author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Francis OLDS, Defendant-Appellant.
    No. 60365.
    Supreme Court of Missouri, en banc.
    Sept. 12, 1978.

      J. Martin Hadican, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   RENDLEN, Judge.

In this case, transferred here after opinion in the Court of Appeals, St. Louis District, defendant appeals his conviction on four counts of robbery in the first degree with a dangerous and deadly weapon, § 560.135, RSMo 1969. He was sentenced by the jury to imprisonment for terms of thirty years on each of Counts I and III and to twenty-five years on each of Counts II and IV, which were ordered by the court to run concurrently. Because of error in the admission of testimony concerning defendant’s oral confession following his arrest, we reverse and remand.

On the afternoon of April 8,1975, defendant with two armed accomplices forcibly entered the Clayton home of Mrs. Jerry James and for approximately fifty-five minutes ransacked the house, taking money at gunpoint from the persons there including Mrs. James, her son, the tutor, and the maid. Leaving the four victims bound hand and foot on the floor of the home, the gunmen fled. Abundant testimony placed defendant at the scene and described his part in the crimes.

The following day, acting on apparently reliable information (only a marginal showing thereof appears in the record) two police officers from the City of Clayton, one of whom was Francis Koenig, with an officer from the St. Charles City Police Department and a deputy from the St. Charles Sheriff’s Department, arrested defendant and one Paul Killian in St. Peters, Missouri. At the arrest scene, defendant, who had been advised of the charges and been given the Miranda warnings advising him of his constitutional rights, denied involvement in the crime. He was taken to the St. Charles County Sheriff’s Office and there questioned; thence to the police station in Clayton where the interrogation continued. It is undisputed that defendant signed a waiver of rights form at about 8:10 p. m. in the St. Louis County Jail following more than two and one-half or four hours of questioning, depending on whether the arrest occurred at 4:00 p. m. as testified by defendant or at approximately 5:30 p. m., the time fixed by the police. Shortly after signing the waiver form, defendant confessed the crimes.

Olds moved to suppress his incriminating statements, the first of which was made immediately after he was taken into custody and while being transported to the St. Charles County Jail. That statement was an off-hand remark concerning his knowledge of the victim’s Great Dane dog apparently present at the scene of the crime. The second was a statement or series of admissions made in response to questions concerning the crimes made at the St. Louis County Jail sometime after signing the waiver form at 8:10 p. m. on the day of arrest.

We first consider defendant’s contention that the court erred in overruling his motion to suppress and receiving in evidence the testimony of Officer Koenig relative to defendant’s statement about the dog. Defendant maintains that statement was the fruit of a warrantless arrest made without probable cause, in violation of his rights under the fourth, fifth and sixth amendments to the United States Constitution as made applicable to states by the fourteenth amendment to the United States Constitution. Because of the sketchy testimony concerning the information on which the officers acted in making the arrest we shall assume arguendo it was without probable cause. As noted above, defendant was arrested in St. Peters, Missouri with one Paul Killian and immediately after receiving the Miranda warnings was driven with Killian to the St. Charles County Jail. During that trip the statement was made. Officer Koe-nig testified at the suppression hearing to the following circumstances:

Q. . could you set the scene for the Court as to who you were talking to and what your conversation was?
A. Yes, sir. We were in Deputy Sheriff Stephen’s police car; we were proceeding to the St. Charles County Sheriff’s Office. I was talking to the deputy Sheriff in relation to a large Great Dane dog— ******
A. As I was saying, I was talking to the deputy with regard to a Great Dane that was at the residence of the victims in this incident. I mentioned that that dog was huge, that he weighed approximately 200 pounds, and I said, ‘But that was the friendliest dog I’ve ever seen.’ At that time Mr. Killian stated, ‘That sure was the friendliest dog I’ve ever seen,’ and John Olds agreed with him. (Emphasis ours.)
Q. So at that time then when Mr. Olds spoke up it wasn’t in connection with any questions directed to him?
A. No, sir.
Q. It was concerned with a dog that was at the residence that was robbed?
A. Yes, sir.

At trial similar testimony was admitted over defendant’s objection. The statement appears to have been made quite voluntarily after defendant had been warned of his right to remain silent and was not in response to any interrogation. By volunteering, defendant waived his right (as to this statement) to remain silent under the fifth amendment of the United States Constitution and art. I, § 19 of the Missouri Constitution, and no violation of Miranda occurred. See State v. Johnson, 530 S.W.2d 690 (Mo. banc 1975); Boyer v. State, 527 S.W.2d 432 (Mo.App.1975). However, to support his contention defendant would also rely on the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), alleging the violation of his rights under the fourth amendment of the United States Constitution and art. I, § 15 of the Missouri Constitution. Such reliance is misplaced. In holding that an accused’s incul-patory statements were inadmissible “fruit” of an illegal arrest, the Court in Wong Sun refused to apply a “but for” test which might have compelled the exclusion of all such statements following an illegal arrest. 371 U.S. at 487-88, 83 S.Ct. 407. Instead the Court stated that admissibility of such statements should rest on a determination of “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Emphasis ours.) Id., quoting Maguire, Evidence of Guilt 221 (1959). One of the “sufficiently distinguishable means” of obtaining untainted evidence is through a statement “sufficiently an act of free will to purge the primary taint . . . .” Id. at 486, 83 S.Ct. at 416.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), also cited by defendant as authority for his contention, the Court ruled that the giving of Miranda warnings after an illegal arrest cannot “alone and per se” assure in every case that a suspect’s subsequent confession is “sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” 422 U.S. at 603, 95 S.Ct. at 2261. In Brown, the police had exploited the illegal arrest, after the Miranda warnings had been given, by confronting the defendant' with certain information and asking him if he wanted to talk about the crime. The Court had no reason to and did not adopt a “but for” test in considering the taint from an illegal arrest.

We find the officer’s statement made in the ear when driving to St. Charles concerning the victim’s dog does not rise to the level of exploitation of the illegal arrest against which the Wong Sun principle is directed. The statement was not a question addressed to the defendant or his companion. No questioning had yet taken place. Absent exploitation of the illegality, the causal link between defendant’s arrest and his statement was sufficiently broken to permit its admission in evidence and we decline defendant’s invitation to invoke the “but for” rule similarly refused in Brown and Wong Sun.

As this Court noted in State v. Johnson, 530 S.W.2d 690, 693 (Mo. banc 1975), “The criteria enunciated in Brown v. Illinois, supra, with respect to confessions following an illegal arrest was the law of this state prior to Brown and was articulated and applied in the earlier Johnson case and in State v. Fair, 467 S.W.2d 938, 943 (Mo. banc 1971).”

Finally, the factors suggested by Brown for consideration in determining the extent of the taint must be weighed. Miranda warnings had already been given. The temporal proximity of the statement to the arrest and the absence of intervening circumstances in this case are balanced by the absence of any attempt to exert pressure on the defendant on the way to St. Charles. In short, defendant’s inculpatory statements volunteered as an affirmance of the officer’s observation concerning the dog was sufficiently an act of free will to purge the alleged primary taint of the arrest and testimony concerning the “dog statement” was properly admitted in evidence.

We turn now to the oral confession elicited at the St. Louis County Police Station. Defendant in his motion to suppress charged the confession (consisting of a series of oral questions and answers), was taken in violation of defendant’s federal fourth, fifth and sixth amendment rights, as well as his rights under Mo.Const., art. I, §§ 15, 18(a) and 19. At the suppression hearing defendant testified unequivocally that he told his interrogators in the Sheriff’s Office at St. Charles and later in the St. Louis County Police Station prior to-signing the waiver form that he wished to remain silent and wanted to contact a lawyer but was told that he must wait until the interrogators were through with their questioning. Defendant admitted that he had been told “I had the right to remain silent and I had a right to contact a lawyer” but repeatedly maintained that his several requests to contact an attorney were .ignored and that questioning concerning the crime continued. At one point he stated that he not only asked to contact an attorney but also to call his parents and again was told that “. . as soon as they were through I would be able to contact my lawyer then.” The interrogation involved three armed officers in St. Charles and the same number in a small interrogation room during most of the time in the St. Louis County Jail. A portion of defendant’s testimony concerning the St. Charles interrogation is as follows:

Q. And after you told the officer that you wanted to talk to a lawyer, that you didn’t want to answer questions, were you then asked further questions about the alleged crime?
A. Yes.
Q. . [W]hat was your response when you were asked further questions about this alleged crime?
A. Same as before, that I wanted to contact my lawyer.
Q. What were you told on that occasion?
A. That I wouldn’t be able to contact them [sic] until later on.
Q. Then how long were you kept in St. Charles County?
A. Approximately two hours.

At the St. Louis County Jail he was again given the Miranda warnings whereupon the questioning concerning the crime resumed. As to this period of interrogation defendant testified: “I explained that I wanted to contact my parents or an attorney.”

Q. During that time were questions asked you about this alleged crime, during the entire time [i. e., the hour and a half]?
A. Yes, sir.
Q. During that time while questions were being asked of you, what was your response during that entire time?
A. That I would like to contact my lawyer.
Q. Did you answer any questions during that time?
A. No, I did not.

He was then taken to another interrogation room, where a different officer continued the questioning and this testimony appears:

Q. Was he one of the officers who had been in the other room with you?
A. No, sir.
Q. Now when you got into this other room then, did this officer then ask you some further questions about the alleged crime?
A. Yes, sir.
Q. And what was your response to the questions he asked you?
A. That I would like to contact my lawyer before I answered.
Q. What did he tell you?
A. He told me that after he was through I would be able to contact anybody I wished.
Q. Then after you told the officer that, what you just said, did he persist in asking further questions about the alleged crime?
A. Yes, sir.
Q. And then did he say anything else to you about the questions he was asking you or you answering them?
A. Yes, sir.
Q. What did he say about that?
A. He said that if I was — he told me that he had already had one statement written against me, if I was to answer all his questions that it would go a lot easier on me. •
Q. Then did he ask you some questions about the alleged crime?
A. Yes, sir.

