text:
    In re MARRIAGE OF Betty J. and L. Ralph HAGGARD. Betty J. HAGGARD, Respondent, v. L. Ralph HAGGARD, Appellant.
    No. 60957.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    William Harrison Norton, John H. Norton, North Kansas City, for appellant.
    Bruce K. Kirby, P. Wayne Kuhlman, Liberty, for respondent.
   DONNELLY, Judge.

The marriage of respondent Betty J. Haggard and appellant L. Ralph Haggard was dissolved in a decree entered September 18, 1975, in the Circuit Court of Clay County, Missouri. The decree incorporated a separation agreement that had been negotiated and entered into by the parties. Subparagraph (e)(5) of the decree provided that appellant would pay maintenance to respondent of $275.00 per month. There is no provision in the separation agreement that the terms of the agreement were not to be set forth in the decree of dissolution.

Appellant fell behind in maintenance payments in a total amount of $7,615.28. Respondent sought and was granted, in the Circuit Court of Clay County, execution on the divorce decree under § 452.325.5, RSMo 1978. An automobile owned by appellant was seized under a writ of garnishment issued to enforce the execution. Appellant deposited $7,615.28 with the Clerk of the Circuit Court to be held in lieu of sale of the automobile.

Appellant filed a motion to quash the execution and garnishment on July 12, 1978. The motion was overruled by the Circuit Court on August 23, 1978. A notice of appeal was then filed in this Court. The order overruling the motion to quash is an appealable order. § 512.020, RSMo 1978; Nelson v. Nelson, 516 S.W.2d 574, 577 (Mo. App.1974).

Appellant contends that the maintenance agreement is a private contract and that § 452.325.5, RSMo 1978, by permitting execution and enforcement of the agreement without the breach of the agreement being reduced to judgment, violates Art. I, §§ 10, 11, and 13 of the Missouri Constitution.

Respondent contends that the maintenance agreement became part of the dissolution decree under § 452.325.5 since the agreement did not provide to the contrary, and that § 452.325.5 does not violate the Constitution by permitting execution under the decree.

Section 452.325, RSMo 1978, reads as follows:

“1. To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support and visitation of their children.
“2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
“3. If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support, and maintenance in accordance with the provisions of sections 452.-330, 452.335 and 452.340.
“4. If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
“(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
“(2) If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.
“5. Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
“6. Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.”

Historically, in Missouri, “alimony” awarded upon a “divorce” was either contractual or decretal. North v. North, 339 Mo. 1226, 100 S.W.2d 582 (1936); Vorhof v. Vorhof, 532 S.W.2d 830 (Mo.App.1975); Nelson v. Nelson, 516 S.W.2d 574 (Mo.App. 1974). A general discussion of the topic may be found in Nelson, supra, at 577-581.

Decretal alimony was determined by the court, although often pursuant to stipulated suggestions submitted to the court by the parties and incorporated into the decree. Decretal alimony could be subsequently modified by the court. Since decretal alimony was a part of the divorce judgment, it could be enforced by a levy of execution.

Contractual support, on the other hand, was a matter of private agreement between the parties even though the agreement could be incorporated into the court’s decree. As the subject of a private contract, it was not modifiable except by mutual consent or by reason of fraud, duress, or illegality, and was enforceable only by a separate suit on the contract. “The courts of this State * * * [were] perpetually troubled with the distinction between contractual support and decretal alimony.” Vorhof, 532 S.W.2d supra at 832.

The historical pattern was changed by the Dissolution of Marriage Act, Laws of 1973, p. 470, §§ 452.300 et seq., RSMo 1978, eff. January 1, 1974. “Divorce” is now “dissolution of marriage.” “Alimony” is now “maintenance.”

There are now three categories of maintenance. Section 452.325, at issue in this case, provides that the parties to a dissolution may enter into a written separation agreement containing provisions, inter alia, for maintenance of either of the parties, § 452.325.1. Unless the court finds the terms of the agreement to be unconscionable, they are binding on the court, § 452.-325.2. Unless the agreement expressly states otherwise, its terms are to be incorporated into the court’s decree, § 452.325.-4(1), and “are enforceable by all remedies available for the enforcement of a judgment, * * § 452.325.5.

Two categories of maintenance are thus provided in § 452.325. The parties can keep the maintenance completely a private contractual agreement by expressly so providing in the terms of a separation agreement. This would correspond to the former contractual support. Alternatively, the parties can permit the maintenance agreement to be included in the decree and thus be enforceable as a judgment. This would seem to correspond, at least in part, to the former decretal alimony. The correspondence would not be complete because court modification of the maintenance agreement is a matter to be separately determined by the parties, § 452.325.6, and because it is unclear whether the limitations which applied to decretal alimony should also apply to § 452.325.4(1) maintenance.

The third form of maintenance available is provided in § 452.335, RSMo 1978. This maintenance is awarded by the court in the absence of any separation agreement under § 452.325. It is not at issue in this case.

Respondent is correct in arguing that the maintenance agreement here at issue comes within the terms of § 452.325.-4(1) since it was not expressly excluded from the decree, and is, therefore, enforceable as a judgment under § 452.325.5. The question which remains is whether § 452.-325.5 is unconstitutional because it authorizes maintenance agreements to be enforced as judgments.

Appellant’s first contention is that the due process clause of the Missouri Constitution, Art. I, § 10, is violated. Appellant’s claim is that the maintenance agreement at issue is a private contract and that due process is violated because allowing execution on a mere contractual obligation is not simply a change of remedy or procedure but is an elimination of his substantive right to defend a breach of contract action. Vorhof, supra, is cited. The claim is without merit. The maintenance agreement must be viewed as an element of the dissolution judgment and decree rather than as a private contract. The means by which the judgment is enforced has not been changed by § 452.325.

Vorhof, supra, is not in point because the maintenance agreement at issue in that case was a private contract under the law prior to § 452.325. To have permitted, in Vorhof, enforcement of the private contract by execution would have eliminated the respondent’s right to defend his conduct in a breach of contract action.

Appellant next asserts that Mo.Const. Art. I, § 11, is violated. Article I, § 11, provides, “That no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law.” Appellant cites Davis v. Broughton, 382 S.W.2d 219 (Mo.App.1964).

This claim is without merit. In State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976), Davis v. Broughton, supra, was among the cases overruled. Although the specific statute at issue in Stanhope was § 452.345 rather than § 452.325, the Court’s holding that, “trial courts are henceforth empowered to punish by imprisonment for contempt the failure of a person to comply with orders for payment of maintenance and child support * * * ” id. at 575, is equally applicable to § 542.325.

Appellant finally asserts that Mo.Const. Art. I, § 13, is violated. Article I, § 13 provides, “That no ex post facto law, nor law impairing the obligation of contracts * * * can be enacted.” Appellant implies that the obligation of contracts clause has been violated in the present case. Andrus v. Business Men’s Acc. Ass’n. of America, 283 Mo. 442, 223 S.W. 70 (1920) is cited.

Andrus is of no help to appellant. In Andrus this Court held that the State did not abridge the right to contract by enacting a statute declaring suicide to be no defense to an action on an insurance policy.

Article I, § 13, prohibits the State from enacting a law which impairs the rights of parties to an existing contract. See State v. Miller, 50 Mo. 129, 133 (1872); Vorhof v. Vorhof, 532 S.W.2d 830, 832-833 (Mo.App.1975); 1 Antieau, Modern Constitutional Law § 3:26-3:32; 1 Cooley’s Constitutional Limitations (8th ed.) 582-586. In the instant case, the statute at issue was enacted and made effective prior to the time at which appellant and respondent entered into the maintenance agreement and prior to the dissolution of their marriage. Vorhof, supra, cited by appellant, is distinguishable in that the contract at issue in that case was entered into before the effective date of the statute at issue. Additionally, § 452.325 does not require that the parties to a maintenance agreement make the agreement enforceable as a judgment. It requires only that they make their intentions on this issue clear and explicit. We find no violation of Art. I, § 13.

We note appellant’s contention that it “is undisputed by the parties herein that the treatment throughout this case of the wife’s award of maintenance is contractual and not decretal.” He has filed a supplemental transcript to demonstrate that when appellant previously moved in the trial court to modify the maintenance award, because of changed circumstances, respondent opposed the motion on the grounds that the maintenance as allowed by the court, “is a contractual agreement between petitioner and respondent, and is not modifiable by this Court * * Apparently, the trial court did not rule on appellant’s motion to modify. In any event, we cannot rule the question on the record before us.

The order of August 23, 1978, overruling the motion to quash is affirmed.

All concur.


source: Caselaw Access Project

author:
DONNELLY, Judge.
      WELLIVER, Judge,

license: Public Domain

text:
    Elizabeth Ann MONTGOMERY, Plaintiff-Appellant, v. Bessie CLARKSON, Defendant-Respondent, and Charles I. Stewart et al., Defendants.
    No. 61221.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.

      Richard N. Brown, Brown & Casey, Brookfield, for plaintiff-appellant.
    Harry L. Porter, Marceline, for defendant-respondent.
    Jack D. Lukehart, Brunswick, Robert G. Smith, Brookfield, for defendants.
   DONNELLY, Judge.

This is a suit for partition of land in Chariton County, Missouri.

On January 28,1943, a Warranty Deed to the land was executed, naming as grantees “James E. Stewart and Nancy E. Stewart, jointly.” Nancy E. Stewart was the niece of James E. Stewart. Both grantees are deceased. James E. Stewart died in February, 1944. Nancy E. Stewart died August 16, 1976.

