will receive no less than one-half of the net realized upon the sale of the property and possibly more if the net value exceeds $8,000.

The order which the court made constitutes the present division of the marital property. We cannot say that the court abused its discretion in this case.

We have reviewed all other matters discussed by petitioner but find no prejudicial error.

The cause is remanded to the trial court for entry of judgment for support of Ronald in the sum of $20.00 per week effective as of the date of the original decree. In all other respects the judgment of the trial court is affirmed. The trial court has retained jurisdiction, as it may, for the purpose of considering further allowances of costs and attorney’s, fees for services rendered on appeal. Nixon v. Nixon, 525 S.W.2d 835 (Mo.App.1975).

CLEMENS, P. J., and KELLY, J., concur.

      . All Statutory References are to R.S.Mo., Supp.1973, unless otherwise indicated.

      . “In a proceeding for nonretroactive invalidity, dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including:
      (1) The father’s primary responsibility for support of his child;
      (2) The financial resources of the child;
      (3) The financial resources of the custodial parent;
      (4) The standard of living the child would have enjoyed had the marriage not been dissolved;
      (5) The physical and emotional condition of the child, and his educational needs; and
      (6) The financial resources and needs of the noncustodial parent. Laws 1973, p. 470, § 9, effective Jan. 1, 1974.”


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Keith SCOTT, Defendant-Appellant.
    No. 36989.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 9, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied May 5, 1976.

      Cornelius Lane, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction for second degree murder. § 559.020 RSMo 1969. After the jury failed to agree on punishment, the trial court sentenced the defendant to 35 years imprisonment. We affirm.

In the early evening of April 23, 1974, a St. Louis City policeman and a St. Louis City deputy sheriff drove to a public housing project in north St. Louis. The two men, both of whom were off-duty and attired in civilian clothes, were searching for a young woman who had forfeited bond. The two men separated, with the policeman going to the eighth floor of an apartment building.

Shortly after 7:30 p. m. there was a disturbance in the eighth floor hallway. An eyewitness saw the off-duty policeman backing down the hallway, followed by the defendant who was pointing a pistol at the policeman. The policeman told the defendant: “hold it, man, you got me wrong, I am a police officer.” The policeman was waving a black billfold in his right hand, which presumably contained his police identification. The witness was positive the policeman had never reached for his own weapon. Nevertheless, the defendant shot and mortally wounded the officer.

The eyewitness recognized the assailant and notified police, who arrested the defendant about 11:20 p. m. that same night. The witness identified the defendant as the assailant both at a lineup the night of the shooting and at the trial.

Defendant’s first contention is that the trial court erred in refusing to admit into evidence a videotaped statement made by the defendant to the police.

Shortly after 3 a. m. on April 24, 1974, the police obtained defendant’s consent to make a videotaped statement. In this twelve-minute statement the defendant detailed almost the exact same facts he later testified to at the trial.

The defendant filed a pre-trial motion to suppress the videotaped statement, but the trial court denied the motion after viewing the videotape. At the trial the state did not introduce the videotape into evidence. But the defendant tried to admit the videotape into evidence immediately after the defendant himself had testified, in order to impeach some of the testimony of the state’s eyewitness. The trial court refused.

The defendant contends the videotaped statement should have been admitted into evidence because it was “not marked by the usual hearsay dangers,” and was relevant and competent to the issues involved in the case. We disagree.

The general rule is that litigant cannot introduce into evidence hearsay statements he has made with reference to the facts of the case. The exception to this hearsay rule is when the statements are a part of the res gestae. State v. O’Neal, 436 S.W.2d 241 (Mo.1968). The term “res ges-tae” refers to those exclamations and statements made by either the participants, victims or spectators to a crime immediately before, during, or immediately after the commission of the crime. The circumstances must be such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion. There must have been no opportunity for the declarant to deliberate and to fabricate a false statement. State v. Hook, 432 S.W.2d 349[1] (Mo.1968).

The videotaped statement in this case clearly does not fall within the res gestae exception to the hearsay rule. The crime was committed shortly after 7:30 p. m.; the defendant was arrested about 11:20 p. m.; the videotape was recorded from 3:07 a. m. to 3:19 a. m. the next morning. The defendant had almost eight hours to reflect on the evening’s happenings before he made the videotaped statement. The statement lacks the spontaneity that is the key to the admission of such hearsay. Here the defendant’s reaction was not to the crime itself, but was due to the influence and questioning of the police who intervened between the crime and the videotaped statement. State v. Lewis, 526 S.W.2d 49[6] (Mo.App.1975).

In his appellate brief the defendant apparently concedes that the videotaped statement was not a part of the res gestae. But defendant contends the hearsay objections to the videotape are nullified in this case because the defendant took the witness stand and could have been cross-examined concerning the videotaped statement.