Thereafter a waiver of rights was signed at about 8:10 and arresting Officer Koenig, the only State’s witness at the pretrial suppression hearing, testified that Olds had been at the Clayton Police Station for approximately one hour prior to signing the waiver. Thus defendant was under interrogation during much of the two and one-half to four hour custodial period (depending on the time of arrest) and thereafter confessed.

By way of rebuttal in the suppression hearing Officer Koenig, testifying concerning the confessions, stated that he did not interrogate the defendant at St. Charles but admitted that he was not with the defendant at all times while he was being “processed through there.” When asked the question, “Do you know whether or not he was questioned concerning the Clayton robbery by the St. Charles police” he answered only that, “To my knowledge, I don’t recall that he was.” He also stated that he did not request anyone to interrogate defendant. Koenig related that the defendant was conveyed to the police station in Clayton and he was at the station until about 8:10 p. m. when defendant finally signed the Miranda waiver form.

Significantly, Koenig, who was called to the stand immediately following defendant and who testified that no threats nor promises of leniency were made by any of the three police officers in the room with the defendant at the Clayton Police Station, did not deny Olds’ testimony concerning his ignored requests to remain silent and to obtain counsel, or his testimony that the questioning continued unabated thereafter. We find nothing in Koenig’s testimony which expressly or inferentially contradicts defendant’s claim that he asserted his fifth and sixth amendment rights. These matters simply were not touched on in the suppression hearing testimony offered by the State. The court at the close of the hearing made no findings of fact, but stated, “Motion to Suppress will be overruled.”

During trial, at the court’s suggestion, further evidence was heard outside the jury’s presence on the question of voluntariness to determine admissibility of the evidence concerning the dog statement and the confession. The State was thus afforded additional opportunity to bolster its position and refute the earlier testimony of defendant but again offered only the testimony of Koenig. In this voir dire, Koenig once more testified that defendant had been advised of his constitutional rights but did not deny defendant’s previous testimony that he had requested an attorney and had asserted his right to remain silent during interrogation before signing the waiver and confessing the crime. Nor did Koenig deny that the questioning continued after defendant’s assertion of his fifth and sixth amendment rights. He merely related that after the questioning, defendant at 8:10 p. m. signed the waiver form and thereafter made certain incriminating statements in response to interrogation by the officers. Immediately following this testimony and before recalling the jury the court made these findings:

[T]he court finds that the statements made while defendant was being transported to the St. Charles County Sheriff’s office and later the statement made at the Clayton police department were made after he had been warned of his Miranda rights and that they were voluntarily made and were not the result of any force or duress used against him, therefore, the court will admit them in evidence. (Emphasis added.)

Testimony concerning the statement and the confession was promptly offered and admitted in evidence.

Our resolution of defendant’s challenge to the court’s action admitting the confession requires an answer to these questions: (1) were the trial court’s findings sufficient to dispose of the issues raised by defendant’s motion to suppress and (2) was the finding of voluntariness supported by the record. As to the former, it might be argued that implicit in the trial court’s general finding of voluntariness and absence of force or duress, was a determination that defendant did not request counsel or assert the right to remain silent. However, the trial court’s general finding does not expressly address the issue of whether defend^ ant affirmatively raised his fifth and sixth amendment rights.

It has been stated that “[a]t a minimum, the trial court’s findings on essential factual issues must, in the language of Jackson v. Denno, [378 U.S. 368, 378 n. 8, 84 S.Ct. 1774, 12 L.Ed.2d 908], be ‘ascertainable from the record.’ ” State v. Monteer, 467 S.W.2d 48, 52 (Mo. banc 1971). This is not to say that as the trier of this mixed question of law and fact the court in its discretion could not have determined that defendant’s testimony was not worthy of belief and settled the issue for purposes of the record and determination on this appeal, but if failed so to do. In Monteer, when considering the record in a somewhat similar fact situation, this Court was willing to draw certain inferences to support the chai-lenged suppression hearing findings of the trial court. That case involved conflicting testimony in which the state offered evidence contrary to that of defendant’s on the factual issue under consideration and which supported such an inference. There the factual issues were (1) whether Miranda warnings had been given prior to the questioning of defendant, and (2) whether the confession had been procured through acts of coercion, promises or threats by the interrogating officers.

Testimony was presented by the defendant to the effect no warnings had been given and that he had been coerced, however, extensive testimony was presented by the State to the contrary on both questions. The trial court, in its findings, held that the confession was voluntary and not procured by coercion, threats or promises and this Court held that though there was no specific findings that Miranda warnings had been given, the trial court’s finding was sufficient because it “necessarily implied the finding that the defendant’s version [of the evidence, i. e., that there were no warnings] was rejected.” 467 S.W.2d at 54. Thus abundant State’s evidence supported the inference that the trial court had indeed chosen between the conflicting testimony, believing that of the State’s witnesses and disbelieving that of defendant. Such is not the case here. The only testimony concerning the request to remain silent and for assistance of counsel is the affirmative testimony of defendant that he made such requests.

In State v. Alewine, 474 S.W.2d 848, 852 (Mo.1971), this Court stated:

When a defendant testifies, as here, that he did state a desire to remain silent and demanded an attorney, the trial court must make a factual determination resolving the issue . . . . The credibility of the witnesses is for the trial court to determine.

In Alewine, a finding was made by the trial court that “defendant of his own free will had waived all such rights and agreed to give an oral statement without any attorney being present; that the statement was not procured by coercion, threats, fear or promise of leniency; that defendant did not request counsel.” 474 S.W.2d at 850. Here, in the absence of the trial court’s finding that it disbelieved defendant’s testimony regarding requests for an attorney and to remain silent, we cannot find that the record supports the finding that the waiver and subsequent statements were voluntary. The only evidence on the subject was defendant’s unrefuted testimony which stands contrary to such a conclusion. The trial judge could disbelieve defendant and find his testimony incredible, but he made no finding to that effect and the State made no effort to refute by Koenig or any other witness defendant’s affirmative testimony in the suppression hearing.

It must be remembered that because the confession was obtained while the suspect was in custody, the burden of proving its voluntariness is upon the State. While the burden of proceeding is on defendant, once he has made his allegations regarding the inadmissibility of the statements, the burden of proof is on the State to show compliance with the guidelines set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the volun-tariness of the statement. In Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), the Supreme Court held that voluntariness of such confession need be proved by a preponderance of the evidence, which is the standard we adopt for such cases.

State v. Hunter, 456 S.W.2d 314 (Mo. 1970), and State v. Lyle, 511 S.W.2d 817 (Mo.1974), represent the most recent pronouncements by this Court on the standards by which to assess a finding of voluntariness. Hunter, at 322, acknowledges the burden which rests upon the State to prove knowing waiver of the procedural safeguards of Miranda. However, the court in that case repeats the pre-Miranda and pre-Lego statement that the standard to be applied in determining if the State had carried its burden of proving voluntariness is whether the evidence conclusively shows that the confession is involuntary. Lyle, supra at 818, follows Hunter’s lead on this point. This standard seems to improperly shift the burden of proof. As stated above, we now adopt the “preponderance of the evidence test” and the burden once placed on the State is measured against that standard. To the extent that Hunter and Lyle are contrary, they should no longer be followed.

In the light of defendant’s uncon-tradicted testimony, the State cannot be held to have established by a preponderance of the evidence a basis to support the finding of voluntariness. The defendant having once asserted his right to remain silent and to obtain counsel, questioning should have ended until such time as he voluntarily changed his mind or counsel was present. The evidence shows the State persisted in the questioning which renders the waiver and the subsequent statements inadmissible. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 423 (1977); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Wood, 559 S.W.2d 268 (Mo.App.1977). Cf. Michigan v. Mosley, 423 U.S. 96, 104 n. 10, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

On retrial, the court will be free to hold further hearings, at which the parties may offer evidence on the issues raised by defendant’s motion to suppress. Compare Sims v. Georgia, (I), 385 U.S. 538, 543, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) with Sims v. Georgia, (II), 389 U.S. 404, 406, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967). The trial court should then make further findings and a determination of the voluntariness of the confession. As stated in Monteer, 467 S.W.2d at 52, “[I]t is always advisable for the trial court to make explicit findings reflecting the specific facts upon which the trial court relies in determining the admissibility of a confession or the waiver of rights.”

Defendant also challenges the admissibility of the confession on fourth amendment grounds contending it was tainted by the allegedly illegal arrest. The cause is to be remanded for the reasons set forth above, and because the evidence presented on retrial may not be the same as that in the record before us, we need not decide the question. Nevertheless, on retrial, if the State successfully meets defendant’s fifth and sixth amendment challenge concerning procurement of the confession, it may well face the fourth amendment challenge, which could involve the burden of showing the warrantless arrest was for probable cause and thus valid, State v. Howell, 524 S.W.2d 11 (Mo. banc 1975), or failing so to do, of showing that the statements were not tainted by exploitation of the illegal arrest, Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and the attenuating effect of defendant’s voluntary dog statement upon the taint, if any, of the arrest and similar factors. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The next point we consider relates to the introduction of three photographs, one of defendant and two of rifles seized from the house where defendant was arrested. Defendant complains of the introduction of the three photographs on the ground they represent fruits of an illegal arrest. That of defendant was taken after his arrest and was used in the array of photos shown to the witnesses for identification purposes. The use of defendant’s photograph by the witnesses for identification purposes was proper and defendant’s objection in that particular is without merit. The witnesses’ identification of defendant emanated from a source independent of the arrest, viz, their recollection of the robbery. The taking of and use of the photographs were not constitutionally impermissible. State v. Thomas, 491 S.W.2d 328 (Mo.1973); State v. Lynch, 528 S.W.2d 454, 458-60 (Mo.App.1975). As to the photographs of the rifles, the objections thereto were not properly preserved for appellate review, but the parties must be aware that on retrial they will have an opportunity to develop the facts surrounding defendant’s arrest and the search of the house in order that the trial court may have sufficient information to rule the question if properly presented.