The trial court denied partition, and found that the deed, dated January 28, 1943, “vested title in said premises in James E. Stewart and Nancy E. Stewart as joint tenants with the right of survivorship; that Nancy E. Stewart survived the said James E. Stewart; that Nancy E. Stewart was the sole owner of said premises at the time of her death; that Bessie Clarkson acquired title to said premises under the will of Nancy E. Stewart.”

An appeal was taken to the Missouri Court of Appeals, Western District, where the judgment of the trial court was reversed. On March 13, 1979, this Court ordered the cause transferred. It will be decided here the same as on original appeal. Mo.Const. Art. V, § 10.

Section 442.450, RSMo 1978, is involved here. It reads as follows:

“Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.”

In Lemmons v. Reynolds, 170 Mo. 227, 234, 71 S.W. 135, 136 (1902), the testatrix devised “to my two sons James Conda Reynolds and John W. Reynolds the following described real estate * * This Court held that the will devised the property to James and John as tenants in common and not as joint tenants and said:

“It is essentially true that the intention of the testator shall be sought and effectuated in construing and enforcing wills, but this rock-ribbed rule of construction, so strictly and faithfully followed in this state, is subject to this very vital qualification, to wit, that it must not conflict with any inflexible rule or requirement of law. Such is the case here. The statute [now § 442.450] has declared the effect of a conveyance or devise of real estate in the event that the grant or devise does not expressly declare that a joint tenancy is intended. No such intention is expressly declared in this will, * * *. It is therefore not within the power or province of the courts, under any rule of interpretation, or to carry out any unexpressed intention of the grantor or testator, to construe such a grant or devise to be a joint tenancy, for the statute says it is a tenancy in common. Grantors or testators who do not wish the statute to apply, and to create only a tenancy in common, are given the right to so arrange it; but they must expressly declare in the grant or devise that a joint tenancy is intended, or else the courts must construe it to be a tenancy in common. There is no distinction under the statute between a deed and a will in this regard.”

In Cohen v. Herbert, 205 Mo. 587, 549, 104 S.W. 84, 86 (1907), the testator devised the property in suit to his “said daughters Julia and Victoria jointly.” This Court, relying on the predecessor of § 442.460, held "that by the will of Eyam E. Cohen, his daughters Julia and Victoria became tenants in common of the property in controversy * ⅜ ‡ I!

In McVey v. Phillips, 259 S.W. 1066, 1066 (Mo.1924), the deed in question, on its face, created a tenancy in common. This Court held that what is now § 442.450 does not prevent reformation of a deed so as to create a joint tenancy, and said:

“The statute (section 2273, R.S.1919) does not abolish joint tenancies, but defines the manner in which they can be created. The policy opposed to survivor-ships (Rodney v. Landau, 104 Mo. loe. cit. 259, 15 S.W. 962) tends against a construction of an ambiguous conveyance such as would result in the creation of a joint tenancy, but in no way does either statute or policy render joint tenancies unlawful; nor does the statute prevent the reformation of a deed so as to cause it to create a joint tenancy, if that was the contract or intent of the parties affected, and the proof is sufficiently strong of facts which put the reforming power of equity in motion.”

In State ex rel. Ashauer v. Hostetter, 344 Mo. 665, 670, 127 S.W.2d 697, 699 (banc 1939), this Court cited Lemmons and Cohen with approval and said:

“Sec. 3114, R.S.1929 [now § 442.450], did not abolish joint tenancies. Rodney v. Landau, 104 Mo. 251, 15 S.W. 962; Lemmons v. Reynolds et al., 170 Mo. 227, 71 S.W. 135; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202, 61 L.R.A. 166, 96 Am.St.Rep. 486; Cohen v. Herbert et al., 205 Mo. 537, 104 S.W. 84, 120 Am.St.Rep. 772. But Sec. 3114 makes it plain that a joint tenancy can be created in grantees or devisees, who are not executors, trustees or husband and wife, in one way only, and that is to expressly say so, by using the term ‘joint tenancy.’ The statute says ‘expressly declared.’ The word expressly ⅛ the adverb; express is the adjective, which means ‘directly and distinctly stated; expressed, not merely implied or left to inference.’ Webster’s New International Dictionary, Second Ed.”

In taking this position, Missouri is sustained by a majority of the cases. In 2 American Law of Property, § 6.8, at page 18, statutes such as § 442.450 are referred to as follows:

“There is some disagreement in the eases applying these statutes as to what will be a sufficient affirmative expression of intent to create a joint tenancy. Thus, a conveyance to two persons ‘jointly’ has been held in some cases to be sufficient, but the better view, sustained by a majority of the cases, is that the word ‘jointly’ is equivocal and is as often used, at least by those unlearned in the law, to describe ownership in common as it is to describe the technical estate of joint tenancy with right of survivorship.”

We have reexamined the existing law (Mo.Const. Art. V, § 10) and reaffirm the holdings in Lemmons, Cohen and Ashauer. Insofar as MeVey conflicts with those holdings, it should no longer be followed.

The trial court erroneously applied the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

The judgment is reversed and the cause is remanded for partition.

BARDGETT, C. J., RENDLEN and SEILER, JJ., and HENLEY and FINCH, Senior Judges concur.

WELLIVER, J., concurs in separate concurring opinion filed.

MORGAN, J., not sitting.

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

WELLIVER, Judge,

concurring.

I concur in the result of the principal opinion. I do not believe that McVey v. Phillips, 259 S.W. 1065 (Mo.1924), conflicts with the principal opinion and I would reserve the right to reform a deed in an appropriate case where there is clear, cogent and convincing evidence that the language of the deed did not represent the intent of the parties at the time of the drafting of the instrument. There is no such evidence in this record.


author: SEILER, Judge.

text:
    COLLECTOR OF REVENUE OF the CITY OF ST. LOUIS, Missouri, Plaintiff-Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS (Parcels 24-069 and 24-070), Defendant-Appellant.
    No. 60950.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Bruce Nangle, Clayton, for appellants. James Wilson, Jack L. Koehr, James E. Crowe, St. Louis, for respondent.
    Jackson County, Mo., Jon Reginald Gray, Kansas City, for amicus curiae.
   SEILER, Judge.

This is an appeal from the judgment of the circuit court of the City of St. Louis foreclosing tax liens under the Municipal Land Reutilization Law (MLRL), §§ 92.700 et seq., RSMo 1978. Appellant contends that the trial court erred in overruling the appellant’s motion to dismiss on the ground that MLRL is constitutionally defective on its face for failing to provide for personal service of process on owners of tax delinquent property or for an affidavit stating that the owner is unavailable. This court has jurisdiction over the appeal because the case involves the construction of a revenue law, Mo.Const. art. V, § 3. We affirm.

The facts in this case are undisputed. Pursuant to authority granted under § 92.-720 of the MLRL, respondent filed a petition in the circuit court on October 9, 1975, to foreclose tax liens on a number of parcels of real estate, including parcels designated as 24-069 and 24-070, based upon delinquent taxes for the years 1971, 1972, 1973 and 1974. Respondent sought a judgment covering the delinquent taxes, interest, collector’s fees, attorney’s fees, collector’s commission and court costs, as well as an order authorizing sale of the properties at public auction. Pursuant to § 92.760 of the MLRL, notice of the filing of suit was mailed on October 3, 1975 to appellant, Deluxe Auto Body Services, Inc., record owner of the two parcels of land involved in this case. Pursuant to § 92.755 of the MLRL, notice of the foreclosure along with a legal description of the property and the name and address of the property owner, was published four times, once a week, during successive weeks, in a daily newspaper of general circulation. After a hearing on the constitutional issue, the court entered judgment against appellant for $3,641.93 for parcel 24r-069 and $1,715.72 for parcel 24-070.

Appellant submits that the MLRL provisions for notice of foreclosure through publication and a letter to the last known property owner of record, §§ 92.755 and 92.760, RSMo 1978, violate the guarantees of the due process clauses of the Fourteenth Amendment to the United States Constitution and art. I, § 10 of the Missouri Constitution. Appellant also contends that the statute’s authorization of notice of foreclosure without personal service of process fails to satisfy the standards of procedure established by this court in rule 54. Respondent submits that the trial court did not err in overruling appellant’s motion to dismiss because the MLRL notice provisions satisfy due process requirements and comply with rule 54.18 as service authorized by statute.

Appellant cites Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) as authority for its contention that due process requires personal service of process for property owners in the foreclosure suits. In Mul-lane, the court held that a New York statute providing for judicial settlement of trust fund accounts violated the Fourteenth Amendment because it provided for notice solely through publication, even when the names and addresses of persons having interests in the trust fund are known to the trustee. The court upheld notice by publication for beneficiaries whose interests were unknown to the trustee, but stated that “[wjhere the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” 339 U.S. at 318, 70 S.Ct. at 659. The court did not, however, require personal service of process upon known beneficiaries of the fund. The court stated “[t]he statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand . . . [T]he mails today are recognized as an efficient and inexpensive means of communication.” 339 U.S. at 319, 70 S.Ct. at 660.