This argument overlooks four factors. First, at the trial the defendant testified and his recollection of the circumstances surrounding the crime was almost exactly the same as contained in his videotaped statement. The admission of the videotaped statement immediately after the defendant’s own trial testimony would have subjected the jury to a repetition of the defendant’s version of the essential facts. In this respect the defendant maintains the videotape was relevant and competent evidence because it would have shown the jury “the candor and demeanor of the accused shortly after the arrest.” However, the jury was able to observe the defendant’s demeanor in person when the latter testified at trial and repeated essentially the same assertions he had made in the videotape.

Secondly, the trial court had studied the videotaped statement during a pre-trial hearing. When the defendant at the trial stated he intended to introduce the videotape to impeach the eyewitness’s testimony, the trial court correctly noted that the videotape statement was consistent with the state’s evidence. Thirdly, pther cases treating this same issue had excluded such statements when the defendant-declarant testified and could have been cross-examined concerning the statement. See, e. g., State v. Hemphill, 504 S.W.2d 62[3] (Mo.1974); State v. O’Neal, supra. Finally, we doubt whether even the most stringent cross-examination concerning the circumstances and content of the videotape would be sufficient to convince the trial court that the defendant had accomplished his burden of showing the hearsay statement was made under such circumstances as to assure its truth. State v. O’Neal, supra.

In his supplemental brief the defendant cites a federal case in support of his contention that the videotaped statement should have been admitted into evidence. Hendricks v. Swenson, 456 F.2d 503 (8th Cir.1972), was a habeas corpus proceeding instituted by a prisoner who had been convicted of first degree murder in 1969 by a St. Louis County Circuit Court. See State v. Hendricks, 456 S.W.2d 11 (Mo.1970). The prisoner alleged the trial court should have suppressed the videotape recordings of statements he made to the police and which were shown to the jury because the statements were obtained by mental and physical coercion.

The majority found the videotaped statements had been knowingly and voluntarily made. The dissent noted that videotapes could easily cause defendants great harm because they tend to cast prisoners’ physical characteristics and mental processes in a bad light. The majority replied to this argument by declaring that videotapes actually protect defendants’ rights by accurately reproducing the prisoner’s confession and by showing the jury whether the prisoner was coerced into making the statement.

The defendant relies on the federal court’s espousal of videotapes as advancements in the field of criminal procedure and as protections for defendant’s right. But we believe Hendricks is distinguishable. The federal case dealt solely with the state’s introduction of a videotape as a confession, i. e., an admission by a party-opponent. The federal court did not treat the hearsay objections surrounding a declar-ant’s desire to introduce his own pre-trial statement into evidence. The videotape in our case was to be introduced not to show whether the defendant was coerced, but rather to demonstrate both the defendant’s demeanor and that his videotaped statement was allegedly inconsistent with the state’s evidence.

We believe the trial court correctly excluded the videotape from the evidence.

The defendant’s second point on appeal is that the trial court erred in giving the following instruction to the jury before its deliberations:

“If you unanimously find the defendant guilty you should fix his punishment. If however, after due deliberation, you find the defendant guilty but are unable to agree upon his punishment, you will complete the verdict form so stating, and in that event the Court will fix the punishment.
“You must bear in mind that under the law it is the primary duty and responsibility of the jury to determine whether the defendant is guilty or not guilty of the offense and if he is guilty to fix the punishment.”

This instruction is essentially the first and fifth paragraphs of MAI-CR 4.50. “Notes on Use” 1 and 3 following the instruction stress its discretionary nature. The giving of such an instruction was approved by the Missouri Supreme Court in the landmark case of State v. Brown, 443 S.W.2d 805[6—7] (banc 1969). Since that time the instruction has been approved in numerous other eases. See State v. Fisher, 504 S.W.2d 281[4—5] (Mo.App.1973), and the cases cited therein.

Defendant contends the instruction was irrelevant in this case “because there was no indication or reason to believe that the jury would have any trouble in assessing a penalty if they found the defendant guilty.” The trial court, however, correctly recognized that this was a case where the jury could easily find guilt but fail to agree on punishment. Here (1) the defendant was only eighteen years old; (2) the defendant admitted the shooting; (3) the defendant had never before been arrested or convicted; (4) the circumstances leading up to and surrounding the shooting were somewhat unusual. The fact that the jury could not agree on punishment merely supports the trial court’s exercise of discretion in this respect.

The defendant next contends the instruction was prejudiced because “it influenced the jury to the extent that they felt no compunction in shifting the burden of assessing a penalty to the court once they had found the defendant guilty of murder in the second degree.”