The final allegation of error concerns the trial court’s overruling of defendant’s objection to portions of the assistant prosecuting attorney’s final argument. Defendant points out that the burden was on the State to fairly state its essential points in opening argument or be denied the opportunity in closing argument to argue such points. He charges that the court ignored this requirement and permitted closing argument beyond the scope of the issues raised in opening argument by the State. Under the record here the point appears not to be well taken nevertheless we cannot say what form the arguments may take on retrial and accordingly need not decide the issue.

The cause is reversed and remanded.

MORGAN, C. J., BARDGETT, DONNELLY and SEILER, JJ., and HIGGINS, Special Judge, concur.

HOUSER, Special Judge, dissents.

PINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Defendant further testified that during the twenty-four hours immediately prior to arrest he had only two hours sleep. In response to the cross-examination of the State’s attorney on these matters, this appears:
      Q. Why did you answer their questions?
      A. I was scared.
      * * * * * *
      Q. . [D]id the officer say anything to you about what might happen to you good or bad, if you answered those questions?
      A. Yes, sir, he did.
      Q. What did he say to you?
      A. He said that if I answered the questions that it would possibly help me in front of a judge.
      The alleged promise of leniency or the veiled threat was in essence denied by Koenig.

      . Such factors as the existence vel non of probable cause for arrest, the existence and scope of consent to search and the scope of the search itself, the motivation of the officers, e. g., United States v. Edmons, 432 F.2d 577 (2d Cir. 1970), the existence of other means of obtaining the evidence, e. g., United States v. Young, 512 F.2d 321 (4th Cir. 1975), cert, denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976), as well as the standing of defendant to object, all may have relevance. We mention these only as examples, not as a comprehensive list of pertinent factors.


source: Caselaw Access Project

author: JOSEPH J. SIMEONE, Special Judge.

license: Public Domain

text:
    Patrick H. McMAHON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 60569.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.

      Phillip J. Barkett, Jr., Dempster, Yokley, Fuchs & Barkett, Sikeston, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Kathryn M. Krause, Asst. Atty. Gen., Jefferson City, for respondent.
   JOSEPH J. SIMEONE, Special Judge.

I.

After an evidentiary hearing, the Circuit Court of Scott County, on September 21, 1976, denied movant-appellant, Patrick H. McMahon’s motion to vacate filed pursuant to Rule 27.26, V.A.M.R. He appealed to the Springfield District of the Court of Appeals which affirmed the denial of the motion. We granted transfer of the cause and now review the case as on original appeal. Mo. Const. Art. V, § 10, as amended 1970; Rule 83.03. Our review is limited to whether the findings and judgment are clearly erroneous.

The issues presented in the case are: (1) whether a plea of guilty is involuntary when the defendant “believes” he is to receive a sentence recommended by the state or agreed to by the prosecutor and defendant, but is informed at the guilty plea proceeding that the court is not bound by any recommendation or agreement and the court at the time of the plea disabuses him of such belief, and (2) whether we should reverse the order of the trial court in denying the motion to vacate because the defendant alleges he was not given an opportunity to withdraw his plea. As to issue (1) we hold that where the record of the guilty plea clearly refutes the defendant’s belief that he would receive a lesser sentence than that imposed so as to make the belief unreasonable, the plea is not involuntary and (2) we decline to reverse the denial of the motion to vacate because the defendant under the guilty plea record was afforded the opportunity to withdraw his plea.

II.

In early 1975, movant-appellant was charged with seven counts of burglary and six counts of stealing for having broken into several homes in Bollinger County and stealing certain items. A change of venue was granted to Scott County; arraignment was held and movant pleaded not guilty. The cause was set for trial on October 2, 1975. On September 30, 1975, the movant appearing with retained counsel pleaded guilty before the Circuit Court of Scott County. Lengthy plea discussions took place before Judge Stanley Grimm; a pre-sentence investigation was ordered and sentencing was returnable at a later date. On January 13, 1976, the sentencing hearing was held and the court sentenced movant to ten years on each of seven counts of burglary and three years on six counts of stealing for a total of thirteen years “to run concurrently with any sentence [movant] may have received in St. Louis County . . .”

On March 23, 1976, movant filed his motion to “vacate, set aside or correct” his sentence imposed by the circuit court. He alleged that his convictions violated constitutional provisions because (1) the pleas were obtained by “trickery and the holding out of hopes which proved to be false and ill founded”; (2) his counsel “had movant believing that he would receive eight years on all the charges running concurrently with the St. Louis County sentence” and (3) “[he] was denied effective counsel because counsel misled [him] into thinking that he would get eight years for all the charges running concurrently.”

Counsel was appointed on the motion to vacate and an evidentiary hearing was held on September 2, 1976, before Judge Marshall Craig, at which movant, his wife, his brother and retained counsel testified.

The evidence and stipulations showed that Mr. McMahon tested at the “fifth grade level” on the standard oral reading paragraph test, had a score of 86 on the “Revised Beta IQ Test”, and on another test level “tested out at the fourth grade level.”

At the evidentiary hearing, Mr. McMahon testified that he was charged with the numerous counts of burglary and stealing and employed retained counsel to represent him on the charges. Movant lived in St. Louis and his attorney officed in Cape Girardeau. The thrust of his testimony was that he received a letter from his attorney relating to the trial setting; that he called the attorney and the attorney informed him that “the best we can get you for right now, [is] eight years, [which would] run it concurrently with St. Louis time.” According to movant the attorney informed him that “[I]f I got five years in St. Louis, he’d get me five years down here to run concurrently. He said if I got eight, it would be eight

years.” Movant’s attorney “told me to get down here if I wanted to plead guilty, take the deal he offered . . . Movant, his wife and brother went to Cape Girar-deau that same day and conversed with the attorney who told him the

“best deal he could do for me is get me eight years, run it concurrently with St. Louis; that was the best he could do for me, if I wanted to, I had to sign these papers [A Petition to Enter Plea of Guilty], I signed them.”
“Then he turned around and he said I would have to convince the judge to enter this plea of guilty, and so we came right on down here.” [Cape Girardeau]

McMahon testified that his attorney and the prosecutor had “talked it all over” and that “I would get eight years, run it concurrently with eight years, . . . He admitted that the prosecutor made the recommendation to the court as he promised, and believed that he would receive only eight years.

On cross-examination he recalled being told by the judge at the guilty plea hearing of the range of punishment — “ninety-something years, . . .” and remembered that his attorney stated that the prosecutor agreed to recommend “no less than five years, no more than eight years . . .” He recalled that the prosecutor at the guilty plea did make the recommendation, and recalled that the prosecutor told him that the court did “not necessarily follow that recommendation . . . .” He also recalled that the judge at the guilty plea proceeding indicated to him that the court was “not bound by that recommendation, and I want you to clearly understand that.” But movant persisted in testifying that he thought he had a “deal”. “I believe the deal was a deal. That is all I know.” He admitted knowing that the court was not bound by any attorney’s recommendation. At the guilty plea proceeding the court stated:

“I’ll say to you I don’t have the intention of giving you one hundred years, which is the maximum that I can give you, but I want you to know that I really have the right to give you any number of years from two up to one hundred years, and I don’t want you to think you may get by with only five or eight years, do you understand that?” The movant replied “Yes, Your Honor.” (Emphasis added.)

Mr. McMahon testified that he was not given an opportunity to withdraw his plea, but neither did he seek to withdraw the plea at that time. On cross-examination movant acknowledged that he understood all the questions asked of him by the court at the plea proceeding.

As to the petition to plead guilty, movant testified that the paper or petition was blank when he signed it.

Movant’s wife and brother corroborated much of the movant’s testimony.

Movant’s retained trial attorney testified at the evidentiary hearing. Contrary to the movant’s testimony, he testified that he went over the petition to plead guilty “step by step”. He also stated that movant was told that the prosecutor had agreed to recommend a sentence equal to the sentence in St. Louis County “providing it was not more than eight or less than five.” The attorney informed movant that the judge “did not accept recommendations point blank and that . . . sentencing would simply be up to [the judge’s] discretion.” Also contrary to movant’s testimony, the transcript of the plea proceeding shows that movant’s attorney had gone over the Petition to Enter a Plea and that the blank spaces were all filled in before movant signed such petition.

A transcript of the plea proceedings taken on September 30, 1975, was introduced at the 27.26 evidentiary hearing. The guilty plea proceedings show that the trial court in twenty-one pages meticulously informed movant of all his constitutional rights, made it abundantly clear that although the prosecutor recommended five to eight year sentences to run concurrently with the St. Louis County sentence, the court was not bound by any recommendation or by any agreement reached by counsel with movant, that the court had no intention to permit defendant to “get by” with only five or eight years, that movant could be sentenced to a much longer period than eight years — one hundred — and finally that the court was not bound to impose a sentence to run concurrently with the sentence received in St. Louis County.

At the termination of the plea proceedings the sentencing judge found the movant guilty on all seven counts and ordered a presentence investigation returnable at a later date.