In Nelson v. City of New York, 352 U.S. 103, 77 S.Ct. 195, 1 L.Ed.2d 171 (1956), the court held that mailed notices of a special tax foreclosure satisfied due process requirements. In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), the court held unconstitutional notice solely through publication for condemnation proceedings. The court restated the due process test of Mullane. “The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question.” 371 U.S. at 212-13, 83 S.Ct. at 282. The court concluded that the due process requirement for notice was “an obligation which the mailing of a single letter would have discharged.” Id. at 214, 83 S.Ct. at 283. More recently, the court affirmed two federal three-judge district court decisions upholding an Illinois statute, similar to the provisions in the MLRL in question here, authorizing notice by publication and mail for the sale of tax delinquent real estate. Catoor v. Blair, 358 F.Supp. 815 (N.D.Ill.), aff’d mem., 414 U.S. 990, 94 S.Ct. 345, 38 L.Ed.2d 231 (1973); Balthazar v. Mari Ltd., 301 F.Supp. 103 (NJD.Ill.), aff’d mem., 396 U.S. 114, 90 S.Ct. 397, 24 L.Ed.2d 307 (1969). Like § 92.760 of the MLRL at issue in the case at bar, the Illinois statute provided for a letter of notice to be sent “to the person shown by the current collector’s warrant book to be the party in whose name the taxes were last assessed.” Ill.Rev.Stat. Ch. 120, § 711.

Appellant cites the decisions of two state supreme courts, Township of Montville v. Block 69, Lot 10, 74 N.J. 1, 376 A.2d 909 (1977) and Dow v. State, 396 Mich. 192, 240 N.W.2d 450 (1976), as authority for the contention that notice short of personal service of process in foreclosure proceedings violates the due process clause. Both courts held unconstitutional statutes authorizing notice of foreclosure solely through publication, but both courts also made clear that notice mailed to the property owner would be constitutional under the due process clause. The New Jersey Supreme Court explicitly stated in Township of Montville that “where an owner’s name and address appear on the municipality’s tax rolls, notice must be sent by mail before a taxpayer’s right to redeem his property may be foreclosed.” 376 A.2d at 918. The Michigan court stated in Dow that “[pjersonal service is not required. Notice by mail is adequate.” 240 N.W.2d at 459.

Appellant also contends that the statute’s authorization of notice of foreclosure without personal service of process falls below the standards of procedure established by this court in rule 54, in regard to the service of process in civil cases. But rule 54.18 provides that “[w]here a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules.” Accordingly, notice under the MLRL is not improper for failure to conform to the rules of civil procedure promulgated by this court.

Because the notice given through publication and the mail, under § 92.755 and 92.760 of the MLRL, is reasonably calculated to reach tax delinquent property owners, we uphold the constitutionality of the MLRL under the Fourteenth Amendment to the United States Constitution and art. I, § 10 of the Missouri Constitution. The judgment of the circuit court is affirmed.

BARDGETT, C. J., and DONNELLY, RENDLEN, WELLIVER and MORGAN, JJ., concur.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . In Collector of Revenue for City of St. Louis, Missouri v. Parcels of Land Encumbered with Delinquent Tax Liens, 566 S.W.2d 475 (Mo. banc 1978), the same law was challenged on the ground that the provision that failure of the collector to mail notice would not invalidate the proceedings was unconstitutional. The challenge was overruled, it being held that the taxpayer, under the circumstances of the case, had no standing to raise the issue.


author: WELLIVER, Judge.

text:
    Arthur Lee RICE, Appellant, v. STATE of Missouri, Respondent.
    No. 61167.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.

      Raymond Howard, Jr., Justin J. Meehan, Howard, Singer & Meehan, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
   WELLIVER, Judge.

Appellant filed a Rule 27.26 motion to set aside and vacate a judgment and sentence imposed for second degree murder based on a plea of guilty. The trial court denied the motion without evidentiary hearing on the ground that it did not present an issue of fact or question of law. Movant appealed to the Missouri Court of Appeals, Eastern District, which affirmed. Upon application of appellant, we ordered the case transferred to this court. The case will be determined in this court the same as on original appeal. Rule 83.09; Mo.Const. art. 5, § 10. We affirm.

On February 8, 1975, a 16 year old male named Kevin Gary was found by St. Louis police lying on a city sidewalk. He was pronounced dead of gunshot wounds on arrival at St. Louis City Hospital. An indictment was filed in connection with Gary’s death charging appellant Arthur Rice in one count with first degree murder and in a second count with first degree attempted robbery by means of a dangerous and deadly weapon. Appellant was then an 18 year old male native of St. Louis with no prior convictions.

On March 7, 1975, Robert M. Kaiser appeared as retained attorney for appellant and thereafter filed motions for discovery and inspection, separate trial, and suppression of identification testimony. On December 10, 1975, a hearing was held before the Honorable Harry M. James, Judge of Division No. 19 of the Twenty-Second Judicial Circuit. Present at the hearing were the appellant, his attorney, Robert M. Kaiser, and Assistant Circuit Attorney Henry J. Fredericks. A transcript of the hearing shows that the state elected to reduce the charge in the first count to second degree murder and to dismiss the robbery charge. In response, the attorney for appellant announced that appellant would change his plea to guilty.

The court then spoke directly with appellant. In response to the court’s questions, appellant indicated that he had authorized his attorney to change his plea and that he was not then under the influence of drugs or alcohol. The court asked appellant whether he understood that he could have the charges tried by a jury, that he had a right to confront witnesses who would testify against him, and that through his attorney he could call and examine witnesses in his own behalf. The court then inquired whether appellant was asking to waive all those rights and privileges and was asking the court to accept his plea to the charge of second degree murder; whether the appellant had discussed his case with his attorney and was satisfied with the advice he had received; whether the appellant knew that if a jury had found him guilty of second degree murder that they could sentence him to any period of years — a hundred years — in the penitentiary; whether appellant understood that a plea of guilty is the same as though a jury had found him guilty; whether appellant had been told that if the court accepted the plea of guilty and the recommendations of the prosecution, that the appellant would be sentenced to twenty years in the Missouri Department of Corrections. To all of these questions the appellant responded, “Yes, sir.”

The court asked the Assistant Circuit Attorney to state what he expected the state’s evidence would show. The prosecutor outlined the following account. The victim of the fatal shooting, Kevin Gary, had been walking with Maurice Gilmore when they met a third person, Keith Johnson. While the three were talking on the sidewalk, four men ran toward them and one demanded the victim’s coat. When the victim resisted, one of the four men grasped the coat and attempted to take it. Another of the four urged the man who grasped the coat to shoot the victim. One of the four did fire a shot, mortally wounding Gary. Subsequently, Maurice Gilmore picked appellant’s photograph from several which the police showed him, and identified appellant as one of the group of four who had attempted to take the victim’s coat, and as one who had held a pistol. On February 11, 1975, three days after the shooting, Gilmore viewed the appellant in a police line-up and again identified appellant as being one of the four, and as having a pistol in his hand. The appellant told the police that he had been in the home of William and Lillian Checks at the time of the shooting, but the Checks contradicted this alibi. Appellant also told the police that he had told Thelma Wallace to summon help, but Wallace would not corroborate this claim.

After this recitation of the state’s case, the court asked the appellant whether the prosecutor’s account was substantially correct. Appellant admitted that it was, with the sole reservation that he had asked a nearby resident to call for help. The court then asked whether appellant, together with others, attempted to steal a coat from a man and when he resisted, appellant shot him. Appellant admitted these allegations and gave a description of the shooting incident in his own terms that was consistent with the prosecutor’s description. The court accepted the plea upon the express finding that it was voluntarily made, and sentenced appellant to twenty years in the Missouri Department of Corrections.

Appellant presents three general grounds in support of his motion to vacate the conviction: “(a) Petitioner did not make a knowing and voluntary plea of guilty in that he was coerced, misled, and intimidated; (b) Petitioner did not knowlingly [sic] and voluntarily waive his right to a jury trial in that he was coerced, misled and intimidated; (c) Petitioner did not have effective assistance of counsel by Robert M. Kaiser.” Appellant catalogues nine “factual grounds” in support of his motion. Five of these allegations concern conduct of his retained attorney, i. e., that the attorney refused to make an investigation of appellant’s case because appellant could not afford to pay private investigators $1500 in fees; that his attorney never explained to him the range of punishment possible with second degree murder and that the attorney “intimidated, misled, and coerced” the appellant to plead guilty by telling him that the family of the victim “had hired the best prosecutor in Missouri,” that appellant would have no witnesses for his defense but that sixteen to forty witnesses would testify against him, and that the trial court would not permit appellant to submit to a lie detector test to establish his innocence. The other four allegations concern the conduct of the trial court in the appellant’s guilty plea hearing, i. e., that the trial court failed to inquire into assertions made by the appellant to the effect that the shooting victim had a gun “which established self defense to the murder charge; that the court “coerced, intimidated and misled” the appellant to plead guilty by stating that upon a jury finding of guilt he “would be sentenced to ‘100 years’ in the penetentiary [sic];” that the court did not make a finding that the appellant in fact knew the possible range of sentence in a conviction for second degree murder; and that the court did not make a finding that the appellant voluntarily waived jury trial and voluntarily pleaded guilty.