This argument is mere speculation concerning the psychology of the individual juror and the content of the jury’s deliberations. The defendant has presented no evidence whatsoever that the instruction caused the jurors to shift their burden of assessing punishment to the trial judge. The landmark case in this area countered this same argument by noting that it would be illogical to trust the jury to determine a defendant’s guilt or innocence and at the the same time be unwilling to trust the jury to follow an instruction with respect to procedure in case it should agree on guilt but not on punishment. State v. Brown, supra, at 811.

We conclude the trial court did not abuse its discretion when it gave this instruction.

The defendant’s final contention on appeal, which also concerns the issue of punishment, is that the trial court erred in denying his motion for a mistrial because of the prosecutor’s allegedly improper comment during final argument. Defendant claims the prosecutorial comment “encouraged and invited the jury to avoid its responsibility to determine punishment.”

At the end of his closing argument the defense counsel told the jury: “I see no purpose for conviction of this young man and sending him down to the penitentiary and letting the doors of the penitentiary close behind him.” The prosecutor’s objection was sustained, and the court instructed the jury to disregard the statement.

Shortly thereafter the prosecutor remarked to the jury: “If you will look over the instructions, penitentiary, probation that is not for you to consider, if the defendant is found guilty it is not for you to determine whether he gets probation, parole or serves time. That is not for you to consider.”

The trial court promptly and unequivocally sustained the defendant’s objection and instructed the jury to disregard the prosecutor’s statement, but the trial judge denied the defendant’s request for a mistrial. We do not believe the trial court abused its discretion in refusing to grant a mistrial. Whether a mistrial should be granted for improper argument is a matter for the trial court’s discretion. State v. Knighton, supra. Certainly not every instance in which a prosecutor exceeds the limit of legitimate argument is cause for declaring a mistrial. State v. Perryman, 520 S.W.2d 126 (Mo.App.1975). Having carefully examined the entire record, we believe the trial court’s action in sustaining the objection and instructing the jury to disregard the statement was sufficient to cure any possible error. The trial court observed the incident and was in a better position than an appellate court to evaluate the situation and determine the corrective measures. State v. Knighton, supra.

The judgment is affirmed.

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

      . At the trial the defendant testified as follows. The defendant stated the housing project that evening was alarmed by rumors that a child-molester was in the vicinity. When the defendant heard these rumors, he went to the eighth floor to find his two younger brothers who were playing there. The defendant had a gun with him. When he reached the eighth floor he heard some shots. Then some children ran by, screaming “There he is; that’s him.” Defendant said he then saw the victim approaching. The defendant was scared because he assumed the victim was the child-molester. The off-duty policeman told him to get out of the way but did not identify himself as a police officer. When the victim reached toward his waist, the defendant shot him, even though he admitted the victim had nothing in his hands at the time.


author: NORWIN D. HOUSER, Special ■ Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward N. McNEAL, Defendant-Appellant.
    No. 36680.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 16, 1976.
    Robert O’Blennis, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special ■ Judge.

Edward Norvel McNeal, convicted of second degree burglary and committed to the department of corrections for three years, has appealed on the sole ground that the evidence was insufficient to support a conviction; that the State produced only circumstantial evidence to support its theory of the crime and the evidence failed to preclude all reasonable theories of appellant’s innocence.

The State’s evidence tended to show the following: Edward Gardner, a plumbing contractor in business at 4398 Olive Street in the City of St. Louis, closed his business at 5 p. m. on Friday, August 9, 1974. He locked and secured the premises by locking the two front doors with keys and covering them with padlocked chain link fence. The rear door was barred and secured in such a way that it could not be opened from the outside. There were two doors to the upstairs level of the building and two doors leading to the downstairs level. There was a skylight in the upstairs portion of the building. When Mr. Gardner left the building the skylight was intact and in place. The skylight was not visible from alley or street. Access to the skylight could be had by dropping down from a window in an adjacent hotel building, which had been vacated. On Saturday, August 10, 1974, a video alarm system notified police headquarters that two people were trying to break into the plumbing store. Police officers Nowicki and Johndrow, cruising in a patrol car, were notified at 3:05 p. m. to go to 4398 Olive to answer the call from the alarm company. They parked in the alley, entered the vacant hotel, and went to the second floor area. From the vacant hotel they observed the skylight in the roof of the plumbing supply building and saw that it had a hole in it. Shortly thereafter they observed Officer Foerster emerging from the backdoor with defendant in custody. They entered the plumbing supply house through the hole in the skylight and searched the premises for other suspects, but found none. In their search they observed a piano in vacated living quarters on the second floor of the plumbing supply building. It belonged to a schoolteacher named Mrs. Leverette, who formerly lived in those rooms, and who had not removed it when she vacated the premises.