On January 13, 1976, the movant appeared for sentencing. At that time the movant sought probation; his attorney informed the court that “Pat” was “not the same man . . .” and the prosecutor reminded the court that at the time of the plea he made a recommendation and “would make the same recommendation that was made at that time.” The court sentenced movant to concurrent ten years on seven counts of burglary and three years on six counts of stealing all to run concurrently with the sentence imposed by the Circuit Court of St. Louis County.

The trial court, in accordance with Rule 27.26, made findings of fact and conclusions of law. The order stated that movant alleged he was “led to believe that he would get eight years on all charges running with the eight years . . . ” in St. Louis County and that he was so told by his attorney but that the court did not follow the recommendations. The order recited that a lengthy record of the guilty pleas was made and “went over the fact ...” that the court was not bound by the recommendations but that movant might be sentenced to a “much longer term than eight years . . . .” At the time, no request was made to withdraw the plea. The court stated that the defendant relied on his “subjective” state of mind, thinking he would receive only eight years but the “record reflects that there was no reasonable grounds for the movant to form a belief that he would get eight years . . . .”

“The movant was not misled by his attorney or by the Court. He insisted at the hearing that a ‘deal’ is a ‘deal’. That might be true if in fact there was a deal. A recommendation is not a deal and the Court made that very clear to the movant at all times. He had no deal with the court, ... It was made clear to him that the length of the sentence was entirely up to the Judge . . . .”

The court concluded that the movant was not entitled to the relief he sought because the plea was “voluntarily and understandingly made with clear and adequate information and knowledge of the consequences.” The trial court therefore denied the motion.

III.

On this appeal, movant makes two points. (1) the trial court erred in finding that the pleas were entered knowingly and voluntarily because (a) such finding is against the weight of the evidence and (b) the finding erroneously applies the law because the record shows that appellant believed he would receive a sentence concurrent with the sentence in St. Louis County which would be not more than eight years and (2) the trial court erroneously applied the law in not permitting the movant an opportunity to withdraw his plea when the court “decides that he cannot follow the recommendation of the prosecuting attorney.”

He argues that his trial attorney told him that he would have to “convince” the judge to accept the plea and for that reason he answered the questions “as he was supposed to . . . .”

As to his second point he urges this court to adopt Rule 11(e)(4) of the Federal Rules of Criminal Procedure and urges that the sentencing judge should either accept or reject the bargain, and if rejected, the court should give him the opportunity to withdraw his plea. He reemphasizes this point in his additional brief filed in this court.

IV.

As to his first point, the test of whether a plea is voluntarily and intelligently made is not whether a particular ritual is followed or whether each and every detail is explained to a defendant but whether the plea in fact is intelligently and voluntarily made. Baker v. State, 524 S.W.2d 144, 147 (Mo.App.1975); Flood v. State, 476 S.W.2d 529, 534 (Mo.1972); Hulstine v. State, 533 S.W.2d 228, 231 (Mo.App. 1975); Abrams v. State, 521 S.W.2d 177,179 (Mo.App.1975). There is no requirement that the court explain every technical element of an offense. The expectation that a defendant will receive a lighter sentence does not make a plea involuntary. A disappointed hope of a lesser sentence does not make a plea involuntary. Abrams, 521 S.W.2d at 179.

The record here clearly shows that at the time of his plea the movant understood the nature of the charges, the range of punishment, the fact that the court was not bound by any recommendation of the prosecutor, that no threats or binding promises were made, and that he was entitled to all of his constitutional rights. The fact that he “believed” he would receive sentences concurrent with and not exceeding the five or eight year sentence in St. Louis County is not controlling.

The “subjective” test urged upon us is not the test of voluntariness. Any test of whether a person, in fact, has harbored a particular belief is necessarily subjective. While an individual may proclaim he had a certain belief and may subjectively believe it, if it was unreasonable for him to entertain such a belief at the time of the plea proceeding, relief should not be granted. The subjective test has to be viewed in the light of the reasonableness of the claimed belief. See Barylski v. State, 473 S.W.2d 399, 401 (Mo.1971); State v. Rose, 440 S.W.2d 441, 445 (Mo.1969). Otherwise the granting of every 27.26 motion would be automatic upon the movant’s assertion that his guilty plea resulted from a subjectively mistaken belief. The test to be applied must be viewed in the light of the reasonableness of the claimed belief. Where there is no reasonable basis for the belief in light of the guilty plea record, movant is not entitled to relief. Barylski, supra.

Hence, whatever the defendant’s subjective belief may have been as to receiving concurrent sentences of eight years — the same as in St. Louis County— the trial court clearly disabused the movant of that belief during its meticulous questioning at the time of the guilty plea. Cf. Pauley v. State, 487 S.W.2d 565, 567 (Mo. 1972); Parsons v. State, 528 S.W.2d 162,163 (Mo.App.1975); Brown v. State, 526 S.W.2d 55, 56 (Mo.App.1975). Under this record which shows that there was no reasonable basis for the belief that movant was to receive an equivalent sentence as that imposed in St. Louis County, we conclude that the plea was not involuntary.

Appellant relies on Griffith v. Wyrick, 527 F.2d 109 (8th Cir. 1975). In that case, defendant at the time of the plea stated he did not commit the offense charged, but was beaten and “maced” and pleaded to escape the custody of the jailers. There was no independent evidence offered to show otherwise. The United States Court of Appeals affirmed an order vacating sentence, and in the course of the opinion stated that as an additional factor for relief believed that the petitioner was influenced to plead guilty by his belief that a five-year sentence would be given. “In our view, this understanding was not an unreasonable one and is an additional factor supporting a finding that the plea of guilty was an involuntary one.” But this case is not controlling under the facts here.

The trial court on this 27.26 hearing had before it the transcript of the guilty plea proceeding. The court could see that before the pleas were accepted it was made abundantly clear to movant that the state’s recommendation was simply that, that any statements by trial counsel as to what plea agreement was made was not binding on the court, and that the court did not want movant to think that he would “get by” with only five or eight years. Movant reiterated his understanding that the court was not bound by any recommendation or agreement, repeatedly acknowledged that he understood that the court could assess punishment in excess of any recommendation and assured the court of his awareness that the judge was not agreeing to impose the recommended sentences. In view of the testimony, the evidence at the hearing, the meticulous interrogation of the movant at the plea proceedings, and his responses thereto, it appears unreasonable to conclude that movant could genuinely have been possessed of a reasonable belief that a plea agreement had been reached which would be binding on the court.

The appellant’s first point therefore is without merit.

V.

As to appellant’s second point, he complains that the trial court erred in overruling his motion because the court did not provide him with an opportunity to withdraw his plea after the court was advised of the plea agreement and after the court determined that it could not and did not follow the recommendation of the prosecutor.

As to this point, Schellert v. State, 569 S.W.2d 735, handed down this date, deals with the issue of providing an opportunity to a defendant to withdraw a plea when the court rejects a plea agreement. In Schel-lert, we discussed the principles relating to “plea bargaining” and its beneficial aspects and its necessity in the criminal justice system. In Schellert we specifically held that (1) the trial judge should not accept a plea of guilty without first inquiring whether there is a plea agreement and, if there is one, requiring that it be disclosed on the record “in open court” (2) if the plea agreement contemplates the granting of sentence concessions by the trial judge, he should give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant sentence concessions, and (3) “[i]f the court rejects the plea agreement, either at the time of the plea proceedings or at the time of sentencing, the court shall, on the record, inform the parties of that fact, advise the defendant personally in open court, . . . that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”

Schellert, in effect adopts prospectively the principles of Rule 11(e)(4), Ped.R. Crim.P. and now requires the court, in addition to the traditional inquiries at a guilty plea, to provide an opportunity to the defendant to withdraw his plea when the court rejects the plea agreement.

Such a procedure as outlined in Schellert brings the existence of a plea agreement “out into the open” and provides methods for the court to accept or reject the plea agreement. Advisory Committee Notes to Rule 11, Fed.R.Crim.P., 18 U.S.C.A. at 20. And such a procedure conforms in substance to the ABA Standards Relating to Pleas of Guilty, Standard 2.1(a)(ii)(5), Approved Draft, 1968.

But the principles laid down in Schellert do not aid the movant here and do not require a reversal of the trial court in denying the appellant’s motion to correct sentence. Schellert is quite distinguishable on its facts. The record of the guilty plea proceeding here complies in essence with the principles laid down in Schellert. Under the record here the defendant was meticulously warned that the trial court was not bound by any agreement or recommendation. The court disabused the defendant of the idea that he would receive a sentence of only five or eight years. The trial court wanted to “make clear” that “I don’t want you to feel that . . . I am going to give you between five and eight years . .” The trial court clearly informed movant that “I don’t want you to think you may get by with only five or eight years, do you understand that?” The defendant replied in the affirmative. Then the trial court significantly inquired “You still want to plead guilty knowing that?” The defendant replied, “Yes, Your Honor”. The trial court at the plea proceedings inquired whether movant still desired to plead guilty knowing that he would not “get by” with only five or eight years. Under these circumstances, the trial court gave the defendant an opportunity to withdraw his plea. Movant’s answer to the question “You still want to plead guilty knowing that ...” could have been “no”, so that the guilty plea would have been ineffective. Unlike Schellert, therefore, we believe that the movant was afforded an opportunity to withdraw his plea because the disposition of the case was to be less favorable to the defendant than that contemplated by the plea agreement. The opportunity to withdraw here came at the guilty plea proceeding. We believe that the better practice is for the trial court at the time of sentencing and after receiving a presentence investigation to then inform the defendant and counsel that the court rejects the plea agreement and at that time afford the defendant an opportunity to withdraw his plea.