The sole question presented on appeal is whether the trial court erred in denying appellant’s motion for postconviction relief without affording him an evidentiary hearing on the factual allegations contained in the motion. The standard for determining whether a Rule 27.26 movant is entitled to an evidentiary hearing is that stated in Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975): “A 27.26 movant, in order to be entitled to an eviden-tiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing. (Emphasis in original.) This standard has been applied consistently by Missouri appellate courts to support the denial of an evidentiary hearing on a Rule 27.26 motion for relief from a judgment of conviction of second degree murder based on a guilty plea. James V. State, 571 S.W.2d 127, 128 (Mo.App.1978); Tillman v. State, 570 S.W.2d 844, 845 (Mo. App.1978); Breeland v. State, 568 S.W.2d 564 (Mo.App.1978); Giles v. State, 562 S.W.2d 106, 110 (Mo.App.1977); Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977); Hooper v. State, 541 S.W.2d 773, 774 (Mo. App.1976); Shepherd v. State, 540 S.W.2d 619, 620 (Mo.App.1976); Taylor v. State, 539 S.W.2d 589, 590 (Mo.App.1976); Winston v. State, 533 S.W.2d 709, 714 (Mo.App.1976); Fisk v. State, 515 S.W.2d 865, 866 (Mo.App. 1974).

In overruling the motion to vacate, the trial court made specific findings of fact and conclusions of law as required by Rule 27.26(i), Fields v. State, 572 S.W.2d 477, 482 (Mo. banc 1978). The court considered each of appellant’s allegations separately, compared the allegations with the transcript of the guilty plea hearing, and found that each failed at least one of the three requirements for entitlement to an evidentiary hearing. Our review is confined “to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.” Rule 27.26(j); O’Neil v. State, 502 S.W.2d 342, 343 (Mo.1973); McClure v. State, 470 S.W.2d 548, 551 (Mo. 1971); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968).

The trial court found that appellant’s allegation that his attorney refused to adequately investigate “facts and witnesses” merely stated conclusions, and so did not warrant extension of an evidentiary hearing. Where a plea of guilty has been entered, the adequacy of representation is immaterial unless counsel was so incompetent that the plea was not entered voluntarily and with understanding of the nature of the charge. Matthews v. State, 501 S.W.2d 44, 47 (Mo.1973); Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971). The claim that an attorney’s investigation of a case is inadequate must allege what specific information the attorney failed to discover, that reasonable investigation would have disclosed that information, and that the information would have aided or improved appellant’s position. Smith, 513 S.W.2d at 411; Curry v. State, 504 S.W.2d 97, 99 (Mo.1974). Appellant’s motion does not identify any particular item of information or name any particular witness that the attorney failed to seek out, and does not allege that had such information been available appellant would not have entered a guilty plea. Failure to make such specific allegations renders a 27.26 motion vulnerable to denial without an evidentiary hearing under the Smith standard because the motion fails to allege facts which entitle mov-ant to relief. We find that the trial court’s overruling of the motion without an eviden-tiary hearing on this allegation was not clearly erroneous.

Appellant alleges that his attorney never explained the range of punishment with second degree murder and that his attorney allowed the court in the plea hearing to coerce his guilty plea by threatening a hundred year sentence if a jury were to assess punishment. An attorney has an obligation to inform his client of the possible range of punishment of the offense to which he pleads. Smith, 513 S.W.2d at 411; Clemmons v. State, 573 S.W.2d 419, 420 (Mo.App.1978); Barber v. State, 564 S.W.2d 914, 916 (Mo.App.1978); Stewart v. State, 542 S.W.2d 544, 545 (Mo.App.1976). However, the transcript of the guilty plea hearing in this case shows that the trial court explained the maximum range of punishment for second degree murder to the appellant before accepting his guilty plea. The court advised appellant that a jury “can sentence you to the penitentiary for any number of years ... a hundred years.” This explanation did not exaggerate the maximum punishment. The explanation did not state the minimum punishment, which would be not less than ten years in prison. § 559.030 RSMo 1969 (repealed Laws of Mo.1975, p. 408); § 565.008.2 RSMo 1978. The failure of the court to accurately apprise the appellant of the minimum punishment does not render appellant’s plea involuntary. Regardless of whether appellant’s attorney informed him of the minimum punishment, the transcript of the plea hearing shows that the appellant adequately understood the consequences of his guilty plea from the court’s explanation and that he had agreed to a punishment substantially exceeding the possible minimum sentence of ten years.

Appellant alleges that the trial court in the guilty plea hearing did not inquire into a possible claim of self-defense suggested in statements made by the appellant. (See note 1, supra). The court’s failure to explore defenses that might be available to the appellant, without more, does not entitle him to relief. In denying appellant’s 27.26 motion, the trial court stated that none of the essentials of self-defense are shown in appellant’s motion or in the transcript of the guilty plea hearing, citing State v. Ruffin, 535 S.W.2d 135, 137-38 (Mo.App.1976), and indicated that the alie-gations in the motion therefore pleaded conclusions rather than facts. Even if all the elements of self-defense were present in appellant’s account of the shooting incident, a voluntary and intelligent waiver of such defenses can be effective. “A plea of guilty is a waiver of all defenses.” Rayford v. State, 504 S.W.2d 285, 289 (Mo.App.1973). Accord, Lipscomb v. United States, 273 F.2d 860, 865 (8th Cir. 1960); State v. Conley, 123 S.W.2d 103, 105 (Mo.1938); Bounds v. State, 556 S.W.2d 497, 498 (Mo.App.1977); Lewis v. State, 539 S.W.2d 578, 579 (Mo. App.1976); Although Rule 25.04 prohibits a trial court from accepting an equivocal guilty plea, Doepke v. State, 465 S.W.2d 507, 512 (Mo.1971), a defendant’s mere statement of facts that might support a defense of justification does not render his guilty plea so equivocal that it must be rejected. Lewis v. State, 539 S.W.2d 578, 579 (Mo.App.1976); Rayford v. State, 504 S.W.2d 285, 289 (Mo.App.1973). Even protestations of innocence made contemporaneously with a plea of guilty will not vitiate a voluntary and intelligent waiver of defenses. North Carolina v. Alford, 400 U.S. 25, 33, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Bounds v. State, 556 S.W.2d 497, 498 (Mo. App.1977). Appellant waived his right to litigate the issue of self-defense when he entered his guilty plea. In accepting a criminal defendant’s guilty plea, the court has no duty to inquire into defenses which the defendant has elected not to assert at trial.

The trial court also found that appellant’s claim that his attorney coerced his plea by telling him the number of available witnesses involved merely a matter of trial strategy and tactics and would not entitle appellant to relief; that the allegation concerning his attorney’s representation that a polygraph test would not be ruled admissible involved a correct statement of the law and would not entitle appellant to relief; and that the allegations relating to the court’s questioning of appellant at the guilty plea hearing were refuted by the transcript of that hearing. We find that the trial court’s determination of these issues was not clearly erroneous.

Appellant contends that the need “to consider the plea against the totality of events and circumstances that preceded its entry,” Lewis, 539 S.W.2d at 579 and Rayford, 504 S.W.2d at 289, requires an eviden-tiary hearing to determine whether the plea was voluntarily entered. This is not the law. The Smith standard for extending an evidentiary hearing is not altered when the 27.26 movant alleges that his plea was rendered involuntary by a claim of self-defense. The fact that Rayford and Lewis extended an evidentiary hearing merely reflects the fact that the trial court in those cases found that the motion met the Smith requirements. In the instant case, the trial court found movant’s allegations were refuted by the transcript of the guilty plea hearing. We find no error which would warrant reversal. Judgment affirmed.

BARDGETT, C. J., DONNELLY, REND-LEN and MORGAN, JJ., and WELBORN, Special Judge, concur.

SEILER, J., concurs in result.

HIGGINS, not participating because not a member of the court when cause was submitted.

      . After the prosecutor outlined the state’s case, the following colloquy between the court and the appellant took place:
      THE COURT: Did you hear what the Assistant Circuit Attorney has said?
      MR. RICE: Yes, sir.
      Q. Is what he said substantially correct?
      A. All except that when I knocked on the door and asked them to call the ambulance which I did.
      Q. Well, you heard him recite the fact that you together with others attempted to steal a leather coat off of a man and when he resisted he was shot; did that take place?
      A. Yes, sir but the man had a gun. The man, he had a gun; that’s why it happened.
      Q. Are you telling me that you were going to steal this coat and this man resisted your taking the coat and he had a gun?
      A. Yes, sir, but I didn’t know where the coat thing — See, Johnny Redd he went over there first and we was all standing on the other side of the street and Johnny Redd went over there and did something to him and said something to him, I don’t know what it was and then I guess the dude, he you know — renigged and Johnny Redd called us all over and we ran over there and the dude you know — he had a gun and Johnny Redd you know — he tried to grab him again and he told me he s got a gun so I came up with mine.

      Did you fire your gun?
      Yes, sir, and Gary fired his too.
      All right. Did you shoot him?
      Yes, sir.
      You fired your gun at this man; is that right?
      Yes, sir.
      And you are telling me that here in open court?
      Yes, sir.
      Now this man died; didn’t he?
      Yes.

      Q. And you are asking me to accept your plea of guilty?
      A. Yes, sir.
      Q. With the full understanding and knowledge that if I accept it I am going to sentence you to twenty years in the Missouri Department of Corrections?
      A. Yes, sir.
      THE COURT; All right, Let the record show that I accept this defendant’s plea of guilty because he told me he is guilty and I find that it was voluntarily made in open court and on his plea of guilty, Arthur Rice, you are sentenced to 20 years in the Missouri Department of Corrections; of course, jail-time will be credited to you.

        . Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), overruled other aspects of Smith, but did not alter the requirement that a 27.26 motion state facts which if true would entitle the mov-ant to relief. Baker v. State, 584 S.W.2d 65, at 66 (Mo. banc June 19, 1979). In fact, Fields implicitly approved the requirement that a 27.-26 motion state facts and not merely conclusions. One purpose for the adoption in Fields of the rule that an indigent 27.26 movant is entitled to court-appointed counsel is the avoidance of any harsh impact of the Smith rule on the pro se movant. Id. at 483.

      . State v. Meaney, 563 S.W.2d 117 (Mo.App. 1978) is not inconsistent with our holding. In Meaney, the trial court refused to accept a plea of guilty to a charge of manslaughter after the defendant stated that he had shot the victim only in self-defense. The defendant appealed in a subsequent conviction of second degree murder, alleging error in the trial court’s rejection of his plea of guilty to the reduced charge. The court held that a criminal defendant has no constitutional right to have his guilty plea accepted, but did not hold that a trial court must reject as equivocal a guilty plea tendered simultaneously with an assertion that the defendant acted in self-defense.

      . This rule is based on the view that a defendant who believes he is innocent should not be forced to assert a potentially disastrous defense, but should be permitted to judge for himself whether a jury would be convinced of his innocence. Alford, 400 U.S. at 33, 91 S.Ct. 160. “Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term.” Id. at 37, 91 S.Ct. at 167.


author: MORGAN, Judge.

text:
    Joseph JACKSON, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 60963.
    Supreme Court of Missouri, en banc.
    Sept. 11, 1979.

      Thomas C. Mummert, III, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   MORGAN, Judge.

Appellant was convicted initially of murder in the first degree under § 559.010, RSMo 1969, and the jury assessed his punishment at death. The judgment entered thereon, was reversed by this court, for reasons not now relevant, in State v. Jackson, 463 S.W.2d 857 (Mo. banc 1971). Thereafter, on November 8, 1971, appellant entered a plea of guilty to a charge of felony murder and was sentenced to life imprisonment.

On May 17, 1976, appellant filed a pro se motion to vacate the conviction and sentence under Rule 27.26. ' The trial court denied the relief sought without appointment of counsel or the holding of an evi-dentiary hearing. After affirmance of that ruling by the Court of Appeals, Eastern District, we sustained appellant’s application to transfer the cause and now consider the same as on original appeal.

Grounds asserted in the motion were, generally, as follows: (1) that movant-ap-pellant was threatened by the trial court judge that unless he entered a plea of guilty, he would be sentenced to death on the charge of murder in the first degree; (2) that the same threat was conveyed to him by his court appointed counsel; (3) that the trial judge personified to him the authority of the State of Missouri and he thereby was coerced into entering a plea of guilty; and, (4) that he now declared his innocence of the charge.

The “Memorandum Opinion” filed by the trial court, wherein relief was denied, is rather extensive; but we need only to point up a portion thereof:

On Monday, November 8, 1971, this Mov-ant entered a plea of guilty to charge of Murder First Degree. A transcript of this plea was made, however due to death of the court reporter, Theodore Stan-droff, said transcript is not readily available, however, this Court knows the following:
1. This Court has never conversed with movant or any other accused either in chambers or elsewhere save for the actual taking of a plea, and then only in open court.
2. This Court has never ‘threatened’ accused or any other accused or importuned the entry of a plea of guilty to any charge by any defendant, and in fact, as hereinafter will be mentioned, has refused to accept pleas of guilty where the Court was not satisfied, beyond all doubt, after what this Court regards as thorough interrogation, that said pleas of guilty were knowingly, intelligently, freely and voluntarily made.

Therein, it was mentioned also that: “It is settled law that a Court may take judicial notice of its own files and records in post-conviction proceedings. Parks v. State, 518 S.W.2d 181 (Mo.App.1974).” Although we cannot determine the extent to which “delay” influenced the decision, the trial court did observe that: “The court may take this fact into consideration in considering the merits of the claim, Rhoades v. State, 504 S.W.2d 291 (Mo.App.1973), and in this regard, it is further noted that by and large four and one-half years is a substantial time for one to wait where he considers himself and his rights infringed upon.” Lastly, it was concluded that: “. . . said Motion does not present a question of law or an issue of fact which requires such a hearing.”

There can be little dispute as to the state of the law dispositive of this cause. To be entitled to an evidentiary hearing, a 27.26 movant must plead facts, not conclusions, which if true would entitle him to relief; and in a case such as this, only facts which tend to refute the legality of the plea are relevant. If the record conclusively substantiates that movant did in fact knowingly and voluntarily enter a plea of guilty, denial of an evidentiary hearing is proper. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Chapman v. State, 579 S.W.2d 855 (Mo.App.1979); James v. State, 571 S.W.2d 127 (Mo.App.1978); and, Mo. Digest, Criminal Law, 998(19).

In the instant case, however, it is impossible for this or any other reviewing court to resolve whether or not the plea proceedings met recognized standards. Very simply, the total absence of a record has created circumstances such as to deny any meaningful review of the judgment entered by the trial court. Compare Arthur Lee Rice v. State of Missouri, 585 S.W.2d 488 (1979), wherein comparable issues were resolved on the basis of a complete record.

The trial judge, as heretofore noted, has declared that there was no attempt to coerce movant into pleading guilty but only a proper, and necessary, explanation as to the range of punishment authorized by statute for the particular crime. To the contrary, movant alleges that the possibility of death as a penalty was used by way of a threat to coerce his plea. There is nothing of record to refute the latter allegation, and the controlling question is whether or not a factual issue exists. We believe that it does and that an evidentiary hearing is mandated.

We think some further observations are called for: (1) when the total lack of a record is coupled with allegations challenging the propriety of past actions of a presently sitting judge, we believe that basic fairness dictates that the latter disqualify in the cause and request assignment of another judge; and (2) that counsel be appointed so that the hearing had will put the issue to rest on the record.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

BARDGETT, C. J., and DONNELLY, RENDLEN, SEILER and WELLIVER, JJ., concur.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . Although we resolve the case on an issue other than failure to appoint counsel, we do note that the per se rule mandating such appointment adopted in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), was given prospective application only and is not controlling here.

      . The fact that the maximum range of authorized punishment was, in itself, a threatening alternative is insufficient to render the guilty plea involuntary. Nor does fear that the death penalty might be imposed render a plea vulnerable to such an attack. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Taylor v. State, 539 S.W.2d 589, 590 (Mo.App.1976); State v. Clay, 520 S.W.2d 172, 176 (Mo.App.1975); Beeman v. State, 502 S.W.2d 254, 255 (Mo. 1973). Plea bargaining, by its very nature, assumes that a defendant sought to avoid the possibility of receiving a maximum sentence. See also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . It is of some interest that Rule 42(b) of the Federal Rules of Criminal Procedure requires assignment of a criminal contempt proceeding to a judge other than the judge initiating the proceeding. United States v. Meyer, 462 F.2d 827 (D.C.1972), on remand 346 F.Supp. 973. In Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970), under facts comparable to those of the instant case, the court said, 1. c. 415, that: “We think it runs against the grain of fairness to say that the same judge may consider his own crucial testimony and recollection rebutting petitioner’s claim and simultaneously pass upon the credibility of all witnesses in weighing the evidence. * * * It has long been recognized under similar circumstances that a judge cannot serve as a material witness as well as the trier of fact.”


author: PUDLOWSKI, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Anthony ROGERS, Defendant-Appellant.
    No. 40039.
    Missouri Court of Appeals, Eastern District, Division One.
    June 19, 1979.

      Paul E. Ground, Manchester, for defendant-appellant.
    George A. Peach, Circuit Atty., Gordon L. Ankney, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Marjorie Wholey Haines, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Judge.

Defendant was found guilty by a jury of murder in the second degree. The court sentenced him to twenty years in the Department of Corrections. Defendant duly appealed and alleged four errors of the trial court.

From the State’s evidence we learn that the shooting which resulted in the death of Ray B. Gladish occurred about 2:34 p.m., November 7, 1976, at Calvary Cemetery, located in the northeast section of the City of St. Louis. At the shooting the defendant also received a gunshot wound and the slug remained in his shoulder. Other pertinent facts will be discussed as the court reviews the appellant’s contentions.

Appellant first contends that he was denied the right to trial by an impartial jury as guaranteed by the 6th and 14th Amendments to the United States Constitution. We cannot agree.

On October 27, 1977, an article appeared in the St. Louis Globe-Democrat reporting the acquittal of Tommie Overstreet of murder and robbery. Overstreet had been previously convicted of first degree murder and first degree robbery and sentenced to concurrent terms of life and five years. He appealed to the Missouri Court of Appeals, Eastern District, which affirmed his conviction. However, the Supreme Court of Missouri reversed, holding that the admission in evidence of the bullet removed from Ov-erstreet’s buttocks was reversible error. Overstreet was granted a new trial and acquitted.

Appellant’s situation was remarkably similar to that of Overstreet. Appellant, like Overstreet, was charged with first degree murder and first degree robbery. Like Overstreet, he had sustained a bullet wound in which the bullet did not exit his body. However, unlike Overstreet, the bullet was not introduced into evidence against him because appellant refused the state permission to remove the bullet. Appellant’s motion for refusing surgery was sustained based upon the Overstreet case.