Patrolman Roy Foerster, cruising in his patrol car, alerted, proceeded to 4398 Olive Street in response to the call, arriving at that address shortly after 3:05 p. m., parked, and went to the rear door in the alley. The door was closed. The officer pushed the door open and entered the plumbing shop. There he saw defendant, who was standing on a door ledge above the door at the foot of the stairs leading to the second floor. Defendant was wearing gloves. He did not run. He had no burglar tools on his person. He made no statement to the arresting officer or to the other officers. Defendant was placed under arrest, ordered “to come down,” and transported to the Ninth District Police Station. An interior door led to the building proper. There were footprints or marks on the interior door. The shoes defendant was wearing were of the type that would leave a footprint like those found on the door. The glass of the skylight was broken. The hole in the skylight was large enough for a man to go through. A ladder was standing against an inside wall, so positioned that it could be used to enter or exit through the hole in the skylight. Boxes of copper plumbing fittings and plumbing fixtures, taken from shelves on which they were regularly stored as plumbing supplies, were on the floor at the base of the ladder. Ropes were attached to the boxes, so that the boxes of plumbing supplies could be hoisted up through the skylight. Neither the ladder, boxes, nor rope belonged to Mr. Gardner, the plumbing contractor. When Mr. Gardner left the building the previous evening the plumbing fixtures and fittings were on the shelves and not on the floor in boxes. Mr. Gardner did not know defendant and had not given him permission to enter the building.

Defendant took the stand, admitted that he was on the premises at the time in question, stating that he arrived there at 3 p. m. He accounted for his presence by testifying that he entered the rear door with some other people for the purpose of moving the piano in the vacant apartment above the plumbing shop; that he was going to put the piano on a truck and take it to an antique dealer. According to defendant the rear door to the plumbing supply company building was open and he entered through that door. He said he was leaving the building when the officer entered, drew a gun and arrested him. He claimed he told one of the other officers that he had come there to move the piano. He said he was wearing smooth soled shoes which would not have made the kick marks seen on the door. Defendant did not identify or produce the other people he claimed were with him, nor did he account for their absence when the officers searched the premises. Defendant did not identify the owner of the piano or the antique dealer to whom he said he intended to take the piano. He did not produce anyone with whom he had made arrangements to move the piano on this Saturday afternoon. There was no evidence that there was a truck in the alley or thereabouts and defendant did not verify the existence of or identify a truck. Defendant had previously plead guilty to tampering with an automobile.

The foregoing evidence was sufficient circumstantial evidence to submit the issue of burglary to the jury. From the evidence the jury could find that a burglary occurred; that the burglary was in progress when the officers arrived and that the officers interrupted and prevented the stealing of the boxes of plumbing supplies; that the burglary had been carefully planned (entry and exit through the broken skylight, via the vacant hotel building, the skylight not being visible from street or alley) in such a manner that it would go unobserved; that defendant, present at. the scene of the crime, attempted to hide himself by standing on the ledge; that the gloves defendant was wearing on that August afternoon were worn to prevent leaving fingerprints; that defendant was caught on the premises as he was about to ascend the ladder, pull the loaded boxes up through the skylight and make his exit; that he was acting alone; that the other people he mentioned were figments of his imagination; that by failing to produce these people, failing to produce the owner of the piano and the antique dealer, and failing to establish the existence of a truck, the jury was authorized to conclude that defendant’s explanation of his presence was a fabrication.

Defendant argues that there is one item of evidence in the State’s case which is not consistent with logic, namely, that when Officer Foerster arrived on the scene he was able to open the rear door and enter the building from the alley. Defendant brands it as unreasonable to assume that someone who had gone to the trouble to bring a ladder and enter by the concealed skylight would bother to go to the trouble of removing bars and obstructions from a door which when opened and used would not conceal his activity; that if he were going to use the concealed exit through the skylight he would not use the rear door exit; that an explanation which is not unreasonable is that the rear door must have been opened by the real burglar — someone else — in that person’s search for valuables; that “[i]f we take all the evidence and assume it is all true, there is a very strong suspicion that the defendant could have been a burglar but we feel that the evidence, being so illogical as to the theory of burglary, equally supports the defendant’s reason for being in the store. The defendant’s theory is no more unreasonable than that of .the State. Therefore, the State has failed to ‘preclude any reasonable theory of the defendant’s innocence.’ State v. G’Sell, 497 S.W.2d 882 [Mo.App.] (1973).”

In making this contention defendant overlooks the rule that in adjudging a motion for judgment of acquittal the facts in evidence and all favorable inferences reasonably to be drawn therefrom “must be considered in the light most favorable to the state, and all evidence and inferences to the contrary must be disregarded.” State v. Jordan, 495 S.W.2d 717, 719 (Mo.App.1973). And see State v. Aguilar, 429 S.W.2d 754, 756 (Mo.1968). Defendant would have this court ignore this rule and view the evidence in the light most favorable to the losing party. This highly incriminating evidence, viewed in the light most favorable to the prevailing party, was amply sufficient to support the verdict of guilty.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.