The proceedings set forth in the guilty plea transcript attest to the fact that mov-ant was afforded an opportunity to change his mind about pleading guilty when it was explained that the court was not bound by any recommendation or agreement and that he was not going to “get by” with five or eight years. Even when movant appeared for sentencing three months after the plea proceeding, defendant was afforded an ample opportunity to speak and then sought only probation. It was not until the motion to vacate was filed that he finally sought to withdraw his plea.

We hold therefore that under the circumstances of this record that the movant is not entitled to 27.26 relief.

Under this record the order of the trial court denying the appellant’s motion to vacate or to correct sentence was not clearly erroneous. Rule 27.26(j).

The judgment is affirmed.

All concur.

      .The court stated: “It is going to be the judgment and sentence of the Court, . . . that the defendant be sentenced on the charge of burglary . . for a period of ten years . and on . the charge of stealing to a sentence of three years, or a total sentence of thirteen years, said sentence to run concurrently with any sentence he may have received in St. Louis County ... it being my intention that the defendant would receive a thirteen-year sentence, eight years [or five] of which will run concurrently with the sentence in St. Louis.”

      . At the termination of the evidentiary hearing, movant’s attorney stated that “[movant] does not desire that the sentence be vacated but merely corrected” to reduce the sentence to no more than eight years but not less than five.

      . At the beginning of the hearing movant amended his motion to include the allegation that he was not permitted to withdraw his pleas of guilty after the judge sentenced him because the court did not follow the recommendation of the prosecutor.

      . Movant had received an eight year sentence in St. Louis County but that judgment was appealed to the St. Louis District. Pending appeal the attorney for the movant believed that he could obtain a reduction of the sentence to five years. And from what we perceive in this record that appeal was dismissed.

      . Appellant also relies on Burgin v. State, 522 S.W.2d 159 (Mo.App.1975) because movant testified he was told by his attorney he would have to “convince” the court to accept the plea, and this was not denied by the trial attorney. Burgin, however is not controlling. In Burgin, movant alleged that he had been promised a two-year sentence and was told by his counsel to answer in the negative when the court asked if any “deal” had been made. The appellate court held that the withholding from the trial judge of a promise destroys the purpose promoting the inquiry by the court. The gist of the opinion is that a promise by anyone other than the judge is not binding and defendant should not be misled by a promise not within the prosecutor’s power to perform. Unlike Burgin, the appellant here stated he was instructed not to lie and the court clearly advised the movant he was not bound by any promise. See Giggar v. State, 547 S.W.2d 870, 871 (Mo. App.1977); Mainord v. State, 541 S.W.2d 779, 781 (Mo.App.1976); Williams v. State, 560 S.W.2d 887, 888 (Mo.App. 1978).

      . See Flood, 476 S.W.2d at 535-536 [Donnelly, J., concurring].


author: BILLINGS, Chief Judge.

text:
    James BROWN and Elma Brown, his wife, Plaintiffs-Appellants, v. Lloyd G. BRIGGS and Juanita Briggs, his wife, Defendants-Respondents.
    No. 10667.
    Missouri Court of Appeals, Springfield District.
    April 25, 1978.
    Motion for Rehearing or to Transfer Denied May 17, 1978.

      James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-appellants.
    Weber Gilmore, Gilmore & Gilmore, Sike-ston, for defendants-respondents.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   BILLINGS, Chief Judge.

This is an appeal from a jury verdict in favor of Lloyd Briggs on his counterclaim for libel. The jury awarded him $5,000 actual damages, no punitive damages. The trial court entered judgment in accordance with the verdict, denying the Browns’ motion for judgment notwithstanding the verdict. We reverse and remand with directions. The controversy arose after the Browns brought suit on a note executed by Mr. and Mrs. Briggs in connection with the sale of the Browns’ Sikeston, Missouri, restaurant to them. After several delays in the trial proceedings, the case was set for trial October 26, 1976. When Briggs got an extension, the Browns paid for the following article to be published in the Daily Standard, a Sikeston newspaper, on November 9, 1976.

“SUING THE JUDGE IS ONE THING: GETTING HIM TO COURT IS ANOTHER THING:
Magistrate Judge, Lloyd G. Briggs, of Scott County gets 60 days extension from court proceedings against himself due to poor health. Yet he continues to try and judge others in his own court.
In case James and Elma Brown vs. Lloyd and Juanita Briggs has been IV2 years on the court docket with at least four postponements. In 1974 Judge Briggs of Scott County purchased from the Brown’s “Two Tony’s Smorgasbord” signing a note agreeing to pay said amount for the business.
He has failed to pay the note and after a year and a half, finally getting court date set for Tuesday, October 26, 1976 to try the Judge, he gets a statement from a local physician that he is unable to stand trial against himself due to poor health. Yet he continues his duties as judge, trying and judging others.
If his health is too poor to stand judgment against himself, then wouldn’t one wonder just how he is then capable and able to pass judgment on other citizens in his own court?
Give this some thought, will you???”

Briggs in his counterclaim declared the article was “false, malicious and libelous” and was “willfully, wantonly and maliciously published.” The article was claimed to be false because the extension was granted due to the fact that Briggs was having problems stabilizing his blood pressure, not poor health, and that a letter from his physician made no allusion to general poor health. A second misstatement according to Briggs was that there were five postponements instead of four. Thirdly, the note was alleged to have been given for an oral covenant not to compete rather than to purchase the restaurant. The Browns denied these assertions, sought a dismissal of the counterclaim for failure to state a cause of action and raised the defenses of truth and privilege.

Truth is a complete defense to charge of libel. If the facts stated are shown to be true, no defense of privilege is necessary. Pulliam v. Bond, 406 S.W.2d 635 (Mo.1966); Warren v. Pulitzer Publishing Co., 336 Mo. 184, 78 S.W.2d 404 (1934); Cash v. Empire Gas Corp., 547 S.W.2d 830 (Mo.App.1976). In defending on the basis of truth, it is not necessary that the precise facts stated in the article be literally true. “Slight inaccuracies of expression are immaterial if the defamatory charge is true in substance.” Kleinschmidt v. Johnson, 183 S.W.2d 82, 86 (Mo.1944); see also, Turnball v. Herald Company, 459 S.W.2d 516 (Mo. App.1970).

The test to be applied in determining the accuracy of the Browns’ newspaper article concerning the extension granted Briggs, is whether the article is substantially true. There is no dispute that Briggs was the magistrate judge for Scott County, and that he and his wife had contracted to purchase Two-Tony’s restaurant from the Browns. There is also no doubt that the Browns brought suit July 26, 1975, against the Briggses on the note executed in connection with the sale and that-the case was set for trial October 26, 1976.

All other statements in the article were admitted to be true by Briggs in his testimony. He testified that the note was “part of what we paid for Two-Tony’s” and that he and his wife owed on the note. Both Briggs and his attorney admitted Briggs got a 60 day extension of the trial based on a letter from his physician and that his health gave rise to the postponement. By Briggs’ own admission, it was established that he conducted magistrate court October 26, 1976. He also admitted he had continued to regularly perform his magistrate court duties after that date.

The truth of the article having been admitted by Briggs, the evidence did not sustain his case. The trial court should have sustained the Browns’ motion for a directed verdict at the conclusion of the evidence. The judgment is reversed and the case is remanded with directions to enter judgment for the Browns in accordance with their motion for directed verdict.

It is so ordered.

All concur.

      . The letter from Briggs’ personal physician stated, “Mr. Lloyd G. Briggs is under treatment for hypertensive vascular disease and is having headaches related to a sinus condition. It is my recommendation that he not be involved in any litigation for sixty days.”

      . Mr. and Mrs. Briggs amended answer admitted the note was executed as part of the purchase price and that $14,000 was owed. They amended this answer by interlineation at the time of the trial, admitting $1,900 was owed. The jury awarded the Browns $18,000. See: Brown, et ux. v. Briggs, et ux., 559 S.W.2d 768 (Mo.App.1977).


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie STAMPS, Defendant-Appellant.
    No. 37172.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 13, 1978.
    Motion for Rehearing and/or Transfer Denied July 17, 1978.
    Application to Transfer Denied Sept. 12,1978.

      Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant was convicted of forcible rape and sentenced by the trial court under the Second Offender Act to life imprisonment. On appeal, defendant raises the following points of alleged trial court error: (1) admitting the testimony of a state’s witness regarding an unrelated incident near the scene of the crime before it occurred; (2) overruling defendant’s motion for acquittal at the close of the State’s case; (3) denying a request for mistrial on the basis of the prosecutor’s reference to defendant’s race; (4) denying a request for mistrial on the basis of the prosecutor’s reference to defendant’s religion; (5) permitting the prosecutor in closing argument to argue circumstantial evidence as a factor in the case; (6) permitting the prosecutor to make reference to items of defendant’s clothing not in evidence.

Defendant’s assertions are wholly without merit, and we affirm the conviction.