On October 27, 1977, the day appellant’s case was to go to the jury, the St. Louis Globe-Democrat reported the acquittal of Overstreet. The article contained statements made by the St. Louis Circuit Attorney George Peach who was aware of the instant case being tried and that it would be submitted to the jury. The article read:

Tommie W. Overstreet, whose murder-robbery conviction was reversed by the Missouri Supreme Court on the grounds that surgical removal of a bullet for use as evidence against him was unconstitutional, won acquittal Wednesday in a new trial on the same charges.
“The score card should read Supreme Court 1, the people of St. Louis 0,” St. Louis Circuit Attorney George Peach said bitterly after Overstreet was found innocent by a jury that deliberated 2½ hours.
“Overstreet walked free today, and I wish someone else had to explain the result to the dead man’s family. It’s frustrating,” Peach said. St. Louis Globe-Democrat, Oct. 27, 1977 at 1A and 6A.

The article gave a history of the Over-street case and quoted the comments of the Circuit Attorney:

“We are forced to try this case with one hand tied behind our backs, and the fact finder (the jury) was deprived of hearing all the relevant evidence by a Supreme Court ruling which was based on a 1976 federal case, decided two years after we were presented with the problem.” Peach noted that “we obtained our order in 1974 for removal of the bullet under existing legal principles at the time” and Overstreet “was not harmed by the operation. The evidence was there, and we were forced to close our eyes to it.”

It came to the attention of the court that some of the jurors in appellant’s case might have read the article and thereby been prejudiced. Appellant moved for a mistrial.

We recognize that freedom of discussion should be given the widest range compatible with the essential requirements of the fair and orderly administration of justice. But that must not be allowed to divert a trial from the very purpose of the court system which is to adjudicate controversies in the tranquility and the solemnity of the courtroom according to legal procedure. The jury’s verdict must be based on evidence properly received in court and not from outside sources. Due process requires no less. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial court must take strong measures to insure that the balance is never weighed against the accused. Appellate tribunals have a duty to make an independent evaluation of the circumstances to insure that publicity has not had a prejudicial effect on jurors. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 6 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Receipt by a juror of possibly prejudicial information during a trial of a felony case requires that the verdict be set aside unless the state affirmatively shows that the jurors were not subject to improper influence. State v. Raspberry, 452 S.W.2d 169[15] (Mo.1970); State v. Jones, 363 Mo. 998, 255 S.W.2d 801[8] (1953). The function of an appellate court on a denial of mistrial is to determine, as a matter of law, whether the trial court abused its discretion in refusing to declare a mistrial. The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where prejudicial effect can be removed in no other way. State v. Raspberry, supra [8].

Our review of the circumstances indicates that appellant was not prejudiced. The state more than affirmatively met its burden. The experienced trial court adroitly questioned the jurors individually and collectively in such a way so as to not highlight any prejudicial effect the article may have had on the jurors. Both attorneys were free to ask questions and defense counsel took advantage of the opportunity. The interrogation of the jurors occupies twenty-six pages in the transcript. As was said in State v. Cooper, 541 S.W.2d 40 (Mo. App.1976):

Familiarity with facts, or purported facts, from news reports without the formation of an opinion does not necessarily require disqualification of a juror. State v. Spica, 389 S.W.2d 35 (Mo.1965), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966). Defendant’s right to a fair and impartial jury does not extend to having a jury panel which is completely devoid of any news reports, and as the United States Supreme Court recently ruled in Nebraska Press Association v. Steward, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), “. . . [TJhese cases demonstrate that pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.” Id. at 553, 96 S.Ct. at 2800.

Although the frustration publicly conveyed by the Circuit Attorney to the news media was malapropos, imprudent and disrespectful, this.court is unable to find any prejudice to appellant. We rule that the trial court did not abuse its discretion.

Appellant’s second contention is that he was denied the right to an impartial jury in violation of the 6th and 14th Amendments to the United States Constitution due to improper questions asked by the prosecutor. We cannot agree.

As mentioned, appellant had been wounded but refused to have the bullet removed. Mr. Ankney, the assistant prosecutor, asked,

“Doctor, the wound or the bullet that is located close to the skin in the shoulder area in the back, would that be difficult to remove?"
The doctor responded, “I don’t feel it would, no.”

The defense attorney objected and moved for a mistrial. The court sustained the objection, admonished the jury to disregard the answer and denied the motion for a new trial.

The granting of a mistrial rests in the sound discretion of the trial court who is in a better position than the appellate court to evaluate the prejudicial effect of the occurrence initiating the request for a mistrial. State v. Morgan, 546 S.W.2d 207 (Mo.App.1977). The reviewing court, in order to hold that a failure to grant mistrial was a reversible error, must conclude as a matter of law from the entire record, that the error was so prejudicial that its effect was not removed by the action of the trial court. State v. Harris, 585 S.W.2d 145 (Mo. App.1976).

Our review of the entire record does not warrant a reversal of the trial court. Any prejudice suffered by the appellant was cured when the trial court instructed the jury to disregard the answer.

Appellant’s third contention is that the seizure of keys from the hospital dressing attendant by a police officer without a warrant or appellant’s consent, at a time when probable cause did not exist to suspect that he had committed any crime, violated his right to be free of unreasonable seizures as guaranteed by the 4th and 14th Amendments to the United States Constitution. Due to the unusual facts of this case we cannot agree.

Wolf v. Cobrado, 388 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), held that the “security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Glause" of the 14th Amendment. Id, at 27=28, 69 S.Ct. at 1861. However it wasn’t until Mapp v. Ohio, 867 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that the exclusionary rule, which had previously rendered inadmissible illegally seized evidence by federal officers in a federal prosecution, was held binding upon the states. Thus after Mapp v. Ohio, supra, illegally seized evidence by state officers was inadmissible in a state prosecution.

We turn to the question of whether the seizure of keys by the police was unreasonable and illegal. Officer Johnson of the St. Louis Metropolitan Police Department found the appellant Anthony Rogers critically injured with multiple bullet wounds in Calvary Cemetery in North St. Louis. Rogers explained that four, black males, in a 1974 Cadillac, had shot him. Johnson accompanied Rogers to City Hospital Number Two where Rogers was taken to the main floor emergency room. There a dressing attendant, a hospital employee, cut away Rogers’ clothing and inventoried his belonginp while Officer Johnson was present. After the inventory was completed, Officer Johnson obtained Rogers’ clothing and belongings by signing a hospital receipt. Rogers’ possessions wore taken in anticipation of the prosecution of his alleged assailants. Among the items received was a key ring with eight keys. Unknown to the police officer at the time, Rogers had taken the keys from Rayburn B. Gladish whom Rogers had robbed and shot. At no time prior to or contemporaneous with the seizure did Officer Johnson suspect Rogers to be guilty of a crime. The keys were subsequently identified by Mrs. Gladish as belonging to her husband. Gladish subsequently died from the gunshot wounds.

Appellant argues: (1) Warrantless searches, subject to a few well-delineated exceptions, are per se constitutionally offensive, citing State v. Peterson, 525 S.W.2d 599 (Mo.App.1975). (2) Two recent Eighth Circuit cases, United States v. Heisman, 503 F.2d 1284 (8th Cir. 1974), and United States v. Goldenstein, 456 F.2d 1006, cert. denied sub nom. Ray v. United States, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1972), divide the “well-delineated exceptions” into three categories: (a) searches made with the consent of the person being searched, (b) searches made incident to lawful arrest, and (c) searches made in emergency circumstances. (3) None of the “well-delineated exceptions” are applicable to this case. (4) Ergo, the seizure was illegal.

We disagree with appellant’s contention that there are only three “well-delineated exceptions” to the warrant requirement. As was said in Kansas City v. Butters, 507 S.W.2d 49, 53 (Mo.App.1974):

A properly issued search warrant does not stand alone as the only means by which the Fourth Amendment requirement of reasonableness can be met. The Fourth Amendment’s absolute admonition against unreasonable searches is not violated, (1) by search incident to lawful arrest, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), (2) by protective searches by officers for weapons upon less than probable cause to arrest, Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (3) by seizure of items falling within the “plain view” doctrine, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), nor (4) by the search of a motor vehicle where “probable cause” exists to believe that it contains a substance which offends against the law, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

As was said in State v. Quinn, 565 S.W.2d 665, 671 (Mo.App.1978), other exceptions may be added to this list:

consent, State v. Rush, 497 S.W.2d 213, 215-216 (Mo.App.1973); exigent circumstances, Wiley, 522 S.W.2d at 293-295; inventory searches, Opperman, 96 S.Ct. at 3098; State v. Archter, 512 S.W.2d 894, 904 (Mo.App.1974); officer sees a person “drop evidence” and the officer seizes it, State v. Hall, 534 S.W.2d 508, 510 (Mo. App.1976); State v. Boykins, 434 S.W.2d 484, 486 (Mo.1968); State v. Baines, 394 S.W.2d 312, 315-316 (Mo.1965), cert. den. 384 U.S. 992, 86 S.Ct. 1900, 16 L.Ed.2d 1008; State v. Jefferson, 391 S.W.2d 885, 888 (Mo.1965); property is abandoned, State v. Brewer, 540 S.W.2d 229, 231 (Mo. App.1976); State v. Tarantola, 461 S.W.2d 848, 851 (Mo.1971); State v. Stavricos, 506 S.W.2d 51, 58 (Mo.App.1974), and State v. Jackson, 476 S.W.2d 540, 542 (Mo.1972).

This list is not exhaustive but in any event there are considerably more than three “well-delineated exceptions” to the warrant requirement.

While it is often articulated in the cases that warrantless searches are per se constitutionally offensive subject to few exceptions, the fundamental inquiry of the courts in considering 4th Amendment issues is whether or not a search or seizure is reasonable under all the circumstances. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Mulligan v. United States, 358 F.2d 604, 607 (8th Cir. 1966).

We cannot conclude that the seizure was unreasonable. Officer Johnson found appellant Rogers critically wounded and in need of immediate medical attention. Appellant told the police officer that four black males in a 1974 Cadillac had shot him for no apparent reason. This type of occurrence, unfortunately, is not unusual in the metropolitan St. Louis area. Officer Johnson believed Rogers and accompanied him to the hospital. There the officer watched the dressing attendant cut away Rogers’ clothes and inventory his personal possessions. The officer, still under the mistaken belief that Rogers was the victim of an assault, took custody of the personal possessions which had been inventoried by the hospital attendant. Officer Johnson seized appellant Rogers’ belongings, including the keys, in order to preserve them as evidence for the prosecution of his fictitious assailants. These possessions were direct, physical evidence that would be relevant to such a prosecution. Under the above circumstances the seizure of the keys was not unreasonable.

The final contention made by the appellant is that the trial court erred in admitting a hearsay statement as a spontaneous utterance.

The evidence revealed that the victim, Buford Gladish, was a sixty-six year old man who was in the custom of visiting the cemetery. On Sunday, November 7, 1976, he visited Calvary Cemetery. Mrs. Helen Caito also visited the cemetery that day. As Mrs. Caito drove through the cemetery she passed Gladish’s parked car. She noticed that Gladish sat in the driver’s seat and that he was accompanied by a young black male who sat in the front passengers’ seat. While visiting at a grave site Mrs. Caito heard what she described as “hammering noises.” Upon leaving the cemetery, some five minutes later, the woman again passed Gladish’s automobile. Mrs. Caito observed that Gladish’s head was slumped backwards against the driver’s seat and that he appeared very pale. The car’s left side window was broken and there was glass and blood on the pavement. The young man that previously accompanied Gladish was not present. The witness then alighted from her car and approached, Gladish. His eyes were closed and she made no attempt to communicate. Mrs. Caito went immediately to a nearby police station and returned to the scene with an officer some ten minutes later.

The victim was placed in an ambulance and taken to City Hospital Number Two. Officer Larry McDaniel, who rode with Gladish to the hospital, watched the victim continuously. The officer observed that Gladish showed no sign of regaining consciousness; nor did the victim respond when the ambulance attendants inserted tubes into his nose and needles into his arms.

Upon arriving at the emergency room the victim was still unconscious. Five minutes later a doctor asked Mr. Gladish, “What happened?” Officer McDaniel who had remained alongside the victim heard Gladish respond that a young black male got in his car and shot him, and that Gladish had shot his assailant back. This statement was made fourteen minutes after the victim was placed in the ambulance. The total estimated time from the shooting to the statement was thirty to forty minutes. Due to the gunshot wound Buford Gladish died of hemorrhagic shock: loss of blood.

The appellant argues that the victim’s response to the doctor’s inquiry is not admissible as a spontaneous statement. We do not agree.

Viewing the evidence in the light most favorable to the state, the victim’s response indicated spontaneity. It is generally held that spontaneous exclamations and statements uttered contemporaneously with or shortly after an unusual occurrence, usually the crime involved, by a person who is still under the influence of its effects are admissible into evidence. The rationale of this exception to the hearsay rule is that where the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event, the utterance may be taken as expressing the true belief of the declarant. Under this exception the statement need not be strictly contemporaneous with the act described. The test of the admissibility of a spontaneous statement is not when the statement was made, but whether under all the circumstances, the speaker may be considered as speaking under the stress of the nervous excitement produced by the event, or whether that excitement had died away. 22A C.J.S. Criminal Law § 662(3) (1961) at 671. The essential test of whether a hearsay state-merit is admissible as a spontaneous statement is neither the time nor place of its utterance but whether the utterance was made under circumstances which indicate that it is trustworthy. The burden is on one offering the declaration to prove the facts which warrant its admission. State v. Hook, 432 S.W.2d 349, 353 (Mo.App.1968).

The State has carried its burden. There is no doubt that the statement was made while the victim was under the influence of the event. He made no statements prior to the one at issue. He remained unconscious while in the presence of the officer. He gave no indication of being conscious while being transported to the hospital in the ambulance despite the insertion of the tubes and needles into his body. He remained unconscious at the hospital and as he gradually regained consciousness he responded to the doctor’s inquiry.

This court concludes that the statement was spontaneous, trustworthy and was produced by the incident and we will not disturb the trial court’s ruling.

Judgment of the trial court is affirmed.

SNYDER, P. J., and SMITH, J., concur.

      . See State v. Overstreet, 551 S.W.2d 621 (Mo. banc 1977).


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Richard A. RICHARDS, Appellant.
    Nos. 39388, 39507.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 3, 1979.

      Runge & Gumbel, Jonathan Isbell, Col-linsville, Ill., for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Weldon W. Perry, Jr., Richard Thurman, Asst. Attys. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Murder in the first degree — felony-murder.

The defendant was convicted by a jury of first degree murder (felony-murder) of the city marshall of Silex, Missouri. The jury assessed punishment at life imprisonment. We affirm.

Defendant did not file a motion for a new trial. Nothing was preserved for appellate review. State v. Collett, 542 S.W.2d 783, 785 [1] (Mo. banc 1976). Defendant asks for relief under the “plain error” provisions of Rule 27.20(c). He contends a “manifest injustice” has been done. It is not necessary for us to state why a “manifest injustice” has not been done, yet, we may do so if we so choose. State v. Enscoe, 548 S.W.2d 568, 571 [6] (Mo. banc 1977). We hold the defendant has suffered no manifest injustice. We will review defendant’s arguments as we believe that course to be beneficial.

Defendant claims substantial deprivation of his constitutional rights by the admission into evidence of a bullet removed from his right hip pursuant to a court order. The bullet was lodged approximately four inches below the surface of the skin. He relies heavily on State v. Overstreet, 551 S.W.2d 621 (Mo. banc 1977) and also on United States v. Crowder, 177 U.S.App.D.C. 165, 543 F.2d 312 (D.C. Cir. 1976), cert. den., 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977). Overstreet, which had not been decided at the time of the removal of the bullet, suggests four requirements to determine whether or not a surgical operation in search of evidence is reasonable. These requirements are: (1) A judicial adversary hearing must be conducted whereby the defendant is represented by counsel and is given the opportunity to cross-examine and offer witnesses; (2) An opportunity for appellate review must be available prior to the surgical removal; (3) The evidence sought to be surgically removed must be relevant; (4) Surgical procedures should be a minor intrusion without risk of harm or injury to the defendant. 551 S.W.2d at 627 [1].

As required by Overstreet, the defendant here was accorded a sufficient adversary hearing prior to the removal of the bullet. The court found that an operation was necessary in order to obtain relevant evidence — the bullet. The defendant had ample time to file a writ of prohibition, but did not do so,

The last requirement of Overstreet relates to the medical question whether it would be reasonable to require the defendant to undergo the operation. The court found that the removal of the bullet did not constitute an unreasonable search and seizure for the reasons that the doctor indicated: This would not be a minor or major operation. There were no vital organs in the particular area where the bullet was lodged. The operation would not be a difficult one with the x-ray equipment then available. There would no no danger to life, limb, tissue, muscle, or ligaments. It would be in the best interest of the defendant to have the bullet removed.

The court further found that the removal of the bullet did not shock the conscience of the court. The court used reasonable discretion in ordering the removal of the bullet. Apparently, the bullet was removed without complication. Accordingly, the defendant was not deprived of any substantial constitutional right. See Creamer v. State, 299 Ga. 511, 192 S.E.2d 350, 352-53 [1-3] (1972), cert. dismissed, 410 U.S. 975, 93 S.Ct. 1454, 35 L.Ed.2d 709 (1973).

Defendant next complains he suffered manifest injustice when, on a writ of habeas corpus, he was discharged from custody in Illinois only to be rearrested by federal officers and returned to Missouri as a fugitive from justice in interstate commerce. Illinois had arrested the defendant on an extradition warrant. The Illinois court, disclaiming any finding of guilt or innocence, discharged the defendant because the state of Missouri had not shown the defendant to have been in Missouri at the time of the commission of the crime. We find no manifest injustice.

Even assuming the invalidity of the rearrest by the federal officers, that invalidity would not affect the jurisdiction of the Missouri court to try the defendant. Huffman v. State, 487 S.W.2d 549, 553 [1] (Mo. 1972); State v. Howe, 364 S.W.2d 546, 547 [2] (Mo.1963), cert. den., 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698 (1963). Nor is there any res judicata effect arising from the discharge of the defendant in Illinois on the writ of habeas corpus. The issue decided there was not the .guilt or innocence of the defendant. The additional issues and evidence submitted to the court below make res judicata inapplicable. Keeton v. Gaiser, 55 S.W.2d 302, 304 [5] (Mo. banc 1932); Ex parte Messina, 233 Mo.App. 1234, 128 S.W.2d 1082, 1085 [6-7] (1939).

Defendant next complains of ineffective assistance of counsel. The record does not sufficiently develop facts essential to a meaningful review. Accordingly, review of such allegations is declined. State v. Bibbs, 461 S.W.2d 755, 760-61 [9] (Mo. 1970).