The facts of this crime are particularly facinorous. The victim of defendant’s attack was a fifty-eight year old patient at a hospital located in St. Louis County. In the early morning on the day of the assault, the victim had undergone serious abdominal surgery for a colostomy closure. Later in the day she had been taken from the surgical recovery room to her own room on the sixth floor of the hospital. She was under sedation with an intravenous tube attached to her arm and a nasal gastric suction tube through her nose and extending down her throat. About 5:00 in the afternoon, she was awakened by the movement of a man at the side of her bed. The intruder — positively identified as defendant — leaped on the victim’s bed, pushed on her throat and threatened to kill her with a knife if she made a noise. The defendant then raped the victim causing her intense pain. A nurse entered the room, interrupting defendant’s evil assault. Defendant jumped from the bed, fumbled with his trousers, picked up a brown paper bag on the dresser and hurried out of the victim’s room. The victim informed the nurse that she had been raped, and the nurse pursued the defendant into the hallway where she saw him moving toward an emergency exit. The nurse called to a passing physician— Dr. Hoff — that her patient had been raped by the defendant who was trying to leave the floor. Dr. Hoff caught hold of the defendant and was leading him by the arm to the nurses’ station when he broke away and ran down a stairwell with Dr. Hoff in close pursuit. Dr. Hoff did not lose sight of the defendant as he chased him down three flights of stairs into the arms of two security guards who had been summoned and were going up the stairs. When caught, defendant possessed the brown paper bag he was seen carrying from the victim’s room. His belt was unbuckled and his trousers’ fly was open. The victim positively identified defendant as her assailant, and the nurse, Dr. Hoff and the security guard who caught him were also unequivocal in their identification of defendant.

Defendant maintains that he was at the hospital to visit his common law wife, Ther-ester Blackman, who was a patient, and that he was apprehended in a case of mistaken identity. The only testimony in his behalf came from Ms. Blackman who stated that she did not see defendant on the day of the rape. In his opening argument, however, counsel for the defendant stated the evidence would show that when defendant entered the hospital to visit Ms. Blackman it was the height of visiting hours. He explained that defendant waited for an elevator, but they were so overcrowded he decided to walk up the stairs to Ms. Black-man’s room on the fifth floor. He maintains while in the stairwell defendant was mistakenly apprehended as the rapist.

Defendant’s first point of error relates to the testimony of Julie Flynn, an employee of the hospital on duty the day of the rape. Ms. Flynn testified that at 4:00-4:15 P.M., she took an elevator from the ground to the seventh floor. On the first floor, a male, later identified as defendant, entered the elevator and accompanied Ms. Flynn to the seventh floor. A few minutes later when she got back onto the elevator, defendant entered with her. There was no objection to any of the foregoing evidence. Defendant did, however, object when Ms. Flynn, in response to a question whether she noticed anything unusual about the man, stated that he smelled of alcohol.

On appeal defendant asserts that all of Ms. Flynn’s testimony, which until the above stated question was answered had been received without objection, was irrelevant and immaterial. Initially we note that defendant failed to make a proper and timely objection, i. e., one made on legitimate grounds and at the earliest opportunity once the objectionable character of the testimony became apparent. Therefore, no error in admitting Ms. Flynn’s testimony was preserved for appeal. State v. Simmons, 500 S.W.2d 325 (Mo.App.1973); State v. Jackson, 500 S.W.2d 306 (Mo.App.1973). Moreover, we believe that the evidence in question was both relevant and material to facts in issue. Ms. Flynn’s testimony rebuts defendant’s theory of the case as asserted in his counsel’s opening statement.

It establishes that defendant, contrary to his counsel’s assertions, was at the hospital on an uncrowded elevator forty-five minutes to one hour before he was apprehended. Her testimony meets the test of relevancy, in that it tends to prove or disprove facts in issue. State v. Proctor, 546 S.W.2d 544 (Mo.App.1977); State v. Walden, 490 S.W.2d 391 (Mo.App.1973). It meets the test of materiality, in that it is relevant and has bearing on substantial matters in dispute. See, State v. Roberson, 543 S.W.2d 817 (Mo.App.1976). Its admission was proper in the exercise of the trial court’s discretion. State v. Martin, 530 S.W.2d 447 (Mo.App.1975). Any remoteness in time between the incident in the elevator and the rape affects the weight rather than the admissibility of the testimony. State v. Woods, 508 S.W.2d 297 (Mo. App.1974); State v. Taylor, 506 S.W.2d 94 (Mo.App.1974).

Next, defendant argues that the trial court erred in failing to sustain his motion for judgment of acquittal at the close of all the evidence because the state failed to make a submissible case on each of the elements of rape. In light of the overwhelming evidence of defendant’s guilt this point is chimerical. In the argument portion of his brief defendant contends that the eyewitness identifications were so inadequate that they could not support the conviction; that there was no evidence of “utmost resistance” by the prosecutrix and that there was no clear evidence of penetration — an absurd argument here.

. In determining if a submissible case was made we must view the evidence and inferences fairly derivable therefrom in the light most favorable to the verdict. All evidence to the contrary is disregarded. We do not substitute our judgment for that of the jury but only determine if there was substantial evidence to support its verdict. State v. Longmeyer, 566 S.W.2d 496 (1978); State v. Johnson, 566 S.W.2d 510 (1978); State v. Gamache, 519 S.W.2d 34 (Mo.App. 1975).

Defendant argues that the initial descriptions given by the eyewitnesses were contradictory and confusing in that not all remembered the assailant as having a mustache and rough pockmarked skin. His argument ignores the substantial agreement in descriptions given by the witnesses both immediately after the rape and at trial. Each witness positively identified defendant at trial as the rapist. Further, their description of defendant’s physical attributes and dress were almost identical to one another. From the time the nurse interrupted the assault until the assailant ran into the arms of the hospital security guards either she or Dr. Hoff kept the man within their line of sight. Any minor discrepancies in the descriptions given shortly after the crime affect only the weight and credibility to be accorded the identification testimony by the jury. State v. Radford, 559 S.W.2d 751 (Mo.App.1977); State v. Barnes, 536 S.W.2d 932 (Mo.App.1976). Clearly in this instance the jury’s verdict was influenced by the positive agreement among the witnesses that defendant was the rapist.

Furthermore, the state met is burden of proving each of the elements of rape by substantial evidence. It was required to prove penetration (however slight) of the victim’s sex organs, against her will by force or threat thereof. State v. Barnes, supra; State v. Ruhr, 533 S.W.2d 656 (Mo.App.1976). The prosecutrix testified directly and convincingly that she was accosted by defendant, that her life was threatened and that he achieved penetration against her will. Defendant has the temerity to suggest that the victim did not use her utmost efforts to resist the attack upon her. Under the circumstances in which this crime occurred, defendant’s argument that there was no showing of “utmost resistance” is fatuous. The victim only a few hours earlier had undergone serious abdominal surgery. At the time of the rape, though lucid, she was incapacitated in her hospital bed. She had an I.V. in her arm and a suction tube down her throat. Defendant told her he had a knife and would kill her if she did not cooperate. Where, as here, a victim is put in such fear of physical violence that her will is overcome the utmost resistance doctrine is inapplicable. State v. Gallup, 520 S.W.2d 619 (Mo.App.1975).

Defendant’s next point alleges that comments made by the prosecutor in his closing argument concerning defendant’s race and the racial setting of the trial were improper and should have been the basis for a mistrial. We set out these comments in full: “It is an all white jury. The witnesses have all been white. For the most part there have only been white people in the courtroom all week. There may have been one black boy who has been in for one short moment watching. Mr. Stamps is black. Now, that might strike fear into your heart or any black defendant who faces twelve white jurors.

But I feel confident in this county that twelve white jurors are going to sit in judgment on a black man no differently than they would on a white man. I feel confident. I don’t have any concerns along that line. The one concern I might have is that an all white jury in this particular county might be unfair to the State in their attempt to be more fair to a black than they might be to a white. They might attempt to over-react in an attempt to be extra fair. There is no requirement to do that. Mr. Stamps is not entitled to any different trial than a white man, red, oriental or any other color.”

Immediately the defense counsel moved for a mistrial or alternatively that the jury be instructed to disregard the prosecutor’s comments. The motion was denied, because, in the trial court’s words, “of the extreme emphasis that the defendant’s attorney put on the matter during the trial of the case.”

In reviewing this allegation of error we are cognizant of the concomitant duties placed upon the prosecutor in fulfilling his quasi-judicial function. He must vigorously present the state’s case, but he must do so in such a way as to ensure that defendant will receive a fair trial in accordance with the dictates of justice. State v. Swenson, 551 S.W.2d 917 (Mo.App.1977); State v. Stocksbridge, 549 S.W.2d 648 (Mo. App.1977). The prosecutor, therefore, must scrupulously refrain from statements calculated to engender prejudice or incite passion against the defendant. We believe the prosecutor has met his duty here.

The trial court has broad discretion in ruling on a motion for a mistrial arising out of remarks to the jury in the course of a prosecutor’s closing argument. State v. Swenson, supra. It is only in those extraordinary situations in which the overtones of prejudice engendered by the prosecutor’s comments cannot otherwise be dissipated that a mistrial should be granted. State v. Lacy, 548 S.W.2d 251 (Mo.App. 1977). Abuse of the trial court’s discretion must be shown before an appellate court will reverse a conviction for improper argument. Where the prosecutor’s deliberate statements appeal to racial prejudice or where he interjects race in a derogatory manner so as to inflame the minds of the jury, his comments are improper and may constitute reversible error. State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87 (1935); State v. Franklin, 526 S.W.2d 86 (Mo.App. 1975). The contested comments in this case, however, were not of a prejudicial or derogatory tenor. They were not made in an effort to misdirect the jury from an impartial consideration of the evidence or to induce the jury to convict defendant because of his race. As the trial court noted in overruling defendant’s motion for a mistrial the prosecutor’s innocuous comments were precipitated by and in retaliation against repeated attempts by defendant’s counsel to create the appearance that defendant’s race was an issue in the case. His frequent comments concerning the exclusive participation of whites in the trial of a black man were thinly veiled attempts to induce feelings of guilt in the jurors and to encourage them to give defendant favored consideration because of his race. The prosecutor’s argument properly told the jury that they were to make their judgment as to the guilt or innocence of this defendant, after a fair and conscientious weighing of the evidence, the same as they would for any other person regardless of his race. As such, the argument was directed at ensuring a fair trial unaffected by racial considerations. The trial court is vested with considerable discretion in allowing the use of retaliatory arguments. State v. Lacy, supra. Under the circumstances of this case the court did not abuse its discretion in light of defense counsel’s comments.

In addition defendant argues that this quoted portion of the state’s closing argument contains an improper reference to the defendant’s religion. In his brief defendant quotes the final sentence as follows: “Mr. Stamps is not entitled to any different trial than a white man, red, yellow or gentile or any other color.” (emphasis added) The record does not contain the word gentile or any other even arguable reference to the religion of defendant. Defendant’s allegation of error, therefore, is not supported by the record and is without merit.

Defendant next argues that the trial court erred when it permitted the prosecuting attorney to argue circumstantial evidence as a factor in the case in that there was no circumstantial evidence of guilt and there was no circumstantial evidence instruction. This argument is likewise without merit. As to the latter challenge, defendant did not request a circumstantial evidence instruction, and none is required to be given unless the entire case is based on circumstantial evidence. Rule 20.02 V.A.M.R.; MAI-CR 3.42 Notes on Use. As to the former challenge — although there is substantial directed evidence of defendant’s guilt — the record is also replete with circumstantial evidence. See note No. 4, supra. The prosecutor’s remarks regarding circumstantial evidence were in reference to evidence properly admitted; therefore, his argument was legitimate. State v. Simone, 416 S.W.2d 96 (Mo.1967); State v. Menard, 331 S.W.2d 521 (Mo.1960); State v. Swenson, supra.

Defendant’s final point of error — like the previous one — asserts that the prosecutor was improperly allowed to argue evidence not in the record. He attacks the following comments made by the prosecutor during his closing argument:

“As to what physical exhibits were put into this trial, that wasn’t the responsibility or decision of the police. That was my decision as prosecutor. I put in front of you people what evidence I thought was relevant and what evidence there was to indicate the innocence or guilt of Mr. Stamps. Are you going to assume for a minute that if I brought in the white loafers that—
Mr. Shaw: Well, Judge, I am going to object to now saying what would happen if he brought in the white loafters (sic). There is no — I am going to ask that the jury be discharged and a mistrial declared. There are no white loafers.
Mr. Westfall: Well now, Judge, I am going to object to that.
Mr. Shaw: If there are, he should have brought them in.
Mr. Westfall: There are white loafers.
Mr. Shaw: I am going to ask that the jury be discharged and a mistrial declared.
If there are, you should have brought them in.
The Court: All right. Sit down, both of you.
You (sic) objection is overruled. Your motion for a mistrial is denied.”

Defendant contends that these comments were improper because they had the effect of informing the jury that the white loafers did exist and that the jury was to accept their existence as fact even though the shoes had not been introduced into evidence in the case. It is true that the shoes were not introduced into evidence; however, eyewitnesses testified that the rapist wore white shoes. When defendant was arrested, he wore white shoes. The existence of the shoes therefore was in evidence and was a proper subject for the State’s closing argument. Moreover, the prosecutor’s remarks were made in response to defense counsel’s closing arguments. During his argument, defense counsel on three separate occasions questioned the existence of the shoes and asked why they had not been produced by the state. Prosecutors are permitted wide latitude to reply to defense counsel’s argument which is directed to discrediting the prosecution’s case in the eyes of the jurors. State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975). The trial court has broad discretion in permitting the use of retaliatory arguments. State v. Lacy, supra. We find no abuse of discretion here.

The conviction is affirmed.

WEIER and KELLY, JJ., concur.

      . In the argument portion of his brief defendant urges he was surprised when Ms. Flynn was called as a witness for the State and implies that for that reason the trial court erred in allowing her testimony. This assertion is without merit. Ms. Flynn was endorsed as a witness by the State prior to trial, and the State in its opening argument stated that Ms. Flynn would testify to the facts which she described. Defendant did not object on the basis of surprise and did not ask for a continuance. Under such circumstances defendant may not now claim he was surprised by her testimony.

      . Although he moved for a judgment of acquittal at the close of the State’s case, defendant made no such motion at the close of all of the evidence. He did, however, question the sufficiency of the evidence in his motion for a new trial and thus preserved the issue for appellate review. State v. Rice, 522 S.W.2d 335 (Mo. App.1975).

      .Defendant argues that the quality of the identification testimony was so tainted by pre-trial confrontations that its admission violated his right to due process of law. When defendant failed to object to the identification testimony on that ground at trial, he waived the right to raise the issue on appeal. State v. Daniels, 487 S.W.2d 465 (Mo. 1972). Further, defendant’s contention in this regard is without merit.

      . The challenged comments of the prosecutor are as follows:
      “You have three people that have come in here and pointed to Willie Stamps and said he is the rapist. [The victim] says that’s him — that is he — [the nurse] says that is he, Dr. Hoff said that’s he. But even if they couldn’t, circumstantial evidence in this case would prove Willie Stamps guilty beyond a reasonable doubt.
      Mr. Shaw [Defendant’s counsel]: Just a second. I didn’t hear that.
      Mr. Westfall [prosecutor]: I said circumstantial evidence in this case would prove his guilt beyond a reasonable doubt.
      Mr. Shaw: Your Honor, there is no circumstantial evidence in this case. It is direct testimony by eyewitnesses, and you have not instructed the jury about circumstantial evidence.
      The Court: Overruled.
      Mr. Westfall: He said he grabbed a paper bag, and that’s circumstantial evidence. He was fumbling with his trousers. Dr. Hoff saw his fly open and Mr. Lindberg saw his fly was open and his belt was loose. That’s circumstantial evidence. The dark suit and trousers and white shoes that’s all circumstantial evidence. And he was wearing those same items of clothing 30 seconds later when he was apprehended in the stairwell.”


author: KELLY, Judge.

text:
    CITY OF ST. CHARLES, Missouri, Plaintiff-Appellant, v. Orville G. SCHONE and Patricia L. Schone et al., Defendants-Respondents.
    Nos. 38365, 38377.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 13, 1978.

      J. David Bechtold, Keith W. Hazelwood, St. Charles, for plaintiff-appellant.

      Carter & Becker, Charles F. Dufour, Clayton, for defendants-respondents.
   KELLY, Judge.

In this cross appeal the City of St. Charles in Cause No. 38877 appeals from the judgment of the Circuit Court of St. Charles County whereby the trial court held that with respect to Count II of the City’s petition for Declaratory Judgment pursuant to the requirements of § 71.015 RSMo. 1969, V.A.M.S. — “The Sawyer Act” — for the purpose of annexing a certain unincorporated area in St. Charles County it lacked jurisdiction to reach the merits of the cause because the defendants named in the petition “are only renters or lessees of certain apartments and businesses and not owners of property sought to be annexed by said Count II, and as such do not fairly and adequately represent the class.”

The defendants’ appeal in Cause No. 38365 is from the judgment of the Circuit Court in Counts I and III of the City’s petition whereby the trial court found that the annexation of the areas of unincorporated land sought to be annexed therein to be reasonable and necessary to the proper development of the City of St. Charles and that the City had the ability to furnish normal municipal services of said City to those areas sought to be annexed within a reasonable time after annexation.

The issue raised in Count II, stated simply, is what does the term “inhabitants,” employed in § 71.015 subsection 3 mean in the sentence contained therein which reads as follows:

“Such action shall be a class action against the inhabitants of such unincorporated area under the provisions of section 507.070 RSMo.”

The facts pertinent to this issue are that the area sought to be annexed in this Count is situated south of Interstate 70 where it intersects with Fifth Street in St. Charles County, Missouri, immediately south and somewhat east of the corporate limits of the City of St. Charles. It is approximately an area of 11 acres improved with apartments and two commercial establishments. The area is zoned commercial. From the evidence we deduce that there are approximately 175 apartment units, and two commercial establishments, one occupied by the Goodyear Wholesale Tire Center and the other by J. & R. Pallet Repair, located in this area.

Preliminary to the institution of this suit Ben Holbert, the Annexation Director for the City, compiled a list of the “residents” of the areas to be annexed. The source of this data were the records of water-taps. Assisted by one of his employees, Mr. Hol-bert ascertained that there were 119 people, according to the water-tap records in the three areas; 7 resided in the area sought to be annexed in Count I of the petition, 112 in the area included in Count II, and 1 in the area in Count III of the petition. In compiling this list he admitted that he made no determination whether any of these persons were owners of the land which they inhabited.

Although the petition as filed — at least as it is copied in the transcript of the record— alleged in paragraph 3 of each Count that “all of the defendants specifically named are residents or owners of land herein described,” we are unable to determine from this record who most of the defendants are. From the caption of the case and the briefs filed by the parties to this appeal we are able to ascertain that Orville G. Sehone and Patricia L. Sehone are named defendants. From an entry of appearance by the only counsel who appeared at the trial of the action and in this court we learn that he is attorney of record for the following: “Sehone, Hohman, Schmidt and Feltz.” James Feltz, Jr., testified as a defense witness at trial, and according to his testimony he is the owner of a home in which he resides at 405 Lilac, and this is situated in the area sought to be annexed by the City in Count I of its petition.

When this case was argued, upon interrogation by one of the members of this court, counsel for those defendants named in the entry of appearance, candidly admitted that he represented owners of land but did not specify what area they inhabited, if any, among the three unincorporated areas named in the City’s petition.

Mr. Holbert also testified that of those persons selected as representative of the class, service of process was obtained on all seven of the residents in the area described in Count I of the City’s petition, but that in respect to one of these the service was, for some unexplained reason, invalid. Eighty-five residents of the area described in Count II of the petition were served and the sole resident of the area described in Count III of the City’s petition was also served. Of those residents of the apartments in the area described in Count II of the City’s petition who had been served, at the time of trial fifty-seven were still residents. One of the two commercial establishments in this area had also been served. There is no entry of appearance in behalf of any of these members of the class to be affected by any decision on Count II of the petition.