The judgment is affirmed.

DOWD, P. J., and SATZ, J., concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. James A. LOVELACE, Appellant.
    No. 40305.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 3, 1979.

      Hale W. Brown, Kirkwood, for appellant.
    Bradshaw Smith, Pros. Atty., Cape Girar-deau, John D. Ashcroft, Atty. Gen., Paul R. Otto, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, for respondent.
   DOWD, Presiding Judge.

James A. Lovelace was convicted by a jury of three counts of the sale of a controlled substance, marijuana, and sentenced to five years on Count I, five years on Count II (two years concurrent with sentence imposed on Count I and three years consecutive to it) and five years on Count III to run concurrent with sentence on Count I.

This case comes here after transfer by the Missouri Supreme Court, which determined that jurisdiction was properly in the Court of Appeals. On appeal, appellant raises four points contending that Chapter 195 of the Missouri Revised Statutes is unconstitutional, that appellant’s motion for directed verdict [sic] of acquittal should have been sustained, that the entrapment instructions were erroneously submitted, and that a mistrial should have been declared when the prosecutor cross-examined appellant concerning a previous sale of marijuana for which appellant was not convicted.

Appellant’s first point challenges Chapter 195, the Narcotic Drug Act, as violative of Article I, § 31, Article II, § 1, and Article III, § 1 of the Missouri Constitution. These articles deal with the delegation and separation of powers. Appellant argues that the authority of the Missouri Division of Health to reclassify controlled substances and to amend their schedules is an unconstitutional delegation of the power to fix punishment because an amendment may result in a greater punishment. In support of his argument, appellant cites only one case, Howell v. State, 300 So.2d 774 (Miss.1974) which is not controlling in this state.

It is not necessary to determine if Chapter 195 is unconstitutional because appellant lacks standing to raise the issue. The general rule is that a constitutional challenge to a statute may only be made by one whose rights are adversely affected or are about to be harmfully affected by operation of the statute, State v. Brown, 502 S.W.2d 295, 305[20] (Mo.1973), and more specifically, he must be adversely affected by that particular aspect of the statute which he attacks. In State v. Randall, 540 S.W.2d 156, 160[7] (Mo.App.1976) wherein the defendant’s complaint that Chapter 195 was unconstitutional because it improperly delegated authority to the Division of Health to add controlled substances to the schedules was rejected on the grounds that he lacked standing where no action of the Division of Health affected him. Likewise here, no reclassification, amendment or other action of the Division of Health harmfully affected appellant, so he is without standing to raise the constitutional issue. However, we note that the issue was presented and rejected in State v. Davis, 450 S.W.2d 168, 170[1] (Mo.1970).

Appellant’s next point is that his motion for judgment of acquittal should have been sustained because the evidence was not sufficient for conviction in that there was no evidence showing that the substances obtained from appellant were the statutorily proscribed portions of marijuana as described in § 195.010(20) RSMo, 1975 Supp. Appellant’s argument in support of this point is that the testimony of the state’s expert witnesses did not indicate whether the samples tested were legally prohibited portions of the marijuana plant or whether the samples tested were portions excluded from statutory prohibition.

This argument is specifically refuted by § 195.180, RSMo 1969 which states that “the burden of proof of any exception, excuse, proviso or exemption [in any proceeding brought for enforcement of the provisions of Chapter 195], shall be upon the defendant.” The state proved the substances obtained from appellant were marijuana by the testimony of Everett Markway, Jr. and Affton Ware, forensic chemists for the Missouri State Highway Patrol. They testified that three chemical tests performed on the substances showed that they were marijuana. Once the state proved that fact, the burden was on appellant to prove that the substances were portions of the marijuana plant excluded from the statute. The record reveals no evidence to meet this burden. Thus, the state’s evidence that the substances were marijuana was sufficient to submit the matter to the jury. See, e. g., State v. Page, 395 S.W.2d 146, 148[3] (Mo. 1965).

Appellant’s third point follows:

“The Court erred in giving a verdict instruction on each of the three counts and the entrapment instructions numbered six, eight and ten which were referred to in each of the three verdict directing instructions for the reason that the said entrapment instructions required the jury to find entrapment on each of the three counts before they could find entrapment on any of the three counts and for the further reason that the state gave no evidence that could be considered beyond a reasonable doubt as was required by instructions numbered six, eight and ten, the entrapment instructions, and therefore such instruction was necessary and there was no evidence to support the giving of such an instruction and the court did thereby err.”

As we understand this point, appellant is contending the trial court erred in submitting three separate entrapment instructions to correspond with the three separate verdict-directing instructions. The entrapment instructions were tendered by appellant in accord with the practice mandated in the Notes on Use following MAI-CR 3.28 and 2.04. There was no error in giving three separate entrapment instructions.

Appellant’s final point is that the trial court should have declared a mistrial when the prosecutor asked defendant on cross-examination if he had not sold marijuana to Trooper Robert Currier one year earlier. The challenged cross-examination follows:

“Q. Mr. Lovelace, did you not, on September 19th, in the car being driven by Robert Currier on the way to the Ramada Inn to receive the Sixth Thousand and Fifty Dollars, ask Trooper Currier if he was not the man that a year ago you had sold thirty pounds to?
A. No, that is not correct.
Q. Am I close?
A. Yes; I asked him if he had bought thirty pounds a year ago because I knew of another transaction that had gone down at that time to somebody in Sike-ston.”

Defense counsel did not object or request a mistrial. The point was not preserved in appellant’s motion for new trial, and thus has not been preserved for appeal. State v. Duke, 534 S.W.2d 830, 831[1] (Mo.App.1976); State v. Tidwell, 500 S.W.2d 529, 531[2] (Mo.App.1973). And, we decline to apply the plain error doctrine, Rule 27.20(c), because we cannot find that the question resulted in manifest injustice or a miscarriage of justice, State v. Wendel, 542 S.W.2d 339, 343[14] (Mo.App.1976), inasmuch as appellant immediately thereafter explained what exactly he had asked Trooper Currier. Judgment is affirmed.

CRIST and SATZ, JJ., concur.

      . Rule 26.10 provides that motions for directed verdict are abolished and motions for judgment of acquittal are substituted therefor.

      . Missouri is one of several states adopting the Uniform Controlled Substances Act, which is embodied in Chapter 195.

      . Trooper Currier, a member of the Intelligence and Investigative section of the Missouri Highway Patrol, was the undercover agent to whom appellant allegedly sold marijuana.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Charles Glenn PARNELL, Appellant.
    No. 40359.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 3, 1979.
    Lawrence 0. Willbrand, St. Louis, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

Defendant Charles G. Parnell was charged with the shotgun murder of John Bradshaw. A jury found him guilty of manslaughter and the court sentenced him to six years’ imprisonment. Defendant has appealed, contending only that the court’s verdict-directing instruction, MAI-CR 2.40, erroneously omitted the permissible defensive elements of false appearance and the victim’s intoxication.

The issue is whether these defenses were warranted by the evidence: On July 17, 1977 defendant and victim John Bradshaw were in a group who were drinking behind a tavern. At one point Bradshaw was wrestling with another man and during that tussle Bradshaw ran into defendant. Bradshaw then took out his aggressions on defendant, using language such as, “You punk, what are you doing pulling a knife on me.” After increased abusive language, Bradshaw and defendant scuffled and fell to the ground. Abusive language and scuffling continued between the two men for half an hour and defendant left the tavern. He went home, loaded his shotgun and had his daughter drive him back toward the tavern. The car stopped near the tavern and defendant got out holding his shotgun. Bradshaw walked toward defendant. A bystander told Bradshaw, “Don’t go down there, he’s got a gun.” By this time defendant and Bradshaw were yelling as they approached each other. Bradshaw continued walking toward defendant who was saying, “Don’t come any closer,” and, as Bradshaw neared the middle of the street defendant shot him, inflicting a mortal wound. Witnesses to the scene — and defendant himself — stated that Bradshaw at no time had any weapons in his hands.

As to the claimed false appearance, defendant contends that although Bradshaw was actually unarmed, the evidence was that Bradshaw’s appearance to him was otherwise. The record fails to support this. No witness testified to Bradshaw having anything in his hands, putting his hands in his pockets, nor did he give any sign of being armed. Defendant testified he did not know whether Bradshaw had a gun or “what he had on him.” On cross examination defendant said: “I don’t know whether he was reaching for something or not; he acted like he going to come at me.” We hold the evidence did not require the false-appearance submission. Defendant’s self-defense contention was adequately covered by paragraph two of MAI-CR 2.40 directing an acquittal if defendant believed he was in immediate danger and that it was necessary to shoot Bradshaw to protect himself from danger.

Defendant’s other contention challenges paragraph four of MAI-CR 2.40 because in submitting the issue of Bradshaw’s turbulent disposition the court omitted the parenthetical phrase “ordinarily or when under the influence of liquor.” Defendant bottoms his challenge on testimony that while at the tavern Bradshaw and “the rest of the guys were on whiskey.” We hold this evidence did not require a submission of Bradshaw’s disposition “when under the influence of liquor." This issue was sufficiently covered by paragraph four of MAI-CR 2.40 directing that if defendant knew Bradshaw had a reputation for violence that fact could be considered in deciding whether defendant had cause to fear injury by Bradshaw,

We hold the evidence did not require the trial court to include either the false appearance or intoxication clauses in its verdict-directing instruction.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.