As we understand the argument of both counsel, the question succinctly stated is whether in a class action under the provisions of § 71.015 subsection 3, RSMo. 1969, V.A.M.S., where an area sought to be annexed has been improved by apartment buildings it is necessary to join as party defendants the owners of the land on which the apartment buildings are erected, and does the failure to do so deprive the trial court of jurisdiction to reach the merits of the question of annexation? We believe it does not.

The General Assembly in enacting the Sawyer Act provided that the declaratory judgment action should be a class action against the “inhabitants of such unincorporated area . . .,” but in so doing chose not to define the term. By § 1.090 RSMo. 1969, V.A.M.S. we are directed to take words and phrases in their plain or ordinary and usual sense except that technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import. It is not contended by either of the parties to this appeal that the word “inhabitants” is a technical word and we are of the opinion that it should be taken in its plain or ordinary and usual sense.

The City contends that the term “inhabitant” means one who is a resident or who dwells in a place as distinguished from a transient. In support of this construction of the term it relies on the definition found in State v. Snyder, 182 Mo. 462, 82 S.W. 12 (1904), and Stevens v. Larwill, 110 Mo.App. 140, 84 S.W. 113,118 (1904). In Snyder the court was construing the term “inhabitant” as employed in § 2419, Rev.St. 1899, the statute of limitations applicable to a bribery prosecution and in Larwill the question whether the administrator was a nonresident of the state. The Larwill court said, 84 S.W. l.c. 118: “The words ‘inhabitant,’ ‘citizen,’ and ‘resident’ mean substantially the same thing, and one is an inhabitant, resident, or citizen of the place where he has his domicile or home. * * * A man’s residence is his home or habitation fixed at any place, without a present intention of removing therefrom.”

The term “inhabitant” is defined in Webster’s Third New International Dictionary (Unabridged) as: “1: a person who dwells or resides permanently in a place as distinguished from a transient lodger or visitor.” It would appear, however, that to qualify as an “inhabitant” one must be more than a resident. This court in State v. Bunce, 187 Mo.App. 607, 173 S.W. 101, 102 (1915), said:

“Mr. Black, in his Law Dictionary (2d Ed.) p. 1026, defines ‘resident’ as being one who has his residence in a place. It is more limited than the word ‘inhabitant,’ the latter implying, he says, ‘a more fixed and permanent abode than does resident.’ ”

Defendants, on the other hand, rely on City of St. Charles v. Schroeder, 474 S.W.2d 55 (Mo.App. 1971) where in this court reversed the granting of a declaratory judgment authorizing the City to proceed with annexation because the list from which those named as defendants were chosen did not include all, or even a substantial number, of the property owners in the area proposed to be annexed, and were not fairly chosen within then Rule 52.09 V.A.M.R. As we later pointed out in City of Des Peres v. Stapleton, 524 S.W.2d 203, 206 (Mo.App. 1975) in the Schroeder case the defendants were selected from a narrow geographic area; one entire area of land which was to be annexed was unrepresented, as were many of the subdivisions in the area to be annexed; the defendants there were selected an random from a list of residents that did not fairly represent the whole class of inhabitants of the area; the evidence showed much opposition to the annexation and none of the opponents were represented; and although there was a wide variety of land uses, some of the owners of this land were not represented. In neither Schroeder nor Stapleton was the question before us decided, despite the reference to the absence of land-owners. The question in Schroeder was whether the class was fairly chosen and whether they adequately and fairly represented the class, and in Sta-pleton, whether the City established a valid class action and whether it failed to establish the reasonableness and necessity of the annexation. In neither case was the land which the City sought to annex improved by apartments and commercial establishments alone.

We believe that if it was the intention of the General Assembly that in a proceeding under the Sawyer Act owners of the fee interest who were not inhabitants of the unincorporated areas sought to be annexed should be necessary party defendants it could have so provided. This was done in § 71.012 RSMo. Supp. 1976, and § 71.014 RSMo. Supp. 1973 providing for annexation upon request of all property owners.

Although there was no showing that counsel who participated in the trial of this action was employed by any of the persons who inhabited the area sought to be annexed in this Count to represent them, and for that reason there may be some question of his standing to respond to the City’s argument on its appeal, it is obvious from a reading of the record and the arguments presented in the appeal from the judgments in Counts I and III of this petition that he was opposing any annexations in this area by the City. In the trial court, and here, his argument against these annexations consisted in contentions that the recent history of annexations by this plaintiff and the “multitude of suits” thereby occasioned— including one, George Schlarman et al. v. City of St. Charles, Cause No. 14034, in the Circuit Court of St. Charles County, and which is still languishing in that court— taken with the entry into voluntary agreements with other landowners in the area to take in tracts of land in the unincorporated areas of St. Charles County, constitute some nefarious scheme of land-grabbing by the City. He applied this argument not only to the tracts sought to be annexed in Counts I and III, but with equal strength to the areas sought to be annexed in Count II of the City’s petition.

Despite the fact the apartment dwellers and the operators of the business establishments in this area did not appear by counsel — so far as we know — the persistent and vigorous defense of the only counsel in the case on the defendants’ side convinces us that their opposition to annexation, if there was any, was more than adequately and fairly represented.

We hold therefore, that the trial court erred in its finding that it lacked jurisdiction to reach the merits of this declaratory judgment petition, Count II, for the reason that the class was not adequately and fairly represented.

The defendants, in their appeal, raise the following Points: that the trial court erred in entering judgment for the City on Counts I and III of its petition because: 1) the aim of this annexation was to extend the corporate limits of the City so that its boundaries would abut certain “voluntary” tracts; 2) because the boundaries of the proposed annexation are highly irregular and distorted and will create hazards for owners receiving governmental services in the proposed and abutting areas; 3) because annexations should be infrequent; and, 4) the City has engaged in a multitude of fragmented, piecemeal annexations, thereby preventing defendants from presenting an adequate defense.

Reduced to simpler terms, what the defendants actually contend is that the City failed to meet the burden cast upon it by § 71.015(2) RSMo. 1969, V.A.M.S., that the annexation was reasonable and necessary to the proper development of the City.

The decision to annex contiguous unincorporated areas in essentially a legislative decision resting within the discretion of the City’s governing body. Young v. City of Liberty, 531 S.W.2d 732, 737[4] (Mo. banc 1976); City of Jefferson v. Smith, 543 S.W.2d 547, 549[2] (Mo.App. 1976). Neither the trial court nor this court on appeal may interpose its judgment as to the advisability or the wisdom of the proposed annexation for that of the City’s legislators. Our function, under the Sawyer Act, is to determine whether the City has presented sufficient competent evidence to make compliance with the statutory prerequisites imposed by the Sawyer Act “fairly debatable.” If the City has done so, we may not usurp the discretionary judgment of the City’s legislative body. City of St. Joseph v. Hankinson, 312 S.W.2d 4, 8[7] (Mo. 1958); City of Jefferson v. Smith, supra, l.c. 549.

The trial court found with respect to these unincorporated areas that annexation to the City of St. Charles was reasonable and necessary to the proper development of the City. In determining whether the City has met its burden of proof we may not review the evidence de novo, but we must sustain the trial court’s judgment unless it lacks substantial evidentiary support. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The defendants have furnished us with no authorities in support of their first point and we have been unable to find any case so holding. As we previously stated in Smith v. City of St. Charles, 552 S.W.2d 60, 63[4] (Mo.App. 1977): “While irregular boundaries are a factor in determining the reasonableness of an annexation, it alone is not determinative.” The same may be said for the defendants’ next Point as to the frequency of annexations as a factor in determining the reasonableness. While frequency of annexation is a factor in determining reasonableness in annexation cases, it is not conclusive. City of St. Peters v. Kodner Development Corporation, 525 S.W.2d 97, 100[7] (Mo.App. 1975). Defendants’ final Point, that the City’s frequent annexations prevent the defendants from presenting an adequate defense is based upon the testimony of Mr. Holbert that as the Director of Annexation for the City he intended to recommend annexation of the entire Missouri River watershed area, but so far the City has filed a number of suits rather than one. Of course they cite no authority which would require the City to file only one suit to take in the entire watershed area. Mr. Holbert cannot make that decision; as he testified, he may recommend that annexation but it is the City legislative body which must make that decision, even if that recommendation should be made. The City may not seek annexation of any area without proving that annexation of that area is reasonable and necessary to the City’s growth and that it can furnish normal municipal service to the area within a reasonable time.

It would serve no purpose to set out the evidence adduced at trial for the reason we have concluded that it is substantial evidence supporting the findings of the trial court and will add nothing to the law of annexation now existing.

For these reasons we affirm the judgment of the trial court on Counts I and III of the City’s petition.

Judgments on Count I and III affirmed; judgment on Count II reversed and the cause is ordered remanded for further proceedings.

GUNN, P. J., and WEIER, J., concur.

      . Throughout this proceedings in the trial court all entries on behalf of the defendants prior to the entry of appearance referred to in this opinion were made in behalf of all of the defendants; no specification was made as to any particular defendants representation was being afforded to. Throughout the trial of the case and thereafter all documents, as they appear in the transcript, were for the “defendants.” Even in the brief no reference is made to which defendants counsel was representing.

      . Rule 52.09 V.A.M.R. was repealed and a new Rule 52 adopted effective December 1, 1972. It is the new Rule, Rule 52.08 which now, and at the time this proceeding was instituted and throughout the period of time it was pending, was in effect.